The Role of Support in Sexual Decision-Making for People with Intellectual and Developmental Disabilities

Abstract

In response to Alexander Boni-Saenz, Sexuality and Incapacity, 76 Ohio St. L.J. 1201 (2015).

This Response analyzes three aspects of Boni-Saenz’s cognition-plus test. First, I position his normative and prescriptive proposals within an existing, robust conversation regarding legal capacity, SDM, and the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Scholars of international human rights law offer valuable insights on challenges of redefining legal capacity and implementing SDM. Advocates continue to debate and contest SDM as a practical, administrable, and measurable alternative. Second, I identify potential normative implications of incorporating SDM into domestic law, specifically for procedural and evidentiary law. Third, Boni-Saenz applies his test to the case of older adults with dementia in State v. Rayhons. I question a comparable application of cognition-plus to people with more severe intellectual and developmental disabilities (ID/DD) who are currently precluded from exercising sexual agency but may have the mental capability to do so. Boni-Saenz’s taxonomy of cognitive disabilities uses the onset of incapacity to distinguish “persistent acquired incapacity” from “persistent lifelong incapacity.” In his article, the former group is older adults while the latter have experienced intellectual and developmental disabilities since birth or early childhood, with no prior period of unimpaired cognitive functioning. This distinction matters with respect to assessing sexual decisions. I offer a number of factors unique to persons with ID/DD for Boni-Saenz to consider as he further develops cognition-plus.