Group Homes as Sex Police and the Role of the Olmstead Integration Mandate
N.Y.U. Review of Law & Social Change, Vol. 42, 2018
72 Pages Posted: 7 Oct 2018 Last revised: 20 Oct 2018
Date Written: August 1, 2018
Adults with intellectual disabilities who live in group homes possess the same complex range of sexual desires and identities as all adults do. However, in group homes throughout the United States, these adults are denied the ability to express their sexuality. This Article addresses the systematic failure of group homes to modify punitive and overprotective policies and to provide services related to sex and intimacy, creating an environment of sexual isolation. Although legal scholars have explored the complexity of disability and sexual consent capacity and examined sexual rights in the context of institutionalized care, they have yet to explore the ramifications of policies and practices within group homes under federal disability rights law. This Article takes on that task and concludes that group homes have an affirmative duty to support intellectually disabled adults in exercising choices around sex and intimacy.
In particular, this Article argues that Olmstead v. L.C. ex rel. Zimring and its mandate for community integration under Title II of the Americans with Disabilities Act provides the framework to challenge the sexual isolation of group home residents as disability-based discrimination under the ADA’s older integration mandate-sibling, Section 504 of the Rehabilitation Act. Some courts have begun to expand the reach of the integration mandate beyond the physical walls of confinement. It is through this lens that sexual rights can rise from the shadows as an essential aspect of full community integration alongside supports that include employment, education, and skills for daily living. The Article concludes by proposing reasonable modifications that group homes may undertake to avert sexual isolation, striving to balance the sexual rights of residents against the risk of exploitation and abuse that may arise in intimate relationships. A key modification would require group homes to create or adapt policies and procedures that begin to dismantle the bias, paternalism, and ableism that drives group-home decisions and perpetuates the sexual isolation of adults with intellectual disabilities.
Keywords: Disability, ADA, Americans with Disabilities Act, Intellectual Disability, Sexual Expression, Section 504, Civil Rights, Discrimination
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