Sexuality is an important aspect of the human experience. Sexual expression can help promote mental and physical health, and the needs associated with sexuality do not necessarily disappear just because one has mental impairments. At the same time, people with mental impairments, especially women, are at increased risk for sexual violence compared with the general population.1,2 Any analysis of sexual consent capacity must balance the need for sexual expression with this possibility of sexual harm. Psychiatrists and other mental health professionals are experts at assessing individuals’ psychological faculties, and they thus have a key role to play in assessing capacity for sexual consent.
This article outlines the basic concepts behind sexual consent capacity and provides some guidance on how to pursue capacity assessments.
The law is concerned with the capacity for sexual decision-making because of the central importance of consent in the legal regulation of sex. In a legal case for sexual assault, a prosecutor must typically prove that there was a lack of consent to the sexual act. This may be demonstrated through explicit dissent—a verbal no, for instance—but it may also be established by proving that a person lacked capacity to consent, regardless of whether he or she said yes or no. We all experience this lack of legal authority to engage in sexual decision-making during our youth.3
All states have adopted an age of consent rule that deprives minors of legal capacity, even if they might in fact have the psychological faculties for sexual decision-making. After becoming adults, we are presumed to possess the legal capacity to make decisions, which allows us to pursue our own unique conception of the good life. But this presumption of adult capacity is rebuttable. Adults may experience moments or long stretches of incapacity—whether because of intoxication, intellectual disability, or mental illness.
Simply having one of these conditions, however, is not sufficient to declare that one lacks capacity. Capacity determinations require a more particularized analysis that is both decision-specific and circumstance-specific.4 To say that it is decision-specific means that one must consider capacity as it relates to a particular decision, rather than to all decisions. For example, one may lack the capacity to manage one’s portfolio of stocks but still be able to make decisions about which pair of socks to wear in the morning.
The “capacity to consent to sex” is thus a somewhat misleading phrase, as sexuality may encompass a variety of different types of sexual acts, each of which may require its own capacity determination. Capacity must also be evaluated in the particular context in which the decision takes place because the capacity for a decision may fluctuate depending on the situation in which the decision is taken or on the individuals involved. For example, a person with Alzheimer disease may experience an episode of heightened impairment brought on by the time of day.5 Thus, capacity determinations are highly contextual.
Consent capacity: knowledge, rationality, voluntariness
The issue of sexual consent capacity arises in a variety of contexts. People with intellectual disabilities may wish to pursue sexual contacts when they become adults. Individuals with dementia may wish to preserve sexual relationships with long-term partners or others while undergoing cognitive decline. Or patients with a serious mental illness may wish to have sexual relations with others in a residential institution.
While there are several tools for the clinical assessment of sexual consent capacity, none have been generally accepted.6 Many of these instruments, however, rely on generally accepted principles for evaluation of consent capacity: knowledge, rationality, and voluntariness. These have been applied successfully to other domains, such as the capacity to consent to medical treatment.7
Mental health professionals must assess an individual’s sexual knowledge to guarantee that the person has adequate informational inputs into the decision-making process. How much must one know about a sexual act before being deemed capable of consenting to it? States vary significantly in the answer they provide to this question, and the differences typically revolve around the types of consequences of sex that are deemed to be legally relevant.
At one end of the spectrum are states like New York, which takes a broad view of what one should be capable of understanding. In People v Easley, the New York Court of Appeals, the state’s highest court, ruled that one must be capable of understanding not only the physical consequences of sex, such as sexually transmitted diseases and pregnancy, but also the moral consequences of sex.8 That is, one must have an appreciation of how one’s sexual behaviors might be judged by others in order to have capacity to engage in them. One can still flaunt prevailing sexual norms, but one must understand that one is doing so.
A less demanding approach is presented by North Dakota’s Supreme Court in State v Mosbrucker, which expressly rejected the New York test. Instead, it concluded that one must understand the “nature of the sexual act as well as its consequences such as pregnancy and sexually transmitted diseases but not the moral nature of their participation in the act of intercourse.”9
Dr. Boni-Saenz is Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology in Chicago. He reports no conflicts of interest concerning the subject matter of this article.
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8. People v Easley, 364 N.E.2d 1328 (NY; 1977).
9. State v Mosbrucker, 758 N.W.2d 663 (ND; 2008).
10. State v Olivio, 589 A.2d 597 (NJ; 1991).
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13. Lyden M. Assessment of sexual consent capacity. Sexual Disabil. 2007;25:3-20.