Going even further, the Supreme Court of New Jersey in State v Olivio seems only to require that one understand the “nature” of the sexual act. It ruled that sexual knowledge need only encompass “the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders, or possible adverse moral or social effects.”10 The New Jersey standard for sexual consent capacity is easily met, and some courts have seemingly declined to follow the test, perhaps because it may lead to adverse consequences for vulnerable populations in many circumstances.
Whichever legal test might apply, it provides only the categories of legally relevant consequences. It is up to the assessor of capacity to determine which specific consequences are at issue. These will depend on the specific sexual act in question as well as the context of the sexual behavior. For instance, the decision to engage in kissing may require less knowledge because the mechanics and consequences of the act are not as complex. Similarly, if one’s intended sexual partner is of the same anatomical sex, the decision to engage in intercourse will not require knowledge of pregnancy consequences.
While possessing sexual knowledge of some sort is a necessary condition for sexual consent capacity, it is not sufficient. One must also be able to incorporate that knowledge into a rational process of decision-making. The analysis of rationality involves assessing whether an individual’s perceptual and cognitive processes are sufficiently reliable. For example, a person who experiences visual and auditory hallucinations may not be able to distinguish sexual partners’ identities or expressions of consent and thus lacks capacity because of a defect in perception. An individual who cannot form valid inferences or experiences failures in attention or memory may also lack capacity because of a defect in cognition. Stavis and Walker-Hirsch11 provide a list of criteria, some of which might be helpful for assessing rationality, including:
• Awareness of person, time, place, and event
• Ability to differentiate truth from fantasy and lies
• Ability to differentiate one’s consent from another’s
• Possession of understandable responses to life experiences
• Ability to execute choice associated with a decision-making process.
Once one possesses sexual knowledge and adequate rationality, the voluntariness inquiry assesses whether an individual is capable of autonomous choice. At a basic level, this means that an individual must be capable of understanding that there is a choice to be made at all—that one can say yes or no to a sexual act. Beyond this, one must be willing to express volition, have the ability to control one’s choices, and not be overly susceptible to outside influence. This is the area in which a deficiency may be most likely to lead to exploitation or abuse. Therefore, it is imperative that the person who is assessing capacity consider the context of the sexual decision-making to see whether there are situations or sexual partners involved who might compromise the voluntariness capacity of the individual with mental impairments.
Ms. Smith, aged 64 years, has a history of depression and traumatic brain injury and has been in a nursing home for over 20 years. The nursing facility staff are concerned that she lacks capacity to consent to sexual behavior, primarily because of her poor memory. The following conclusions are offered based on a clinical interview and psychological testing.
Ms. Smith demonstrates adequate attention but moderate impairment in immediate memory and severe impairment in delayed memory. Remote autobiographical memory appeared adequate. Staff reports of Ms. Smith’s memory for recent incidents with her potential partner suggest recent episodic memory impairment. Ms. Smith’s own report of her memory performance is consistent with this observation. Depression was ruled out as a likely contributor to memory impairment through consideration of her scores on measures of depression and attention. Her current medications are also unlikely to be a major source of her memory difficulties. Ms. Smith’s performance on tests of executive function was of limited value in light of the potential influence of her bradykinesia. However, functional assessment, as noted below, revealed satisfactory reasoning, planning, and problem-solving.
Functional assessment of decision-making capacity yielded evidence that she appreciated that she always had a choice of engaging in sexual behavior, that she could understand and weigh the potential risks and benefits of such behavior in light of her own values, and that she could arrive at a decision that was consistent with her reasoning and values.
Ms. Smith appears to have the knowledge and many of the functional skills necessary for making informed, well-reasoned decisions regarding sexual behavior. However, her poor delayed memory precludes her learning from past experiences. This is particularly problematic because her partner has allegedly been seen mistreating Ms. Smith, but Ms. Smith has no recall of those episodes. However, she does report that she fears her partner could become aggressive. Since Ms. Smith cannot recall past experiences with her partner, she lacks the information that would be used to avoid future aversive or physically dangerous interactions. Her clinician finds that Ms. Smith lacks capacity to consent to sexual behavior. There is no reason, however, that she and her potential partner could not visit with each other if visits occur where staff can monitor their behavior.
Reproduced with permission from Assessment of Older Adults With Diminished Capacity: A Handbook for Psychologists.
Copyright © 2008 American Bar Association and American Psychological Association.
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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