Even if an individual with mental impairments falls short in one of these areas at the time of a capacity determination, this does not mean that the person will always lack sexual consent capacity. First, the condition that afflicts the person may be temporary. Second, any defect in knowledge, rationality, or voluntariness may be remedied in various ways to bring a person “up to” sexual consent capacity. If an individual lacks knowledge, sex education may be provided. If a person lacks rationality or voluntariness, treatment for the underlying condition that is causing the problem may help remedy the issue, although one should be alert to the possible negative adverse effects of certain medications on sexual performance.
Implementing sexual consent capacity assessment
Many mental health institutions assess the capacity for sexual consent by assuming that individuals with mental impairments lack capacity.12 These types of restrictive policies do not comport with a patient-centered understanding of sexual well-being nor are they consistent with a valid method for capacity assessment. They are likely to be the product of several factors, including lack of staff resources, lack of staff training, fear of legal liability, and negative attitudes toward sex among people with mental impairments. This is not to say that quality sexual consent capacity assessment is impossible. In his excellent article on this topic, Lyden13 provides useful practical guidance for conducting quality assessments, drawing on his experiences with the Center of Disability Services in New York. First, he proposes using multiple methods for gathering information about the individual who is being assessed, including the following:
• A review of relevant records (including information about reproductive ability, and psychiatric and developmental disabilities)
• Discussions with selected people who know or work with the individual being assessed (eg, parents, staff members at a residential provider agency)
• A face-to-face interview with the person that includes a mental status evaluation and a set of questions that elicit information about the person’s relevant knowledge and voluntariness
This helps ensure that the capacity assessment is contextual in nature and draws on the expertise and experience of the various parties that have come into contact with the person whose capacity is in question.
Second, Lyden suggests individualizing the assessment, by conducting it in a way that is mindful of the person’s communication impairments and of the sensitive nature of the topics involved. It is worth noting that an inquiry into sexual consent capacity can often be seen as invasive or inappropriate, particularly among certain demographic groups. Interviews should be handled in a culturally competent manner, minimizing privacy invasions while also recognizing that some probing may be necessary to fully assess psychological functioning.
Finally, Lyden recommends that capacity assessments be conducted with interdisciplinary teams. This approach has multiple advantages. First, it brings multiple perspectives—clinical, legal, social, and administrative—to the table in discussions of sexual consent capacity. This ensures that the capacity assessment is being done in accord with the professional standards of all of the relevant disciplines. In addition, the consultation of an attorney knowledgeable about a given state’s statutory and case law on sexual consent capacity will ensure that the capacity assessment conforms to existing legal standards, avoiding liability. Second, the committee format helps to avoid biases present in individual committee members’ judgments, and it may also help to diffuse liability exposure.
Discussing and assessing the capacity for sexual consent is not easy. The topics involved are sensitive, controversial, and important. Mental health professionals have a critical role to play in these activities, and individuals with mental impairments deserve capacity assessments that accurately reflect their psychological capabilities, respect their sexual rights, and protect them from sexual abuse.
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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