Abstract
This paper seeks to examine the notion of consent to sexual activity as it is applied to situations involving persons with mental disabilities both by both medical professionals and the law. This will be achieved by analysing sexuality and consent through the lens of disability theory and subsequently by including feminist theories on the notion of consent and of sexual activity generally where this serves to assist in coming to a genuine assessment of the nature and existence of consent to sexual activity for persons with mental disabilities. It is concluded that in order to ensure that genuine substantive consent to sexual activity on the part of the persons with mental illnesses is accurately assessed at both a civil and criminal level, a fusion of both feminist and disability theory into such assessments and adjudications is vital.
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Notes
Mental Illness: Although it cannot be said that mental illness can accurately have its borders drawn, in order to delineate its margins somewhat, section 3(2) of Ireland’s Mental Health Act, 2001 will be the frame of reference for ‘mental illness’. It provides that ‘mental illness’ includes “a state of mind of a person which affects the person’s thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons”. Severe Dementia: Similarly, section 3(2) of the 2001 Act defines ‘severe dementia’ as “a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression”. Intellectual Disability: No one definition of ‘intellectual disabilities’ exists. For the purposes of this paper the term will be given the definition provided by the World Health Organisation as encompassing any set of conditions, resulting from genetic, neurological, nutritional, social, traumatic or other factors occurring prior to birth, at birth, or during childhood up to the age of brain maturity, that affect intellectual development. These conditions result in a lifetime of lower than average overall capability for self-determination and general independent functioning and performance in vocational, social, and personal functions. In some instances these conditions may occur in conjunction with physical, sensory or psychiatric impairments of varying degree. Such conditions have variable impact on the individual, from minimal to severe. For the purposes of this paper, the term ‘persons with intellectual disabilities’ will be used and should be understood to encompass individuals on all points of the spectrum of cognitive functioning.
McCarthy and Thompson (1997).
McCarthy (1999).
Finger (1992).
Craft (1983).
Hattersley et al. (1987).
Koegel and Whitmore (1983).
McCarthy (1999).
Carlson (2001).
Crow (1996).
Schriempf (2001).
Shakespeare (2000).
Weis and Borges (1973).
McCarthy (1999).
Warshaw and Parrot (1991).
Gagnon, supra, n. 14.
McCarthy, supra, n. 8 at 65 and Simpson (1994, 16).
Wendell (1996).
Collins (1991).
Sampson (2006).
Pineau (1989).
Cowan (2007).
Gavey (1992).
McCarthy, Supra n. 8 at 56.
Ibid.
Shakespeare, Supra n. 12 at 160.
Ames and Samowitz (1995).
Lyden (2007).
McCarthy (1999).
Edgerton (1967).
McCarthy and Thompson (1996).
Lyden (2007).
McCarthy, supra n. 8, 75.
Lacey (1998).
For the most recent expansion of this theory by Nussbaum, see Nussbaum (2009).
In this regard, the writer has adopted the reasoning of Munby J in In the Matter of MM (an adult) [2009] 1 FLR 443 at 467 that:
…there are sound reasons of policy why the civil law and the criminal law should in this respect be the same, why the law should, as it were, speak with one voice and why there should not be any inconsistency of approach as between the criminal law and the civil law. In this context both the criminal law and the civil law serve the same important function: to protect the vulnerable from abuse and exploitation… Viewed from this perspective, X either has capacity to consent to sexual intercourse or she does not. It cannot depend upon the forensic context in which the question arises, for otherwise, it might be thought, the law would be brought into disrepute.
This provision states:
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
(2) B is unable to refuse if—
(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) he is unable to communicate such a choice to A.
(3) A person guilty of an offence under this section, if the touching involved—
(a) penetration of B’s anus or vagina with a part of A’s body or anything else,
(b) penetration of B’s mouth with A’s penis,
(c) penetration of A’s anus or vagina with a part of B’s body, or
(d) penetration of A’s mouth with B’s penis,
is liable, on conviction on indictment, to imprisonment for life.
(4) Unless subsection (3) applies, a person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.
[2006] EWHC 168 (Fam).
R. v. Morgan [1970] V.R. 337, 341.
Supra n. 39, para. 74 (Emphasis added).
Supra n. 39, para. 82 (Emphasis added).
[2009] 1 FLR 443.
Supra n. 43 at 469.
Ibid.
[2009] 1 WLR 1786.
Ibid., 1793.
Ibid., 1796.
Ibid., 1794.
Ibid., 1795.
McCarthy (1999).
McCarthy, supra n. 8, 146.
Ibid., 163.
Ibid., 212.
Carlson, supra n. 9, 140.
Lloyd (2001).
Sampson, supra n. 21, 279.
Donat and White (2000).
Ibid., 366.
Lloyd, supra n. 57, 725.
Siebers (1998).
Morris (1991).
French (1993).
Crow (1992).
Thomas (2004).
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This article is the culmination of papers delivered at both the ‘Feminist Disability Theories and the Law Workshop’ from the 11 to 12th of December 2009 at the School of Law, Emory University, Atlanta, Georgia and at Inter-Disciplinary.net’s 2nd Global Conference ‘Good Sex, Bad Sex: Sex Law, Crime and Ethics’ from the 3rd–5th of May 2010 in Prague, Czech Republic. I am grateful to the organisers and participants of those events, to Dr. Mary Donnelly and Dr. Darius Whelan of the Law Faculty, University College Cork and also to Professor Peter Bartlett, Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, Faculty of Social Sciences and School of Law, University of Nottingham for their very helpful insights and suggestions in respect of the arguments made here, although all views expressed and any errors are, of course, my own.
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Doyle, S. The Notion of Consent to Sexual Activity for Persons with Mental Disabilities. Liverpool Law Rev 31, 111–135 (2010). https://doi.org/10.1007/s10991-010-9076-7
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DOI: https://doi.org/10.1007/s10991-010-9076-7