'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex

Abstract

INTRODUCTIONAn article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: recognition that individuals with disabilities have a desire for sexual relationships with other people is a relatively new concept in the scientific community.1 We believe that this observation-wildly at odds with much of the literature referred to in this Article and in another paper the two authors2-exemplifies the discussion in our previous paper about the confusion and misinformation that permeates all of disability law and policy, especially mental disability law. The baseline, rather, for any scholarly inquiry into this subject, must be that [i]ndividuals [with disabilities] have the same needs for intimate relationships and sexual expression as everyone else.3With the growth in the field of mental disability law over the past forty years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily.4 However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law-even with those who are practicing in the field. The discomfort that people feel in examining this topic is further exacerbated when discussing individuals who are institutionalized. Why is this? And what does this have to do with sanism-an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry5 that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses?6 Consider this explanation as to how audience members responded to standard talks on this topic:If as I saw it, sanist myths, based on stereotypes, are the result of rigid categorization and overgeneralization, then they function psychologically to localize our anxiety, to prove to ourselves that what we fear does not lie within.7We thus labeled individuals with mental illness as deviant, morally weak, sexually uncontrollable [and] emotionally unstable.8 And often, we (especially professionals) regard them as not being human at all, and lacking human qualities including needs for affection and dignified ways of expressing affection. Our attitudes toward the sexuality of persons with mental disabilities reflect this labeling:Society tends to infantilize the sexual urges, desires, and needs of the mentally disabled. Alternatively, they are regarded as possessing an animalistic hypersexuality, which warrants the imposition of special protections and limitations on their sexual behavior to stop them from acting on these urges. By focusing on alleged differentness, we deny their basic humanity and their shared physical, emotional, and spiritual needs. By asserting that theirs is a primitive morality, we allow ourselves to censor their feelings and their actions. By denying their ability to show love and affection, we justify this disparate treatment.9All these tensions are heightened in cases involving institutionalized persons, in which consumer desires and provider discomforts must be acknowledged and recalibrated.10 They must also be considered carefully in the context of Suzanne Doyle's observation that sex is an indeterminate and artificial category defined by people who want to preserve their own political and social advantages.11It is also telling as to how uncomfortable this topic makes many people when we consider the responses of audience members to frank discussions about these issues (at a talk in Florida, one attendee leapt to his feet to exclaim, Professor Perlin, you are an agent of the devil!);12 negative responses could be broken down into these categories:1. …