Capacity to Consent: Policies and Practices that Limit Sexual Consent for People with Intellectual/Developmental Disabilities

Abstract

Consent determination is a common practice that has been championed as a logical approach (Lyden in Sex Disabil 25(1):3–20, 2007) to the sexual activity of individuals with intellectual and/or developmental disabilities. These practices are paternalistic and ineffectual, and need to be replaced with viable alternatives, such as sex-education provision. In this piece, I deconstruct the logic of this practice utilizing the case of Ashley X, contemporary research findings, an analysis provided by Perlin and Lynch (Sexuality, disability, and the law: beyond the last frontier?, Palgrave Macmillan, London, 2016) and Deborah Stone’s policy analysis framework (Stone in Policy paradox: the art of political decision making, 3rd edn, Norton, New York, 2012). I argue that prevention of sexual activity is not synonymous with protection from sexual harm—and, in fact, may paradoxically cause harm to this population. I dispute the notion that people without intellectual disabilities are more equipped to make sex-related decisions for this population. Additionally, the notion of consent in this population is treated as flexible, and primarily bends to facilitate the needs of people without disabilities. I conclude with several recommendations, including a request for protective civil rights legislation to defend the sexual and relationship rights of people with intellectual and developmental disabilities.