Abstract
Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental disability law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental disability law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental disability law—on case law, statutes, administrative regulations and lawyers’ roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. The question we address in this paper is this: although there has been a general “revolution” in mental disability law, there are those whom it has not affected. To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question.
Highlights
Patients’ RightsAn article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: “The recognition that individuals with disabilities have a desire for sexual relationships with
Mental Disability Law and Policy Associates, 185 West Broadway, New York, NY 10013, USA; Disability Rights New York, 25 Chapel Street, Suite 1005, Brooklyn, NY 11201, USA
It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons.[8]. This revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status
Summary
An article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: “The recognition that individuals with disabilities have a desire for sexual relationships with. The reality is, that we too often fail to take any of this into account and instead superimpose a societal presumption of incompetency,[36] a “damaging message” when applied to any aspects of a person with a mental disability.[37] This, more than anything else, leads to the confusion, dissonance, and tension in this area of law, society, and personhood This type of presumption is directly at odds with a therapeutic jurisprudence-based analysis of this issue. Where incompetency is presumed and individuals who are institutionalized are treated either as asexual or hypersexual based only on their diagnosis of mental illness, we are far from establishing an ethos of care that takes into account the importance of sexuality for everyone, and keeps the sensitive nature of the topic in mind while crafting policies and procedures that empower and educate, rather than demonize or demoralize this population.[38] The questions that must be addressed here are these: are persons with mental disabilities given this sort of autonomy in their sexual decisionmaking? Are Professor Ronner’s “3 V’s” complied with? Generally, where incompetency is presumed and individuals who are institutionalized are treated either as asexual or hypersexual based only on their diagnosis of mental illness, we are far from establishing an ethos of care that takes into account the importance of sexuality for everyone, and keeps the sensitive nature of the topic in mind while crafting policies and procedures that empower and educate, rather than demonize or demoralize this population.[38]
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