Assessment of Sexual Consent 1 Running head: It reports current assessment practices used by the authors as well as a summary of relevant literature. There is a review and discussion of New York laws, National and State court cases, and policies of National and international authorities relevant to sexual relations between persons who have intellectual disabilities.
Technical information about a tool for assessing capacity to give consent for sexual relationships is described. A proposed clinical standard for use in assessing the capacity of a person with cognitive impairments to have a sexual relationship is presented. An adult is entitled to all of his or her rights and privileges under the law, unless limitations are imposed by a court of law or by a professional judgment acceptable under the law Stavis, Cognitive impairments can include intellectual disabilities and other conditions such as dementia, traumatic brain injury, and a developmental disability.
New York Penal Law Section points out that persons who engage in a sexual relationship with each other must both be consenting. Among the reasons for this are the recognition of the rights of people with disabilities, regulations requiring that residential provider agencies promote and protect the expression of those rights, and ethical standards that direct residential provider agencies Assessment of Sexual Consent 4 to assist consumers to maximize their potential.
Laws, Regulations, and Ethical codes State, National, and international authorities are cited in the following list: Connecticut , the United States Supreme Court affirmed that every person has the right to privacy, to certain forms of sexual conduct, and to make reproductive decisions. Circumscribing the Issues Capacity is a state and not a trait Lyden, It can vary over time. At one point in time, an individual with intellectual disabilities may be found incapable of having sexual relations due to knowledge deficits.
Subsequently, if that individual receives sufficient training, education, counseling, and exposure to various social situations it may be possible to remedy the knowledge deficits. In a case like this, a repeat sexual consent capacity assessment may yield a finding that the individual has achieved capacity.
An adult person has sexual consent capacity if the requisite rationality, knowledge, and voluntariness are present. These three components are described in detail later in this article. Assessment of Sexual Consent 6 It is important to identify the boundaries of the sexual behaviors for which consent capacity is to be assessed. There are no universally accepted criteria regarding capacity to consent to sexual behavior. The criteria for sexual consent capacity vary across jurisdictions.
In different states within the United States of America, the standards for sexual consent capacity have developed, refined, and codified through court decisions. According to this standard, a person must be mentally capable of understanding the social mores of sexual behavior. A person must be capable of understanding the non-criminal penalties e. An example of such conduct is sexually exploitive behavior. Assessment of Sexual Consent 7 The case People v. Easley clarified that under New York law sexual consent capacity requires understanding and knowledge of the nature and possible consequences of the sexual act and of its moral quality.
Easley was convicted of rape. He had sexual intercourse with a woman past the age of statutory consent i.
An appreciation of how it will be regarded in the framework of the societal environment and taboos to which a person will be exposed may be far more important. In that sense, the moral quality of the act is not to be ignored. Cratsley was convicted of raping Sherry K. The court considered the woman incapable of understanding, at the time of the incident, the nature of her own or Mr. It was determined that she did not possess sufficient resources -- intellectual, emotional, social, and psychological — to decide whether to engage in sexual intercourse with another person.
In Cratsley, the People showed that Sherry K. It is important to note that the New York Court of Appeals in People v Cratsley asserted Assessment of Sexual Consent 8 that the law does not presume that a person with intellectual disabilities is unable to consent to sexual intercourse New York State Penal Law section In New York, it is an element of every sex offense that the sexual act was committed without the consent of the victim New York State Penal Law section The law does not recognize any claim that someone who lacked sexual consent capacity consented to sexual activity.
Contrast Between New York and New Jersey While New York has one of the most restrictive and conservative legal standards for sexual consent capacity, its neighboring state of New Jersey has one of the least restrictive legal standards. In , the court in New Jersey upheld the conviction of four Glen Ridge high school male athletes for inducing a female classmate with intellectual disabilities to perform sexual acts. The main reason that the conviction was upheld was that the female did not understand that she could have refused and therefore she did not participate voluntarily New Jersey v.
Olivio, emphasized that an understanding of the risks and consequences of the sexual conduct is not required. Variation Among States Apart from age of sexual consent and voluntariness requirements, Sundram and Stavis noted that the sexual consent capacity standards in Alabama, Colorado, Assessment of Sexual Consent 9 Hawaii, Idaho, New York, and New Mexico demand understanding of the nature of the sexual conduct at issue, of the potential consequences of the sexual conduct, and of its moral quality.
In Arizona, Illinois, Indiana, Iowa, Kansas, and Louisiana the standards only require understanding of the nature of the sexual conduct at issue and of the potential consequences of the sexual conduct. As already mentioned, in New Jersey the sexual consent capacity standard requires that an individual understand the nature of the sexual conduct at issue. Clearly, an individual can be deemed to have sexual consent capacity in one state and not in another.
Ireland In Ireland, the statutory age for sexual consent is 17 years of age. There is recognition of the sexual rights of persons with disabilities in Ireland. If there is a need for a formal decision as to the sexual consent capacity of an individual in Ireland, the court makes it.
A legal and diagnostic criterion in the United Kingdom deems persons with severe intellectual disabilities as incapable of giving informed consent. Severe intellectual disabilities are referred to as severe learning disabilities in the United Kingdom; and it pertains to people with an IQ below The incapacity applies broadly, and not only to sexual consent capacity.
The age of sexual consent in the United Kingdom is 16 years of age. The British Medical Association and Law Society maintain that sexual consent capacity requires that an individual: Another way of stating the cognitive requirements for sexual consent capacity in the United Kingdom are that an individual must have: The Internet address http: Saudi Arabia and Malaysia require that people be married to engage in sex.
Even in the United States the age of consent ranges from 14 to Gay and lesbian sexual behavior is still outlawed in many countries.
As indicated in the Internet website http: Some countries have different laws for sex between two men and sex between two women. In some countries the age of consent is different for males and females, with the age for males typically being older. It should also be noted that age of consent and the age at which marriage is considered acceptable change not only by region and culture, but with the times. In some states in the United States, the statutory age of consent for gay or lesbian sexual relations differ from the statutory age of consent for heterosexual sexual relations.
Cases of Severe or Profound Intellectual Disabilities Some professionals may deem persons who have severe or profound intellectual disabilities, along with inability to verbally participate in a capacity assessment, to be Assessment of Sexual Consent 12 incapable of sexual consent.
Ames and Samowitz have suggested the following criteria for inferring sexual consent capacity. A person must have the ability to voluntarily decide, without coercion, with whom he or she wants to have sexual relations. Both participants in the sexual behavior must be reasonably protected from physical harm e.
A person should not be taken advantage of or used by another e. Psychological or physical abuse must not be present in the relationship. Assessment of Sexual Consent 13 5. Socially appropriate time and place: Either the person must be able to choose a socially acceptable time and place, or the person must be responsive to directives toward that end. Kaeser reported that this issue has sometimes emerged when staff learned that two individuals, who were both functioning in the lower range of intellectual disabilities e.
The committee collaborated with the parents, guardians, or correspondents of such individuals in reaching a decision to allow or disallow a sexual relationship in cases such as this. Determinations have been made that two individuals with severe to profound intellectual disabilities have sexual consent capacity in the context of their specific relationship.
The sexual consent capacity determination was not global, but was limited to their specific relationship. Assessment of Sexual Consent 14 Capacity Assessment is Essential Some residential provider agencies lack the professional resources to properly address the sexual consent capacity issues of the persons with intellectual disabilities who they serve.
Direct care staff and administrators of residential provider agencies may lack education and training in this area. Consequently improper decisions may be made to ignore or restrict all intimate relationships between persons with intellectual disabilities. It is challenging to strike an appropriate balance between providing protective oversight while allowing persons with intellectual disabilities to enjoy the rights and freedoms that are valued by society.
It is reasonable to presume the persons whose sexual consent capacity is in question have an implied right to access services to assess their capacity and support them in achieving capacity if identified deficiencies can be ameliorated. Some benefits available through sexual consent capacity evaluations are: A sexual consent capacity assessment distinguishes those unmarried persons who are legally permitted to have sexual relations from those who are not legally permitted.
If Assessment of Sexual Consent 15 one, or both, partners in a marriage are under the statutory age of sexual consent, sexual relations between them is legal. A person with sexual consent capacity has the right to have sexual relations with another consenting adult who has sexual consent capacity.
Questionable Capacity of Those With Cognitive Impairments Many persons with cognitive impairments have sexual consent capacity. Even a person with a legal guardian can have sexual consent capacity. An individual who has a plenary legal guardian could be assessed by a licensed health care professional and found to have sexual consent capacity. Consider the situation in which a ward wants to have a sexual relationship while the guardian opposes it.
If the ward and the guardian continue in disagreement, this conflict may need to be resolved via a judicial proceeding Doyle, Assessment of Sexual Consent 16 There has been increasing recognition that persons with cognitive impairments have the same constitutional rights as those without disabilities. A Method for Determining Sexual Consent Capacity The commonly used method for determining sexual consent capacity involves an assessment by a qualified health care professional psychiatrists, psychologists, social workers, and physicians are generally recognized.
At the Center for Disability Services, the assessment process involves three general methods of obtaining information, which are fairly standard in the field of intellectual and developmental disabilities. Assessment of Sexual Consent 17 Individualizing the Assessment It is important that the assessor adapts and individualizes the capacity assessment process with specific individuals.
Examples of such assessment modifications follow. Prior to the assessment, a staff member, with whom the person has a comfortable relationship, should explain the purpose and process of the assessment. The assessor should be someone the individual is likely to feel comfortable with e. Memory tasks presented during the mental status exam to persons with traumatic brain injury should involve recognition rather than recall.