CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 25, 2011

Perlin on Mental Disabilities and the Competence to Have Sex

Perlin Michael L. Perlin (New York Law School) has posted 'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex on SSRN. Here is the abstract:

Few questions of competency are as befuddling or as controversial as the question of a person’s competency to consent to sexual relations. Any consideration of this question necessarily implicates issues of law and clinical assessment, and analyses of this question are usually conflated with discussions of politics, social mores and “morality.” This inquiry is further complicated by the fact that there is no unitary definition of “competence” in the law in general.

To seek to formulate even a tentative answer to this question, it is necessary to examine overlapping areas of civil and criminal law, including: definitions of “statutory rape,” including: the use of dyadic “blanket” statutory categories of exclusion based on age; the use of indeterminate (both statutory and caselaw-derived) categories of exclusion based on mental status; the right of persons with mental disability to engage in consensual sexual relations in: outpatient facilities, halfway houses, group homes, civil hospitals, forensic facilities, and the resolution of liability issues arising from tort suits alleging incompetence to consent (most frequently arising in cases in which the plaintiff alleges that an inebriated state robbed him or her of the power to consent).

Case examples will illustrate critical issues involved in determining competency to consent to sexual relations in individuals involved in both criminal and civil matters including those diagnosed with intellectual disabilities. Specific emphasis will be placed on utilizing assessment strategies that correctly identify cognitive, neuropsychological and psychiatric disorders which could influence competency.

This presentation will consider these questions, will seek to identify the factors that must be considered in determining “sexual competence,” will learn why this is such an underdiscussed area of discourse in the legal and behavioral communities, and will assess whether it is good law, mental health and/or policy to attempt to craft a unitary standard in this area of social behavior.

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