This article deals with the issue of restrictions that are placed on people with a learning disability in legally giving consent to sex. The discussion explores whether legal capacity in relation to sex is being determined on an equal basis for people with a disability, and those without, in England, Ireland and Wales.

The key issues raised are:

• People with a learning disability are not able to make decisions about sex in the same way as those without.
• Current legislation denies people with a learning disability the right to be decision makers.
• The incompatibility of much of the relevant national laws with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) article 12 (2006).

The article proposes an alternative model of assessment which could achieve article 12 compliance whilst meeting the need to prevent sexual abuse.

Methods

The work does not present any primary research, but there is an ongoing literature review, which extends to relevant case law and legislation from countries worldwide.

The article traces back societal attitudes towards consent to sex issues for people with a disability to the Eugenics movement in the late nineteenth and early twentieth centuries. This uncomfortable reading recalls the attitude that society needed to be protected from the possibility of people with a disability having sex. It points out that over 50,000 women with a learning disability were sterilised in the USA on this basis. It also recalls how adults with a learning disability were often perceived as asexual or child-like and needed to be protected from sex and sexual thought.

The article’s content goes on to suggest that these fears continue to have a legacy both in societies attitudes, and in the legislation, which leads to the contravention of the UNCRPD. The format proceeds through a number of specific, yet linked, issues surrounding this particular area examining, for example, the history of societal barriers to sex for people with a learning disability and the human rights implications before addressing specifically issues with current law.

Results

The article relies heavily on the UNCRPD as the principle cornerstone of the challenge to current practice and attitudes. In particular Article 12, paragraph 2, which states

States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

If we take the example of the Mental Capacity Act legislation, this principle is not upheld. The MCA requires that the first stage of any capacity assessment is to determine that the person has a ‘disorder of the mind’. This inherently directs the assessor that only people with these types of disabilities can be subjected to the test. In fact, if the person does have a disorder of the mind, it is entirely possible that a sexual act may be criminalised. This, it is argued, places the person with a disability in a different legal position to a person without.

The article points out that sex is a natural part of human existence and, evidence suggests, based more in instinctual and emotional responses than it is rational and well reasoned processes. We know that sexual relationships are central to how humans develop and maintain partnerships and that people with a learning disability want, and expect, to be able to participate in these relationships in the same way as anyone else.

The author acknowledges that there is, of course, a need to ensure that this is balanced with the need to ensure that vulnerable people are not unnecessarily exposed to exploitation.

The article proposes a new ‘agreement method’ of determining consent which it suggests meets both the requirement upon the state to protect people with a learning disability from sexual abuse, yet meets the demands of Article 12 of the UNCD.

The agreement method builds on a previously proposed negotiation method, which described a requirement for verbal agreement. In simple terms the agreement model requires that both parties understand the sexual act (which in its most basic terms this may just be the physiological aspects of it) and can communicate agreement to this. This model allows for alternative methods of communication, other than verbal, in which a person may agree to the sex. This approach would be applied universally to those with or without a learning disability.

Strengths and weaknesses

The article raises some a number of thought provoking, challenging questions for both legislators, professionals and service providers alike. These questions probe not only at the attitudes of society but also the fabric of the current law and its impact for people with a learning disability.

A disappointing element of the work is the proposed agreement model and the negotiation model upon which it builds. Both of these feel under developed in the context of the work as a whole and would certainly warrant further explanation and exploration. This lack of detail prevents a serious consideration of their viability on practical terms.

Summary

It goes without saying that all professionals, and all people, need to work within the confines of the existing law and this may limit the scope for real change without a change to the law. There are, however, some important current questions for service providers and professionals which are illuminated by this article:

• Are our beliefs sufficiently distanced from historical values which dictate that the people we support need to be protected from sex, and society needs to be protected from their reproduction?
• Are we happy that the MCA (whatever limitations may be alluded to here) is being applied in a way to ensure that approaches are the least invasive possible and facilitate people with disabilities as sexual decision makers?
• Are we giving real consideration to the practical issues that need to be addressed in circumstances where staff have an element of control over of the time and physical environment that people live in? Is there time and space for spontaneous physical contact?
• Do we understand and address the impact of the criminalisation of sexual acts with people with a disability on the mindset of staff members who are concerned about being complicit?
• Are steps such as sexual health and abuse awareness training being proactively introduced before they appear to be necessary for individuals? It seems highly unreasonable that at the point of wishing to engage in a first sexual encounter a person may have to wait for a community nurse referral before they may proceed! Could this be the ultimate passion killer?

Fundamentally, I suspect that we are just not discussing these issues in teams in the thoughtful and proactive way that we need to at a service level. We really need to move to a point where sex is on every team meeting agenda.

Links

Primary paper

Arstein-Kerslake A. (2016). Understanding sex: the right to legal capacity to consent to sex. Disability & Society Vol. 30, Iss. 10, 2015 [Abstract]

Photo credits

• elPadawan CC BY 2.0
• Tucker Sherman CC BY 2.0
• rjp CC BY 2.0
• David Goehring CC BY 2.0