What Constitutes Capacity to Consent to Sexual Relationships

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Precisely what constitutes capacity to consent to sexual activity is unclear in many jurisdictions, even though the definition of capacity is crucial in establishing a balance between a proper empowerment to exercise sexual rights and effective protection from abuse. Clearly, the higher the requirement for knowledge and understanding, the better protection from abuse but the more that people with a 'mental disorder' may be prevented from exercising their sexual rights.

In most European countries, there is no requirement that someone engaging in sexual activity should exercise 'informed consent' of the kind required for medical treatment (i.e. to be informed and to choose voluntarily). As a result, there seems to be no need, in law, for a person to demonstrate that he or she understands the nature of sexual activity, its benefits and risks and possible alternatives. If there were such requirements, people would presumably need to understand and differentiate between sexual intercourse, masturbation and procreation. They would also need to understand the risks of pregnancy and sexually transmitted diseases, particularly HIV. In addition, they would need an understanding of alternative forms of contraception and of how to gain the benefits of sexual behaviour by other means (for example, if they are going to engage in sexual intercourse for a material object, such as cigarettes, they need to know how else these might be obtained). Realistically, to make a voluntary choice, many people would also need assertiveness training, so that they did not simply submit to sexual activity because of compliance.

Guidance on mental capacity in England, drawn up by the British Medical Association and The Law Society (British Medical Society and the Law Society, 1995) has considered the issue of how to define capacity to consent to sexual relationships. They asserted that the common law test was that the person concerned:

• 'must be capable of understanding what is proposed and its implications; and

• must be able to exercise choice. (It is important to consider whether one party is in a position of power which will influence the ability of the other party to consent.)'

This implied that, at a minimum, people would need to understand what sexual intercourse was, and that pregnancy and/or sexually transmitted diseases were risks (as well as being able to make a free choice). This definition of capacity was not always accepted in the courts, however (see, for example, Murphy, 2000) and sometimes it was argued that setting the 'sexual knowledge' criterion this high would disadvantage people with more severe disabilities from exercising their sexual rights. Other jurisdictions, have proposed similar but less stringent tests, such as that of the Supreme Court of Victoria, in the case of Morgan ((1970) VR 337) (where consideration of the consequences of sexual acts appears to have been excluded):

It must be proved that she has not sufficient knowledge or understanding to comprehend:

(a) that what is proposed is the physical act of penetration of her body by the male organ; or if that is not proved,

(b) that the act of penetration proposed is one of sexual connection as distinct from an act of a totally different character.

The English Home Office (2000, paragraphs 4.5.8 and 4.5.13), when reviewing the sexual offences legislation, considered that understanding the consequences of sexual acts was important. It proposed that a person should be regarded as lacking capacity if they were unable to communicate a decision or if they had a mental disability and were unable to make a decision because:

He or she is unable to understand:

i) the nature and reasonably foreseeable consequences of the act and ii) the implications of the act and its reasonably foreseeable consequences.

In the USA different States have different criteria for capacity to consent to sexual relationships and, in general, courts have tended to rely heavily on professional judgements (Stavis, 1991). According to Sundram and Stavis (1994) and Stavis and Walker-Hirsch (1999), some States require people to understand:

• the nature of sexual conduct;

• the consequences of their actions, and

• the moral aspects of their decisions.

Other States require only the first criterion (for example, New Jersey) or the first two criteria to be fulfilled. Stavis and Walker-Hirsch (1999) go on to suggest that it is incorrect to consider capacity to consent to sexual activity an all-or-nothing ability. Instead, they argued, some activities required very little understanding or regulation (apart from mutual consent), whereas others (e.g. sexual intercourse) did require assessment of capacity according to State laws. They then provide a very long list of requirements for full capacity which would be rather restrictive if enforced.

Research has shown that people with intellectual disabilities often have more limited sexual knowledge than other people (McCabe, 1999; McCabe and Cummins, 1999; O'Callaghan and Murphy, 2002) and are more vulnerable to abuse than others (Wilson et al., 1996; Khemka and Hickson, 2000; O'Callaghan and Murphy, 2002). Attempts to operationalise the English definitions of capacity have suggested that about half of the people involved in one research project would have been unable to consent to sexual relationships because they did not understand about pregnancy and/or sexually transmitted diseases (O'Callaghan and Murphy, 2002). The same project found that people who had had sex education were more knowledgeable and less vulnerable than those who had not. They concluded that it was essential for people to be offered life-long sex education (as opposed to the 'one shot' variety).

Not surprisingly, staff in community care services for people with intellectual disabilities are often unsure about whether (and how) to determine if people with intellectual disabilities have the capacity to consent to sexual relationships (O'Callaghan and Murphy, 2002). They frequently respond by not intervening when they see sexual behaviour between residents and not reporting sexually abusive behaviour (Sundram and Stavis, 1994). Some staff tend to consider themselves 'enlightened' in 'allowing' sexual intercourse between people with intellectual disabilities, without really considering the potential of one person to abuse the other; other staff remain quite restrictive in their views. Often staff make judgements about whether to 'allow' relationships by considering whether the two people in question actively seek each other out, spend time together, share leisure activities and restrict activities with other partners. These characteristics may be good guides as to whether relationships are consenting but they tend to be tinged with value judgements about how such intimate relationships should be conducted (i.e. that people should only have sex together if they also like spending other time together; that people should not have sex with lots of different partners, and so on).

One study examined the views of over 300 psychologists (from a variety of fields) on the subject of capacity to consent to sexual relationships by asking participants to grade 56 statements from five (most important) to one (least important) for judging capacity (Kennedy and Niederbuhl, 2001). The results suggested that the following eight abilities were judged absolutely necessary (mean rating of 4.5 or more) to demonstrate capacity.

• Individual can say or demonstrate 'no'.

• Individual knows that having intercourse can result in pregnancy.

• When given options the individual can make an informed choice.

• Individual knows that having intercourse or other sexual relations can result in obtaining a disease.

• Individual can differentiate between appropriate and inappropriate times and places to engage in intimate relations.

• Individual can differentiate between males and females.

• Individual can recognise individuals or situations which might be a threat to him or her.

• Individual will stop behaviour if another person tells him or her 'no.'

Interestingly, these go considerably beyond the minimal criteria proposed by the English Home Office. They also fall short of the more restrictive criteria of some States in the USA (e.g. the 'moral dimension' item was not rated as absolutely necessary for capacity).

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