Harmonizing the right to sexual expression and the right to protection from harm for persons with mental disability

Abstract

Issues of sexuality have increasingly become matters of public debate, laws, civil rights, and a reason for enhanced protection of individuals from harm and abuse caused by inappropriate sexuality activities. Beginning with the relatively recent landmark decisions of the Supreme Court in the late 1960s, sexuality became a matter of constitutional law. These decisions declared that an individual had a civil right in regard to family matters, especially procreation, birth control, and abortion. At approximately the same time, the United States Supreme Court declared special constitutional rights to protection from harm for individuals with mental disabilities who are being cared for under the powers of the state governments. Additionally, the Supreme Court and many other courts in the United States addressed problems of a person's competency and capacity to consent to various important activities, among which was the issue of consent to sexual activity. Since the issue of consent to sexual activity often differentiates appropriate and perhaps even legally protected sex from inappropriate and perhaps criminal sexual activity, the issue of consent is paramount to understanding how the law categorizes sexual activities and deals with such behaviors. This article distills and integrates the seemingly disparate legal principles by suggesting a method to apply them consistently to persons with mental disabilities. The law has been providing clearer guidelines to such activities, but they are still very general. The law and judges heavily rely upon the standards which have been developed by the relevant professions and practices in this field, which points out the need for professionals to study such standards carefully and to adopt policies which are consistent with them.