In this Article, we consider these attitudes while seeking to answer the following questions: • In this area of law and policy, is there any unitary definition of competence? • Are there certain factors that must be considered in determining “sexual competence”? • How does domestic law and policy relate to issues of sexual competence, and does it impact how we should approach these issues? • What are the international human rights law and therapeutic jurisprudence implications of the answers to these questions? In Part I, we will discuss competence to engage in sexual activity in matters involving persons with mental disabilities, looking also at the question of what we mean when we refer to “sex.” We then consider in Part II the significance of sanism, the potential implications of international human rights law, and the meaning of therapeutic jurisprudence to this inquiry. Then, in Part III, we will discuss issues of competency in the context of marriage and, briefly, in the context of sterilization. In Part IV, we will look at competency in the context of criminal law, focusing mostly on the ways that “statutory rape” is defined in cases with putatively consensual sex involving persons with mental disabilities. We will examine in Part V the maturation of the Americans with Disabilities Act as a litigation tool. We will then conclude with a few thoughts and recommendations.
Michael L. Perlin & Alison J. Lynch,
"All His Sexless Patients": Persons with Mental Disabilities and the Competence to Have Sex,
89 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol89/iss2/13