By Joseph Fischel, PhD, associate professor of Women’s, Gender, and Sexuality Studies, Yale University

It is undeniable that disability-specific statutes (in sex law) and codes (in university sexual misconduct policy) risk quashing intimate and sexual possibilities to which people with intellectual or physical disabilities are entitled. It seems also undeniable that physical disabilities present different kinds of ethical questions in relation to sex than intellectual disabilities.

For several reasons, it is unwise for university sexual misconduct codes to isolate disability as a special category (nor do I think disability should be statutorily isolated in sexual assault law). The United States has a particularly insidious history of controlling—by law—the erotic and reproductive lives of women considered disabled. This history is inseparable from white supremacy, and the rendering of poor women, women of color, and criminals as disabled in order to control their reproductive lives. This history, compounded with the cultural desexualization (and occasional hypersexualization) of persons with disabilities, builds a winning case for not isolating disability in code.

Rather, general policies should be applicable to different populations in specific ways. For example, an “affirmative consent” standard is a general policy. If someone is nonverbal, “affirmative consent” cannot be conveyed through speech. But it could be conveyed via writing, a message board, body language, etc.

As another example, codes proscribe sex with people who are substantially impaired, unconscious, and so forth (this is my language, not the language of any particular code verbatim). Blackout drunkenness and serious inebriation seem to be the underlying concerns motivating these clauses, but presumably the thresholds could carry over—theoretically and with extreme caution—to cases of severe cognitive disability.

I say “theoretically” for two reasons. First, because it is all but unfathomable that someone so intellectually impaired that she cannot meaningfully consent to sex is enrolled as a college student. Second, because to the degree that there are people in the world who are indeed so severely intellectually disabled that they cannot meaningfully consent to sex, it strikes me that such people need a great degree of support and care in all zones of life, sexual or otherwise, and that here we might want to think about sexual pleasure more like other daily activities: bathing, eating, grooming, sleeping. Insofar as some cognitively disabled persons need significant help in these regards, they may also need help in experiencing sexual pleasure (if there is some way to read assent and/or interest off their speech or conduct). In other words, it is not immediately evident to me that simply because someone’s intellectual disability is labeled “severe” or “significant” means she should automatically be disqualified from sex. Of course, this is the thorniest question around sex and disability.

Recommended reading

Magazine illustration: woman in a wheelchairForbidden Fruit: Anne Finger (New Internationalist, 1992) This is a really accessible, powerful article on the cultural denial of sexuality for people with disabilities, and on the difficulties that people with disabilities themselves have around expressing their concerns and anxieties regarding sex.

Disabling consent, or reconstructing sexual autonomy: Joseph Fischel, Hilary O’Connell (Columbia Journal of Gender and Law, 2015) This article re-examines “sexual autonomy” for people with disability through the lens of a 2012 Connecticut Supreme Court decision overturning a conviction of sexual assault against a woman with mentally and physically disabilities. The writers argue against equating sexual autonomy with sexual consent.

Sexuality, rape, and mental retardation: Deborah Denno (University of Illinois Law Review, 1997) This groundbreaking article explores the question of when sexual relations with a person who has intellectual disabilities should be considered nonconsensual and criminal. Denno finds that courts typically hold intellectually disabled individuals to a higher standard of consent than nondisabled people—an unnecessarily broad and moralistic restriction. She argues that most mentally retarded individuals have the capacity to consent to sex, and they have the right to do so.

Sexuality and incapacity: Alexander Boni-Saenz (Ohio State Law Journal, 2016) Sexual incapacity doctrines control access to sex by designating who is legally capable of sexual consent. Boni-Saenz argues that the right to sexual expression should not be withheld due to cognitive impairment alone, and argues that sexuality and incapacity need not be mutually exclusive.

Book coverSexual advance directives: Alexander Boni-Saenz (Alabama Law Review, 2016) Boni-Saenz explores the potential for people facing chronic intellectual decline, who may still experience sexual desire, to consent to sex in advance. He argues that sexual advance directives can protect their right to sexual expression while guarding against sexual abuse.

Loneliness and its opposite: Sex, disability, and the ethics of engagement: Don Kulick and Jens Rydstrom (Duke University Press, 2015) This book is an ethnography on facilitating sex in the lives of people with disabilities in two countries (Sweden and Denmark). The book “charts complex boundaries between private and public, love and sex, work and intimacy, and affection and abuse. It shows how providing disabled adults with access to sexual lives is not just crucial for a life with dignity. It is an issue of fundamental social justice with far reaching consequences for everyone” (publisher).

[Some summaries are based in part on the article abstracts.]