Now for sex with the mentally disabled

[Ideologue]

In relation to our ongoing stat rape discussion, I was considering the similar situation of cognitively normal individuals having sex with the mentally handicapped, and trying to look up to see if it was illegal under any U.S. law.  It is under SC law, see S.C. Code SECTION 16-3-654(1)(b), and so appears to be under the laws of the United Kingdom.  I ran into this article:

http://www.spiked-online.com/newsite/article/should_the_mentally_disabled_have_sex/13953

Having judges rule on certain people's sex lives has ugly echoes of the past.

27 August 2013

Get spiked by email

n 1927, in the case of Buck v Bell, the US Supreme Court upheld a 1924 state law in Virginia permitting the compulsory sterilisation of mentally retarded persons on eugenic grounds. Carrie Buck was said to be one of three generations of 'feeble-minded' and 'promiscuous' women. In the course of a landmark judgment, Justice Oliver Wendell Holmes wrote:

'We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind... Three generations of imbeciles are enough.'

If a judge made such observations today, there would be uproar. But at the time, the American authorities espoused a theory of 'negative eugenics', which rested on the assumption that the state should take positive measures to prevent society being burdened by those seen as degenerate. That theory fell out of favour in the 1940s, though Buck v Bell was never formally overruled.

By contrast, the British state was more receptive to positive eugenics, which urged the great and the good to reproduce more people themselves. This theory relied on moral suasion, and an expectation that processes of natural selection would eliminate those deemed weak and unfit.

It's ironic, therefore, to see a recent decision from the UK Court of Protection (which takes decisions for adults lacking mental capacity under the Mental Capacity Act 2005) authorising the sterilisation of a disabled man. The case, called DE, was decided on 16 August 2013.

DE is a man of 36, with a learning disability. His IQ was said to be 40, implying a mental age of between six and and nine. He is said to need 'extensive support' and has very limited speech. An earlier generation of psychiatrists would have categorised DE as an 'imbecile'. Such a low IQ certainly suggests quite a significant level of mental impairment. DE lived with his devoted parents, who over the years had enabled DE to develop a modest degree of autonomy, such as walking to the gym with a friend, or travelling to a day centre on a bus by himself. Such developments took years to achieve.

DE formed a relationship with another learning-disabled woman, named PQ, whom he had known for 10 years. The local authority and the couple's respective parents 'supported' the relationship.

The result of this well-meaning but short-sighted approach proved little short of disastrous. The couple started a sexual relationship, and PQ became pregnant. All hell then broke loose. PQ was accused of exploiting DE, and her baby was taken into care. DE was not allowed to see PQ unsupervised. As he did not even understand how a child had come into being in the first place, he had very little appreciation of why his routines were so disrupted. PQ, meanwhile, was told that having sex with DE was a crime, so she broke off their relationship, much to DE's distress. Later, they became reconciled.

As a result of the reconciliation, DE's parents requested that he be sterilised, to avoid any repetition of this crisis, which they found traumatic. DE said he did not want any more children. After a great deal of expert evidence, and some 'education' of DE by a learning-disability nurse and a clinical psychologist, the Court of Protection reached a somewhat contradictory conclusion. Firstly, DE had acquired capacity to consent to sexual relations, but secondly, he lacked capacity to use contraception. The court ruled that his best interests required sterilisation. It even reasoned that this would benefit DE's parents, whose ensuing peace of mind would in turn benefit DE.

The ruling quotes slabs from other courts' judgments, and argued that DE had 'competing rights' under Article 8 of the European Convention on Human Rights. This provision guarantees effective respect for a person's private and family life. But to say that a person has competing rights is surely oxymoronic. One's rights may compete with others' rights, not one's own.

A competent adult is free to decide which aspect of his private life means more to him: the certainty of knowing that he will not get a woman pregnant in future, which is another way of saying a choice never to become a parent; or opting for a less draconian, and possibly less reliable, method of birth control. An adult lacking capacity cannot make that choice.

While one can understand the court reaching the conclusion it did, on pragmatic grounds, this ruling has an air of smoke and mirrors about it. Should PQ and DE have been in a position to start a sexual relationship at all? And how can the issue of capacity to have heterosexual sex sensibly be viewed in isolation from the capacity to use birth control? Many people would see such a distinction as artificial.

Paradoxically, leaving the couple to their own devices resulted in far more state intrusion into their lives, and prolonged distress to them both, than if they had been chaperoned in the first place.

One standpoint is that those with learning disabilities should not be prevented from having sex, because it is pleasurable and a core element of being human. But this rose-tinted view is, arguably, unduly complacent. It would not be used to justify sex between, or with, young children. DE, with a mental age of between six and nine, sounded rather too impaired.

A curious feature of the case is that DE miraculously acquired the legal capacity to have sex during the proceedings. Again, this convenient development does not seem altogether convincing. DE's cognitive deficits are enduring and lifelong. The idea that 14 hours of 'direct work', whatever that entailed, could remedy these deficits sounds optimistic. It is interesting that DE, according to the judgment, attended these sessions reluctantly.

As with so many cases in this jurisdiction, one can't help feeling that the issues have been finessed so as to allay the professional anxieties of those involved, but without confronting more fundamental problems of the kind alluded to above. While the Court would no doubt claim to be handling difficult ethical and legal issues sensitively, the outcome is the same as if DE were alive in Virginia in the 1920s. This should give us pause.

The ruling has been hailed as a victory for autonomy and choice. In reality, however, what has happened is that others have imposed their own views of what is right for DE on to him. It is time to have a more open and democratic debate about whether and when our society deems it acceptable for the mentally disabled to have sex and start families, instead of leaving such decisions to be made behind closed doors by unelected judges.

Barbara Hewson is a barrister in London.

Observations:

I find it faintly odious that Hewson seems to believe that DE should have been physically barred from fucking, but that sterilizing him violates his rights; beyond that, I find her comparison of the relationship between two mentally challenged but adult individuals to pedophilia to be enormously stupid, inflammatory, and belying a Martinusesque capacity to reason by analogy.  All in all, I wonder if anyone's ever been arrested for having sex with Hewson; after all, either she's a virgin, or a crime has been committed.

In any event, unless I were to decide to live in a fantasy land where cognitive impairment extends to the gonads, since mentally disabled folks often do tend to want to have sex, it's tremendously cruel to criminalize it or as, Hewson suggests, use physical force to keep them chaste.  Since there are potentially extreme negative consequences, sterilization actually seems to be the best out of the bad options to prevent the unwanted and unconsidered results of such unions.  (Although, as here, if you can get a statement from the prospective sterilizee saying he doesn't want kids, ever, I don't even see what the moral quandary is.)

I also scoff at the idea that having sex with a mentally disabled person is by definition abuse.  Consent in a sexual context does not require significant cognitive capability.  Really stupid humans still have their Lawrence rights.  If you're awake, in most circumstances I can imagine, consent can be formulated and clearly communicated (or denied, as the case may be).  It's especially messed up here given that a cognitively normal person banging PQ probably also could have gotten into criminal trouble, while she came under the scrutiny of the law for her tryst with the one guy she knew with less intellectual capacity than her; indeed, what's a girl to do?

The article is unclear, however, on whether the NHS provided the service for free or charged the parents.  I suppose that would change my opinion on whether the court did right or not.

In any event: in general I don't see why sterilization is a bad thing period given that offspring of couples like this are likely to impose upon the state, and in cases where disorders are hereditary the state's interest in alleviating human suffering is patent.  The Nazis and neo-Confederates really ruined eugenics for everybody.

[DGuller]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex if you get all As" policy.  It also incentivizes the teachers to give out more As.

[Ideologue]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex [with a 54 year old man] if you get all As" policy.  It also incentivizes the teachers to give out more As.

I dunno if this is a high incentive for the majority.

[CountDeMoney]

If states like Texas are allowed to execute mentally retarded for committing crimes they can't reasonably or objectively comprehend, it's only fair to be able to fuck them, right?

[DGuller]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex [with a 54 year old man] if you get all As" policy.  It also incentivizes the teachers to give out more As.

I dunno if this is a high incentive for the majority.

We should also tighten up the laws on teen-on-teen sex.  Why is it that you suddenly are indeed capable of giving consent if the person you're consenting to is incapable of giving it?  Does being with a younger guy suddenly give you the otherwise-lacking power to understand the consequences of putting out?

[Razgovory]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex if you get all As" policy.  It also incentivizes the teachers to give out more As.

Q:  What happens when a mentally disabled adult has sex with a underage person?



A:  [spoiler] Meri burns down a group home. [/spoiler]

[jimmy olsen]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex [with a 54 year old man] if you get all As" policy.  It also incentivizes the teachers to give out more As.

I dunno if this is a high incentive for the majority.

49 at the time of the crime.

[11B4V]

[garbon]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex [with a 54 year old man] if you get all As" policy.  It also incentivizes the teachers to give out more As.

I dunno if this is a high incentive for the majority.

Yeah even I wouldn't have been motivated by that.

[Ideologue]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex [with a 54 year old man] if you get all As" policy.  It also incentivizes the teachers to give out more As.

I dunno if this is a high incentive for the majority.

Yeah even I wouldn't have been motivated by that.

What about a 49 year old?

[Ideologue]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex if you get all As" policy.  It also incentivizes the teachers to give out more As.

Q:  What happens when a mentally disabled adult has sex with a underage person?



A:  [spoiler] Meri burns down a group home. [/spoiler]

[garbon]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex [with a 54 year old man] if you get all As" policy.  It also incentivizes the teachers to give out more As.

I dunno if this is a high incentive for the majority.

Yeah even I wouldn't have been motivated by that.

What about a 49 year old?

No.

[Josquius]

I read an article about the British case a few weeks ago. All seems reasonable to me : the guy likes sex but doesn't have the capacity to think about the unfortunate side effects that can come about if you do it wrong, he freaked out when a kid resulted last time. It makes sense that the people looking out for his welfare, who we have no reason to Believe aren't looking out for his best interests, can decide on sterilization.

[Ed Anger]

If it's a crime to have sex with mentally retarded adults, then why is it not legal to have sex with very intelligent teenagers?  Imagine how much we can close the education gap with other countries if we had a "You can have sex if you get all As" policy.  It also incentivizes the teachers to give out more As.

Q:  What happens when a mentally disabled adult has sex with a underage person?



A:  [spoiler] Meri burns down a group home. [/spoiler]

I laughed. You did good there Raz.   

[mongers]

I didn't read the full OP, but with regard to the British case, from the reporting I've seen, I think all parties, the judge, social workers, barristers involved appeared to have had the best interests of the two people involve at heart and produced a thoughtful and workable outcome.