Discussing and Assessing Capacity for Sexual Consent

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Sample Script: Introduction to the Sexual Consent Capacity Interview

Sexuality is an important aspect of the human experience. Sexual expression can help promote mental and physical health, and the needs associated with sexuality do not necessarily disappear just because one has mental impairments. At the same time, people with mental impairments, especially women, are at increased risk for sexual violence compared with the general population.^1,2 Any analysis of sexual consent capacity must balance the need for sexual expression with this possibility of sexual harm. Psychiatrists and other mental health professionals are experts at assessing individuals’ psychological faculties, and they thus have a key role to play in assessing capacity for sexual consent.

This article outlines the basic concepts behind sexual consent capacity and provides some guidance on how to pursue capacity assessments.

Basic concepts

The law is concerned with the capacity for sexual decision-making because of the central importance of consent in the legal regulation of sex. In a legal case for sexual assault, a prosecutor must typically prove that there was a lack of consent to the sexual act. This may be demonstrated through explicit dissent-a verbal no, for instance-but it may also be established by proving that a person lacked capacity to consent, regardless of whether he or she said yes or no. We all experience this lack of legal authority to engage in sexual decision-making during our youth.³

All states have adopted an age of consent rule that deprives minors of legal capacity, even if they might in fact have the psychological faculties for sexual decision-making. After becoming adults, we are presumed to possess the legal capacity to make decisions, which allows us to pursue our own unique conception of the good life. But this presumption of adult capacity is rebuttable. Adults may experience moments or long stretches of incapacity-whether because of intoxication, intellectual disability, or mental illness.

Simply having one of these conditions, however, is not sufficient to declare that one lacks capacity. Capacity determinations require a more particularized analysis that is both decision-specific and circumstance-specific.⁴ To say that it is decision-specific means that one must consider capacity as it relates to a particular decision, rather than to all decisions. For example, one may lack the capacity to manage one’s portfolio of stocks but still be able to make decisions about which pair of socks to wear in the morning.

The “capacity to consent to sex” is thus a somewhat misleading phrase, as sexuality may encompass a variety of different types of sexual acts, each of which may require its own capacity determination. Capacity must also be evaluated in the particular context in which the decision takes place because the capacity for a decision may fluctuate depending on the situation in which the decision is taken or on the individuals involved. For example, a person with Alzheimer disease may experience an episode of heightened impairment brought on by the time of day.⁵ Thus, capacity determinations are highly contextual.

Consent capacity: knowledge, rationality, voluntariness

The issue of sexual consent capacity arises in a variety of contexts. People with intellectual disabilities may wish to pursue sexual contacts when they become adults. Individuals with dementia may wish to preserve sexual relationships with long-term partners or others while undergoing cognitive decline. Or patients with a serious mental illness may wish to have sexual relations with others in a residential institution.

While there are several tools for the clinical assessment of sexual consent capacity, none have been generally accepted.⁶ Many of these instruments, however, rely on generally accepted principles for evaluation of consent capacity: knowledge, rationality, and voluntariness. These have been applied successfully to other domains, such as the capacity to consent to medical treatment.⁷

Mental health professionals must assess an individual’s sexual knowledge to guarantee that the person has adequate informational inputs into the decision-making process. How much must one know about a sexual act before being deemed capable of consenting to it? States vary significantly in the answer they provide to this question, and the differences typically revolve around the types of consequences of sex that are deemed to be legally relevant.

Individuals with mental impairments deserve capacity assessments that accurately reflect their psychological capabilities, respect their sexual rights, and protect them from sexual abuse.

At one end of the spectrum are states like New York, which takes a broad view of what one should be capable of understanding. In People v Easley, the New York Court of Appeals, the state’s highest court, ruled that one must be capable of understanding not only the physical consequences of sex, such as sexually transmitted diseases and pregnancy, but also the moral consequences of sex.⁸ That is, one must have an appreciation of how one’s sexual behaviors might be judged by others in order to have capacity to engage in them. One can still flaunt prevailing sexual norms, but one must understand that one is doing so.

A less demanding approach is presented by North Dakota’s Supreme Court in State v Mosbrucker, which expressly rejected the New York test. Instead, it concluded that one must understand the “nature of the sexual act as well as its consequences such as pregnancy and sexually transmitted diseases but not the moral nature of their participation in the act of intercourse.”⁹

Going even further, the Supreme Court of New Jersey in State v Olivio seems only to require that one understand the “nature” of the sexual act. It ruled that sexual knowledge need only encompass “the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders, or possible adverse moral or social effects.”¹⁰ The New Jersey standard for sexual consent capacity is easily met, and some courts have seemingly declined to follow the test, perhaps because it may lead to adverse consequences for vulnerable populations in many circumstances.

Whichever legal test might apply, it provides only the categories of legally relevant consequences. It is up to the assessor of capacity to determine which specific consequences are at issue. These will depend on the specific sexual act in question as well as the context of the sexual behavior. For instance, the decision to engage in kissing may require less knowledge because the mechanics and consequences of the act are not as complex. Similarly, if one’s intended sexual partner is of the same anatomical sex, the decision to engage in intercourse will not require knowledge of pregnancy consequences.

While possessing sexual knowledge of some sort is a necessary condition for sexual consent capacity, it is not sufficient. One must also be able to incorporate that knowledge into a rational process of decision-making. The analysis of rationality involves assessing whether an individual’s perceptual and cognitive processes are sufficiently reliable. For example, a person who experiences visual and auditory hallucinations may not be able to distinguish sexual partners’ identities or expressions of consent and thus lacks capacity because of a defect in perception. An individual who cannot form valid inferences or experiences failures in attention or memory may also lack capacity because of a defect in cognition. Stavis and Walker-Hirsch¹¹ provide a list of criteria, some of which might be helpful for assessing rationality, including:

• Awareness of person, time, place, and event

• Ability to differentiate truth from fantasy and lies

• Ability to differentiate one’s consent from another’s

• Possession of understandable responses to life experiences

• Ability to execute choice associated with a decision-making process.

Once one possesses sexual knowledge and adequate rationality, the voluntariness inquiry assesses whether an individual is capable of autonomous choice. At a basic level, this means that an individual must be capable of understanding that there is a choice to be made at all-that one can say yes or no to a sexual act. Beyond this, one must be willing to express volition, have the ability to control one’s choices, and not be overly susceptible to outside influence. This is the area in which a deficiency may be most likely to lead to exploitation or abuse. Therefore, it is imperative that the person who is assessing capacity consider the context of the sexual decision-making to see whether there are situations or sexual partners involved who might compromise the voluntariness capacity of the individual with mental impairments.

CASE VIGNETTE

Ms. Smith, aged 64 years, has a history of depression and traumatic brain injury and has been in a nursing home for over 20 years. The nursing facility staff are concerned that she lacks capacity to consent to sexual behavior, primarily because of her poor memory. The following conclusions are offered based on a clinical interview and psychological testing.

Ms. Smith demonstrates adequate attention but moderate impairment in immediate memory and severe impairment in delayed memory. Remote autobiographical memory appeared adequate. Staff reports of Ms. Smith’s memory for recent incidents with her potential partner suggest recent episodic memory impairment. Ms. Smith’s own report of her memory performance is consistent with this observation. Depression was ruled out as a likely contributor to memory impairment through consideration of her scores on measures of depression and attention. Her current medications are also unlikely to be a major source of her memory difficulties. Ms. Smith’s performance on tests of executive function was of limited value in light of the potential influence of her bradykinesia. However, functional assessment, as noted below, revealed satisfactory reasoning, planning, and problem-solving.

Functional assessment of decision-making capacity yielded evidence that she appreciated that she always had a choice of engaging in sexual behavior, that she could understand and weigh the potential risks and benefits of such behavior in light of her own values, and that she could arrive at a decision that was consistent with her reasoning and values.

Ms. Smith appears to have the knowledge and many of the functional skills necessary for making informed, well-reasoned decisions regarding sexual behavior. However, her poor delayed memory precludes her learning from past experiences. This is particularly problematic because her partner has allegedly been seen mistreating Ms. Smith, but Ms. Smith has no recall of those episodes. However, she does report that she fears her partner could become aggressive. Since Ms. Smith cannot recall past experiences with her partner, she lacks the information that would be used to avoid future aversive or physically dangerous interactions. Her clinician finds that Ms. Smith lacks capacity to consent to sexual behavior. There is no reason, however, that she and her potential partner could not visit with each other if visits occur where staff can monitor their behavior.

Reproduced with permission from Assessment of Older Adults With Diminished Capacity: A Handbook for Psychologists.
Copyright © 2008 American Bar Association and American Psychological Association.

Even if an individual with mental impairments falls short in one of these areas at the time of a capacity determination, this does not mean that the person will always lack sexual consent capacity. First, the condition that afflicts the person may be temporary. Second, any defect in knowledge, rationality, or voluntariness may be remedied in various ways to bring a person “up to” sexual consent capacity. If an individual lacks knowledge, sex education may be provided. If a person lacks rationality or voluntariness, treatment for the underlying condition that is causing the problem may help remedy the issue, although one should be alert to the possible negative adverse effects of certain medications on sexual performance.

Implementing sexual consent capacity assessment

Many mental health institutions assess the capacity for sexual consent by assuming that individuals with mental impairments lack capacity.¹² These types of restrictive policies do not comport with a patient-centered understanding of sexual well-being nor are they consistent with a valid method for capacity assessment. They are likely to be the product of several factors, including lack of staff resources, lack of staff training, fear of legal liability, and negative attitudes toward sex among people with mental impairments. This is not to say that quality sexual consent capacity assessment is impossible. In his excellent article on this topic, Lyden¹³ provides useful practical guidance for conducting quality assessments, drawing on his experiences with the Center of Disability Services in New York. First, he proposes using multiple methods for gathering information about the individual who is being assessed, including the following:

• A review of relevant records (including information about reproductive ability, and psychiatric and developmental disabilities)

• Discussions with selected people who know or work with the individual being assessed (eg, parents, staff members at a residential provider agency)

• A face-to-face interview with the person that includes a mental status evaluation and a set of questions that elicit information about the person’s relevant knowledge and voluntariness

This helps ensure that the capacity assessment is contextual in nature and draws on the expertise and experience of the various parties that have come into contact with the person whose capacity is in question.

Second, Lyden suggests individualizing the assessment, by conducting it in a way that is mindful of the person’s communication impairments and of the sensitive nature of the topics involved. It is worth noting that an inquiry into sexual consent capacity can often be seen as invasive or inappropriate, particularly among certain demographic groups. Interviews should be handled in a culturally competent manner, minimizing privacy invasions while also recognizing that some probing may be necessary to fully assess psychological functioning.

Finally, Lyden recommends that capacity assessments be conducted with interdisciplinary teams. This approach has multiple advantages. First, it brings multiple perspectives-clinical, legal, social, and administrative-to the table in discussions of sexual consent capacity. This ensures that the capacity assessment is being done in accord with the professional standards of all of the relevant disciplines. In addition, the consultation of an attorney knowledgeable about a given state’s statutory and case law on sexual consent capacity will ensure that the capacity assessment conforms to existing legal standards, avoiding liability. Second, the committee format helps to avoid biases present in individual committee members’ judgments, and it may also help to diffuse liability exposure.

Conclusion

Discussing and assessing the capacity for sexual consent is not easy. The topics involved are sensitive, controversial, and important. Mental health professionals have a critical role to play in these activities, and individuals with mental impairments deserve capacity assessments that accurately reflect their psychological capabilities, respect their sexual rights, and protect them from sexual abuse.

Further reading:Assessment of Decisional CapacityEthical Issues: The Patient’s Capacity to Make Medical Decisions

Disclosures:

Dr. Boni-Saenz is Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology in Chicago. He reports no conflicts of interest concerning the subject matter of this article.

References:

1. Khalifeh H, Moran P, Borschmann R, et al. Domestic and sexual violence against patients with severe mental illness. Psychol Med. 2015;45:875-886.

2. Goodman LA, Salyers MP, Mueser KT, et al. Recent victimization in women and men with severe mental illness: prevalence and correlates. J Trauma Stress. 2001;14:615-632.

3. Boni-Saenz AA. Sexuality and incapacity. Ohio State Law J. 2015;76:1201-1253.

4. Buchanan AE, Brock DW. Deciding for Others: The Ethics of Surrogate Decision-Making. Cambridge, UK: Cambridge University Press; 1989.

5. Volicer L, Harper DG, Manning BC, et al. Sundowning and circadian rhythms in Alzheimer disease. Am J Psychiatry. 2001;158:704-711.

6. Noffsinger SG. Sex and mental illness: legal considerations. In: Buckley PF, ed. Sexuality and Serious Mental Illness. Amsterdam, the Netherlands: Harwood Academic Publishers; 1999:35-51.

7. Grisso T, Appelbaum PS. Assessing Competence to Consent to Treatment. Oxford, UK: Oxford University Press; 1998.

8.People v Easley, 364 N.E.2d 1328 (NY; 1977).

9.State v Mosbrucker, 758 N.W.2d 663 (ND; 2008).

10.State v Olivio, 589 A.2d 597 (NJ; 1991).

11. Stavis P, Walker-Hirsch LW. Consent to sexual activity. In: Sullivan JL, Dinerstein RD, Herr SS, O’Sullivan JL, eds. A Guide to Consent. Washington, DC: American Association on Intellectual and Developmental Disabilities; 1999:57-67.

12. Wright ER, McCabe H, Kooreman HE. Institutional capacity to respond to the ethical challenges of patient sexual expression in the state psychiatric hospitals in the United States. J Ethics Mental Health. 2012;7(suppl 2):1-5.

13. Lyden M. Assessment of sexual consent capacity. Sexual Disabil. 2007;25:3-20.