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Sex Disabil (2007) 25:320
DOI 10.1007/s11195-006-9028-2
ORIGINAL PAPER
Martin Lyden
Published online: 20 February 2007 Springer Science+Business Media, LLC 2007
Abstract This article discusses assessment of sexual consent capacity, its ethical and legal mandates, and a rationale for the assessment of capacity to have a sexual relationship. It reports current assessment practices used by the authors as well as a summary of relevant literature. There is a review and discussion of New York laws, National and State court cases, and policies of National and international authorities relevant to sexual relations between persons who have intellectual disabilities. Technical information about a tool for assessing capacity to give consent for sexual relationships is described. A proposed clinical standard for use in assessing the capacity of a person with cognitive impairments to have a sexual relationship is presented.
Keywords Disabilities Sexual Consent Capacity
Overview
This article presents a summary of relevant literature as well as assessment practices that have been used at the Center for Disability Services. The Center for Disability Services is a not-for-prot community agency in the Albany, NY area.
Rights of persons with disabilities
There is a presumption in American law that an individual has the prerequisite capacity to engage in a sexual relationship once he/she reaches the age of consent [1, 2].
Grateful appreciation is expressed to the following persons who provided valuable information and advice during the development of the manuscript: Steve Marcal, Dan Godfrey, Sheila Shea, and Patrick ODonnell.
M. Lyden (&)
Supervising Psychologist, Residential Division, Center for Disability Services, 3 Cedar Street Extension, Cohoes, NY 12047, USAe-mail: [email protected]
Assessment of Sexual Consent Capacity
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An adult is entitled to all of his or her rights and privileges under the law, unless limitations are imposed by a court of law or by a professional judgment acceptable under the law [3]. However, there are consent capacity questions about an individual with cognitive impairments [4, 5]. Cognitive impairments can include intellectual disabilities and other conditions such as dementia, traumatic brain injury, and a developmental disability. New York Penal Law Section 130 [6] points out that persons who engage in a sexual relationship with each other must both be consenting.
Sexual consent capacity assessments for persons with cognitive impairments have...