Sexual Rights, Sexual Abuse, and the Question of Consent

by Dora Raymaker

categories: Policy, safety, social justice

Published April 29, 2009 @ 10:00AM PT

The Boston Globe reports on the controversy over a bill prohibiting sexual photographs of the disabled and elderly. The thought was to provide greater protection from sexual abuse for people who are unable to consent; however, both the wording of the bill, and the question of where to draw the line on "mental competence" introduce civil rights-threatening ambiguities.

Part of the bill states that people over age 60 and people with disabilities who have been declared mentally incompetent cannot give consent to erotic photographs, any more than a minor can give consent. But other parts of the bill only use the term "elders and persons with a disability," without referencing mental competence or consent.

This idea that disabled or elderly adults are unable to consent to sexual activities or have no more understanding of sex than children goes right back into the large children problem, and all of its associated stigma.

The bill seemed particularly goading to people with disabilities, who often have been stereotyped as asexual or childlike.

"This kind of bill does perpetuate that stigma . . . that once you reach a certain age, or if you have a disability you are no longer sexually attractive, no longer able to have an intimate relationship," said Stanley Ducharme, a Boston psychologist who specializes in sexuality and disabilities. "The whole thing smacks of the idea that there's something negative about sexual expression and seeing an erotic image of an elderly person or a disabled person."

Just as important to question, what exactly is "mental competence?" Who gets to decide? And who gets to decide whether someone is consenting to a sexual act or not? Whether someone is under guardianship or not isn't a reliable measure. There are plenty of adults who have legal guardians, but who are perfectly capable of consenting to sexual acts with other consenting adults.

While obviously protections are needed, banning a particular type of sexual activity for an entire segment of the population is just as obviously the wrong way to go.

How can this problem be dealt with in a way that does not assume disabled or elderly adults are large children? How can we attack the reasons for why these problems happen, rather than attacking the people they happen to? Who can speak for whom?