Comprehending the Distinctively Sexual Nature of the Conduct

Sex, Drugs and Rock and Roll (2010)

Jami L. Anderson
University of Michigan - Flint
Since the 1970s, sexual assault laws have evolved to include prohibitions of sexual acts with cognitively impaired individuals. The argument justifying this prohibition is typically as follows: A sex act that is forced (without the legally valid consent of) someone is sexual assault. Cognitively impaired individuals, because they lack certain intellectual abilities, cannot give legally valid consent. Therefore, cognitively impaired individuals cannot consent to sex. Therefore, sex acts with cognitively impaired individuals is sexual assault. The prohibition of sex with such individuals is regarded by many as a significant advance. It certainly seems to be an improvement upon the days in which individuals could engage in sex with cognitively impaired adults with impunity regardless of the physical, emotional and psychological consequences such sex acts caused for those individuals. Yet, this legislation raises serious puzzles. For example, in the U.S., cognitively impaired individuals are routinely convicted for sexual assault with non-cognitively impaired minors. How should we think about the conviction of a cognitively impaired individual who has sex with an underage, non-cognitively impaired individual? Does this imply that cognitively impaired persons are capable of understanding the criminality of failing to obtain legal consent while being, nonetheless, incapable of giving such consent? Should the law address only those cases in which either both or neither of the individuals involved are cognitively impaired? If so, why? In this paper, I claim that shifting the analysis to one based on harms (away from legal standards of consent) better captures our intuitions about sex acts involving cognitively impaired individuals. (Indeed, a review of case law reveals a focus within these cases on the harms experienced by the impaired individuals involved.) I close the paper by identifying the difficulties that plague any legislation concerning individuals with mental impairments.
Keywords disability rights  cognitive impairment  sexual assault
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