Do people of diminished intellectual capacity have the ability to be give consent within the confines of a sexual relationship? Asks Sarah O’Brien.
In a 2002 landmark case, the U.S Supreme court ruled that executing intellectually challenged people was ‘unconstitutional’. It has been suggested that persons of a diminished intellectual capacity can be led to falsely confess. Indeed the culmination of the 1980’s brought with it the judgement, by the American Bar Association, that it was morally wrong for a civilised society to execute persons considered mentally inept, irrespective of their culpability.
If legal culpability cannot or will not be discerned, then how does one set about understanding the nature of sexual consent and intellectual disability?
The execution of the intellectually challenged person has been deemed an unsuitable reparation for crimes committed, not necessarily because of an inability to use their mental faculties to discern right from wrong, or because they failed to administer an appropriate response to a situation; no, instead it seems that the death penalty would be inappropriate- an embarrassment even, to a society that’s all but civilised.
The sexuality of people with a diminished intellectual capacity, is a subject that provides fodder for a difficult and uncomfortable discourse- a discourse between society and itself about a vulnerable demographic, whose community are often marginalized. On a primal level, illness of any kind is seen as weakness. Though the dysfunction of misfiring electrical impulses, coupled with a lack of knowledge about the complexity of mental illness, means that stigmatisation and fear are bred out of a disease that will eventually affect one in four people.
Still, there are varying degrees of mental disability and few would argue that a person suffering from something like depression, would lack the mental faculties needed to understand the nature of a sexual relationship and therefor give their informed consent. According to reachout.ie, giving consent includes both verbal and non-verbal cues. The website also stresses: ‘’having sexual activity with someone when they don’t know what’s going on is considered the same as rape under law.’’
Therefor the question still remains how should one distinguish a person’s level of intellectual incapacity in a manner that both respects the individual and protects them from potentially unwanted sexual attention?
Channel Four’s recent ‘Un-dateables’ TV show, serves to draw attention to this very issue. The programmes premise, revolves around helping people who would normally be considered –‘undateable’, to find love. Curiously the shows ‘love guru’s’ seem to pair intellectual disabilities, like with like. Television shows like this one, are introducing and inviting mainstream audiences to the table, to have a frank conversation about mentally and physically disabled peoples experiences of love, romance and yes, even sex.
Greater recognition of disability, both mental and physical, is paramount to dispelling the fear and stigma of illness. Changing people’s perception should in turn, fight against marginalisation and enlighten carers and families to the nature of abuse against people with an intellectual disability and to what level of consent, their loved one is really able to give.