National Association for Rights Protection and Advocacy

THE RIGHT OF INSTITUTIONALIZED PERSONS WITH MENTAL DISABILITIES TO VOLUNTARY SEXUAL INTERACTION: BEYOND THE LAST FRONTIER?

Prof. Michael L. Perlin
New York Law School
57 Worth St.
New York, NY 10013

This presentation expands on my earlier thoughts on this matter. See Michael L. Perlin, Hospitalized Patients and the Right to Sexual Interaction: Beyond the Last Frontier? 20 NYU Rev. L. & Soc'l Change 302 (1993-94); Michael L. Perlin, "Make Promises by the Hour": Sex, Drugs, the ADA, and Psychiatric Hospitalization, 46 DePaul L. Rev. 947 (1997), and Douglas Mossman, Michael Perlin & Deborah Dorfman, Sex on the Wards: Conundra for Clinicians, 25 J. Am. Acad. Psychiatry & L. 441 (1997)

I. Introduction

The question of the right of institutionalized mentally disabled persons to engage in consensual sexual activity is one of the most threatening to be raised to clinicians, line workers, administrators, advocates, attorneys, or family members (in the words of a recent story in the Chicago Tribune, "a public policy question as controversial as they get").. The taboo and stigma attached to sexual behavior is inevitably heightened when it is coupled with and conflated wit stereotypes of the meaning of mental disability.

The question challenges the traditional "liberal" position on questions of institutionalization and civil rights enforcement; it reflects the massive use of ego defenses (such as denial) in the way we think about hospitalization questions; it serves ultimately as a Rorschach test for the degree to which we engage in what I've been calling "sanist" behavior (i.e., behavior that is based upon stereotypes, myths, superstitions and deindividualization in ways that reflect communities' dominant morality). It is, finally, astonishingly underdiscussed (and the fact of this under discussion has a special significance here) in light of the fundamentality of sexuality as an expressive human experience. The question remains "beyond the last frontier" for law professors in much the same way as it does for most of the general public.

No useful answer to the question can be even tentatively formulated unless we clarify our perspective: are we looking for a legal answer, a clinical answer, a social answer, an administrative answer, or a behavioral answer (or, as we must, a combination of all of these)?

First, we must consider legal categories. To what statutorily or judicially-defined civil rights are involuntarily committed mental patients generally entitled, and, in the articulation of such rights, have the courts or the legislatures specifically considered sexual autonomy or interaction rights? Will the Americans with Disabilities Act (ADA) force public institutions to change how they treat patients in this context? Is it necessary to initially inquire into an individual patient's competency to enter into "sexual decisionmaking" (and, if it is, how is this to be determined)? Do competent institutionalized patients have the same autonomy rights as all other persons, allowing them to engage in the same level of sexual self-determination as any of he rest of us? Putting aside inquiries into mental capacities, are all "patients" to be treated in the same way? Is there a difference between voluntary patients and involuntarily committed patients?

Does involuntary commitment involve an implicit restriction on one's freedom to engage in sexual activity? Are there additional restrictions that are necessary in the cases of patients who have been committed following their involvement in the criminal justice system? Among this group, is there a difference between patients awaiting trial, those permanently incompetent following a Jackson v. Indiana determination, or those found not guilty by reason of insanity? Between patients who have been found to be incompetent (for any reason) and those who have not?

Next, we need to turn our attention to clinical questions. Has the patient in question ever expressed or articulated any wish to either engage in sexual activity or to abstain from it? Is it clinically beneficial or antitherapeutic to allow institutionalized patients some (any) (much) autonomy in sexual decisionmaking? To what extent must we factor in research on the therapeutic value of touching and physical intimacy? Does it matter if the patient is expected to be hospitalized briefly or for a longer period of time? What is the impact of sexual activity on different modalities of treatment? On the overall ward milieu? What responsibilities come with the assertion of rights? Is the potential relationship between sexual repression and neurotic behavior (articulated most vividly by Wilhelm Reich) worth considering?

We must next consider the multiple textures of sexual relationships, and the definitional reality that a psychiatric hospital is a closed institution. Under the best of circumstances, entering into a new sexual relationship can be stressful and confusing. Are these stresses inappropriately exacerbated when the universe in question is that of institutionalized mental patients? If persons with serious mental disability have more difficulty "processing" stress, need this clinical reality be factored into any policy ultimately adopted? Can preoccupation with sex add a systemic distortion to all matters involving ward behavior? Will excessive concern with sex blunt important consideration of other issues such as the quality of a full range of interpersonal relationships, self-esteem, and an ability to deal with intimacy issues? How does this focus affect questions of individual vs. group needs?

This leads to the consideration of this question from the perspective of hospital officials. Why are hospital administrators resistant to expanded sexual activity on the part of patients? Is it more than simple inconvenience, or even the fear of unwanted pregnancies? How much of a factor is fear of a potential hospital-wide AIDS epidemic, and how realistic is this fear? How will the well-documented fear on the part of many mental health professionals of being sued -- what Stanley Brodsky and his colleagues have called "litigaphobia" -- affect the adoption of or compliance with any policy that appears to liberalize sexual interaction policies (for fear that litigation might quickly follow unwanted births or the spread of STDs)? One commentator has suggested that the threat of litigation has led hospital administrators to "attempt to minimize the complexity of patient sexuality by focusing on the symbolic, simplistic reassurance of written procedures." Is this conclusion an idiosyncratic one (based upon the circumstances at the hospital about which he was writing), or is this a global truth?

How does the whole question of sexual autonomy in a public institution "fit" with the resolution of other social/cultural/political issues such as AIDS reporting or condom distribution? What happens when individual line staff at a hospital (the individuals on whom the implementation of any social policy inevitably falls) simply refuse to cooperate with such a policy because their own sense of religious "morality" forbids it (i.e., that their religion teaches them that unmarried persons -- of any mental capacity -- should not have sex, and that married persons -- of any mental capacity -- should not have extramarital sex)? Can (or should) there be separate rules in the cases of private facilities that are church-affiliated, or private non-sectarian facilities that retain units specially designated for practitioners of specific religions?

Finally, we need to speculate on whether any of these answers depend upon what we mean by "sex"? Do we need to consider each possible permutation of sexual behavior? Does it make a difference, in short, if we are discussing monogamous heterosexual sex, polygamous heterosexual sex, monogamous homosexual sex, polygamous homosexual sex, bisexual sex? Does "sex" mean intercourse? What about oral sex? Anal sex? Masturbation? Voyeurism? Exhibitionism? Should "pornography" be made available? If so, what sorts? Mens' magazines that one can buy in a convenience store (such as Penthouse or Hustler) or "hard core magazines" generally thought of as "42d Street fare"? What about sexually-explicit literature that might appear to involve (or condone or encourage) violence? Should sexually-explicit videos or movies be available for patients to see? If so, should they view them communally or individually? What if a patient's pre-hospitalization behavior involved significant "sexual acting out" in what had been seen as "inappropriate ways"? Can patients' decision to engage in what is sometimes perceived as "deviant" sexual behavior subsequently be used as evidence of either their danger to self or others or of "grave disability"?

Despite the passage of the ADA and two decades of litigation on behalf of institutionalized mentally disabled persons (substantially geared to inquire simply into whether mental patients are being treated "like human beings"), society tends to either infantilize such persons (denying the reality that they may retain the same sort of sexual urges, desires and needs the rest of us have and generally act on) or, paradoxically, to demonize them (expressing fear of their hypersexuality and the correlative need of protections and limitations to best stop them from acting on these primitive urges).

Both these seemingly-paradoxical and contrary feelings stem from what I call "sanist" attitudes. These attitudes dominate social and legal discourse about mentally disabled persons. They infect interpersonal relationships, social cultural and political actions, judicial decisions, legislative enactments, scholarly writings, administrative rulings and litigation strategies. The operate largely on an unconscious (and often invisible) level, and, are frequently found in the writings and public pronouncements of otherwise "liberal" or "progressive" individuals.

Courts and legislatures then often respond to these sanist devices by condoning or encouraging pretextuality in both civil and criminal cases involving mentally disabled litigants. Often, the misuse (and teleological application) of social science is the vehicle through which pretextual decisions serve to reify sanist attitudes. Justice Holmes chilling epigram in Buck v. Bell -- "three generations of imbeciles is enough" -- is a perfect exemplar of these attitudes, and is particularly telling in light of my presentation topic today .

II. Development of Patients' Rights

The history of the development of substantive constitutional rights of institutionalized mental patients begins with Wyatt v. Stickney. In Wyatt, Federal District Court Judge Frank Johnson fleshed out the contours of a constitutional right to treatment by articulating a broad range of civil rights to which all patients were entitled. These "Wyatt standards" became the inspiration and "role model" for other litigation and for legislation -- generally labeled as "Patients' Bills of Rights" -- that was enacted in virtually all the states as well as by Congress. Many of these statutes contain provisions that are also reflected in the robust case law: that an individual is institutionalized does not mean that the patient is necessarily or presumptively incompetent for all or any purposes.

There has been, however, a stunning lack of attention paid to one of the most basic and fundamental of all civil and human rights: the right to sexual interaction. Most of the Wyatt standards were simply adopted whole cloth by state legislatures in their subsequent "Patients' Bills of Rights" enactments; however, only four of the states adopted that portion of the standards that guaranteed patients the right to reasonable interaction with members of the opposite sex. There has also been no follow-up litigation based upon any of the statutes that do provide for this right, and only a scattering of cases has been litigated anywhere that have sought to vindicate this right. In addition, this right is conspicuous by its absence from either piece of complementary federal civil rights legislation.

 

The general lack of attention, litigation and commentary may appear anomalous. Self-evidently, institutionalized persons do not lose their sexuality or sexual desires when they lose their liberty. On the other hand, there is, I expect, some added irony to be found in the fact that litigation over antipsychotic medication refusal -- the most contentious aspect of institutional patients' rights law -- centers on drug side-effects, and loss of sexual desire is clearly one of those noted side effects. Here we acknowledge that sexual desire is a sufficiently important personal trait so that its diminution is a factor that must be weighed into the formulation of an antipsychotic drug refusal policy; yet, we simultaneously deny the power and importance of sexual desire on hospital ward life.

Most states, nonetheless, do not recognize their patients' right to personal or interpersonal relationships. Often, the right to sexual interaction depends on the whim of line-level staff or on whether such interaction is seen as an aspect of an individual patient's treatment plan. It has even been suggested that "sexual activities between psychiatric inpatients should be strictly prohibited, and when it occurs patients should be isolated ... and tranquilized if necessary." One hospital's guidelines stated, "If you develop a relationship with another patient, staff will get together with you to help decide whether this relationship is beneficial or detrimental to you." Hospital staff is often hostile to the idea that patients are sexually active in any way.

While more enlightened institutional mental health professionals and behaviorists now recognize that patients "are and wish to be sexually active," and that sexual freedom often has therapeutic value, and while others call attention to our societal obligation to provide family planning assistance to women institutionalized in psychiatric hospitals, these authors accurately recognize the lack of literature and policy statements generally available to guide hospital practices and the reluctance with which many hospitals are willing to promulgate such policies. This gap is complemented by a similar gap in the case law and in the legal literature.

Of the few litigated cases, probably the most interesting one is the California cases of Foy v. Greenblott. There, an institutionalized patient and her infant child (conceived and born while the mother was a patient in a locked psychiatric ward) sued the mother's treating doctor for his failure to either maintain proper supervision over her so as to prevent her from having sex, or to provide her with contraceptive devices and/or sexual counseling.

The court rejected plaintiffs' claims of improper supervision, finding that institutionalized patients had a right to engage in voluntary sexual relations as an aspect of either the "least restrictive environment" or "reasonably non-restrictive confinement conditions" and that that right included suitable opportunities for the patient's interactions with members of the opposite sex. On the other hand, it did characterize defendants' failure to provide plaintiff with contraceptive devices and counseling as a deprivation of her right to reproductive choice. It also rejected a claim for "wrongful birth" by the infant child, concluding "Our society has repudiated the proposition that mental patients will necessarily beget unhealthy, inferior or otherwise undesirable children if permitted to reproduce."

The handful of recent cases that has been litigated on questions of sexual rights of the institutionalized convey a dominant set of messages: judges -- some of whom continue to endorse Justice Holmes' dictum in Buck -- are excruciatingly uncomfortable deciding these cases; lawyers are often quick to abandon any allegiance to advocacy roles in litigating such cases, and, frequently, these cases serve as a battlefield in which parents are pitted against their children over the question of the extent to which institutionalized mentally disabled persons can enforce this right. This is, in sum, an area in which virtually all participants in the judicial system join with a significant number of hospital staff employees in wishing the underlying problem would simply go away.

III. Attitudes Toward Sex

Sanist myths, based on stereotypes, are the result of rigid categorization and overgeneralization; they are created to "localize our anxiety, to prove to ourselves that what we fear does not lie within." In an earlier paper, I have set out what I saw as the primal myth:

Mentally ill individuals are "different," and, perhaps, less than human, They are erratic, deviant, morally weak, sexually uncontrollable, emotionally unstable, lazy, superstitious, ignorant, and demonstrate a primitive morality. They lack the capacity to show love or affection. They smell different from "normal" individuals, and are somehow worth less.

Our attitudes toward the sexuality of mentally disabled persons reflect and reify this myth. By focusing on alleged "differentness," we deny their basic humanity and their shared physical, emotional and spiritual needs. By asserting a "primitive morality," we allow ourselves to censor their feelings and their actions. By denying their ability to show love and affection, we justify this disparate and unequal treatment.

A recent short piece in popular journalist Herb Caen's column is illustrative. The item reads as follows:

No comment dept. (notice in the Dance Palace Community Center bulletin in Pt. Reyes): "In cooperation with the Pt. Reyes Clinic and with funding from the West Marin Thrift Store, the Dance Palace will be placing a condom machine in the handicapped bathroom."

The idea that physically handicapped individuals might have needs for condoms is apparently too bizarre for Caen to contemplate; one wonders how he would react to the notion of mentally disabled persons being sexually active.

These sanist myths lead to pretextual decisionmaking. As Professor Susan Stefan has perceptively noted, courts routinely find mentally disabled women incompetent to engage in sexual intercourse (i.e., to have sufficient competence to engage willingly, knowingly and voluntarily in such behavior), but just as routinely find such individuals competent to consent to give their children up for adoption. In one startling case, a court made both these findings simultaneously about the same woman.

Other pretextual decisionmaking is regularly present in cases involving criminal prosecutions of men charged with having sex with mentally disabled women. Again, Professor Stefan's analysis of these cases suggests that courts regularly employ a series of pretexts (as to the woman's capacity to consent) in cases where, otherwise, a conviction might not be sustainable under standard rape law standards. In other contexts, mentally disabled parents can lose custody of their children because of behavior -- such as having a "bad attitude" or being sexually promiscuous -- that would rarely (if ever) be invoked in cases of so-called "normal" parents. Expert testimony in parental rights termination cases that disabled persons "cannot show love and affection as well as can persons of normal intelligence" is relied upon to support termination findings.

These pretextual decisions are, at base, teleological: again, in Professor Stefan's words, courts judge competence "quite blatantly in terms of the desirability of the outcome." Here, as in many other areas of mental disability law, the pretexts of trial testimony and judicial decisionmaking -- premised on sanist myths -- pervades all judicial decisionmaking in this area.

IV. Rights in Collision

Say we assume that there is a baseline right to "meaningful sexual interaction" (no matter what content we give to that phrase). First, consider the standard tort law dilemma that confronts contemporaneous mental hospital administrators: how to reconcile the "open door"/"least restrictive alternative" policy with the correlative duty to protect? Broken love affairs or bad sexual experiences don't improve the mental health of non-mentally disabled individuals: do we (may we) (can we) (must we) risk scarring the presumably more fragile psyches of institutionalized patients (and is this assumption of mine simply reconstituted paternalism, infantilization or sanism?)?

Next, consider the right to be left alone. If we expand the right of patients to be sexually active, the universe of individuals with whom they can be active is fairly limited. Is there some sort of clash here (but note that this passes over the important and interesting and unasked question about conjugal visitation)? Should (must) birth control devices be supplied to psychiatric patients who are given unescorted hospital leave?

What about AIDS? Do we segregate HIV-positive patients? Does this conflict with other policies? Can we risk increasing the number of HIV-positive individuals in any aspect of society, much less in institutions?

What about birth control issues? Will the right to sexual autonomy lead to increased efforts to sterilize institutionalized individuals? How will groups opposed to sex education and the distribution of condoms in city schools react if condoms are distributed in psychiatric hospitals?

What about gender differences? In at least one New York City hospital, male patients leaving the facility on unsupervised community leave are given condoms upon request; female patients, on the other hand, have their competency (informally) assessed before birth control pills can be prescribed. Certainly this raises arguable equal protection claims.

What about abortion rights? Does an institutionalized person have a right to an abortion? How about a right to resist an abortion? There is at least one reported example of a damage suit being filed in response to an authorized abortion being performed on an institutionalized mentally disabled individual. Further anecdotal evidence suggests that it is not rare for state hospital doctors at certain facilities to attempt to coerce patients into terminating pregnancies; if there is subsequent litigation on this question, how will courts respond?

Many drugs -- including many antipsychotic medications -- are contraindicated in cases of pregnancy; do right to refuse antipsychotic medication rules and regulations have to be reconceptualized if more patients become sexually active and a higher pregnancy rate results?

Next, at what point do inquiries about "competency" take center stage? On one hand, almost all courts adhere to the catechism that competency is not a unitary status, and that an individual may be competent for one status but not for another. On the other hand, current research in progress shows that, in real life, clinicians tend to reject this line of thinking. Other research suggests, just as troublingly, that clinicians are far more likely to find incompetency when a patient disagrees with the professional's conclusions as to what treatment would be in the patient's best interests.

How will all of this play out in the context of the questions that we are addressing her? Is there one "sexual competency"? And what if one person in the relationship is "sexually competent" and the other is not? It is black-letter law that, in criminal prosecutions, a "mentally defective" person is deemed incapable of consenting to sexual intercourse. Need there be a statutory override here? One court has recently reversed a sexual assault charge that had been premised on the "victim's" mental incapacitation by nature of her institutionalization, finding that she retained the ability to consensually engage in sexual intercourse; yet, courts generally uphold statutes proscribing sexual intercourse with mentally ill individuals as not violative of either the equal protection or due process clauses.

Should this version of "statutory rape" be consigned to the historical scrap heap? What are the down sides for community cases? Is there a difference between prosecutors' attitudes towards sexual crimes in hospitals and towards those done in the community? Will awareness of the underlying issues bring about changes in state administrative policies on the investigation of criminal sexual assaults in psychiatric hospitals? Will constitutional tort and state tort claims increase, and how will courts construe such cases?

Is the competency to consent to sexual intercourse the same as the competency to choose a certain method of birth control (or to choose to not use birth control)? Or to have (or not have) an abortion? Is there a different competency for sexual intercourse and for sexual interaction that stops short of coitus?

And how do any of these competencies relate to more commonly-confronted competency questions such as medication refusal or voluntary admission?

Finally, how does the ADA affect all of this? To what extent does the ADA's bar on discrimination against disabled persons cause the reconceptualization of hospital policies prohibiting sexual interaction? If it appears that the ADA might be a tool to attack such policies, might that cause some former ADA supporters to rethink their position on the act?

In coming to our ultimate conclusions, we not only have to decide which right "trumps" which other right, but we must also decide how we set priorities in defining the underlying question. Do we look first at autonomy rights? At civil libertarian concerns? At due process requirements? At privacy interests? At competency criteria? At clinical needs? At legal status? At tort liability worries? At voluntariness constructs? At the immutable fact that "sexual interaction" -- by its very description -- assume the participation of more than one individual? No resolution of the underlying issues can even be aspired to unless we sort out these approaches and carefully articulate their interrelationships, their potential conflicts and their relative values as competing social choices.

I. Introduction

The question of the right of institutionalized mentally disabled persons to engage in consensual sexual activity is one of the most threatening to be raised to clinicians, line workers, administrators, advocates, attorneys, or family members (in the words of a recent story in the Chicago Tribune, "a public policy question as controversial as they get").. The taboo and stigma attached to sexual behavior is inevitably heightened when it is coupled with and conflated wit stereotypes of the meaning of mental disability.

The question challenges the traditional "liberal" position on questions of institutionalization and civil rights enforcement; it reflects the massive use of ego defenses (such as denial) in the way we think about hospitalization questions; it serves ultimately as a Rorschach test for the degree to which we engage in what I've been calling "sanist" behavior (i.e., behavior that is based upon stereotypes, myths, superstitions and deindividualization in ways that reflect communities' dominant morality). It is, finally, astonishingly underdiscussed (and the fact of this under discussion has a special significance here) in light of the fundamentality of sexuality as an expressive human experience. The question remains "beyond the last frontier" for law professors in much the same way as it does for most of the general public.

No useful answer to the question can be even tentatively formulated unless we clarify our perspective: are we looking for a legal answer, a clinical answer, a social answer, an administrative answer, or a behavioral answer (or, as we must, a combination of all of these)?

First, we must consider legal categories. To what statutorily or judicially-defined civil rights are involuntarily committed mental patients generally entitled, and, in the articulation of such rights, have the courts or the legislatures specifically considered sexual autonomy or interaction rights? Will the Americans with Disabilities Act (ADA) force public institutions to change how they treat patients in this context? Is it necessary to initially inquire into an individual patient's competency to enter into "sexual decisionmaking" (and, if it is, how is this to be determined)? Do competent institutionalized patients have the same autonomy rights as all other persons, allowing them to engage in the same level of sexual self-determination as any of he rest of us? Putting aside inquiries into mental capacities, are all "patients" to be treated in the same way? Is there a difference between voluntary patients and involuntarily committed patients?

Does involuntary commitment involve an implicit restriction on one's freedom to engage in sexual activity? Are there additional restrictions that are necessary in the cases of patients who have been committed following their involvement in the criminal justice system? Among this group, is there a difference between patients awaiting trial, those permanently incompetent following a Jackson v. Indiana determination, or those found not guilty by reason of insanity? Between patients who have been found to be incompetent (for any reason) and those who have not?

Next, we need to turn our attention to clinical questions. Has the patient in question ever expressed or articulated any wish to either engage in sexual activity or to abstain from it? Is it clinically beneficial or antitherapeutic to allow institutionalized patients some (any) (much) autonomy in sexual decisionmaking? To what extent must we factor in research on the therapeutic value of touching and physical intimacy? Does it matter if the patient is expected to be hospitalized briefly or for a longer period of time? What is the impact of sexual activity on different modalities of treatment? On the overall ward milieu? What responsibilities come with the assertion of rights? Is the potential relationship between sexual repression and neurotic behavior (articulated most vividly by Wilhelm Reich) worth considering?

We must next consider the multiple textures of sexual relationships, and the definitional reality that a psychiatric hospital is a closed institution. Under the best of circumstances, entering into a new sexual relationship can be stressful and confusing. Are these stresses inappropriately exacerbated when the universe in question is that of institutionalized mental patients? If persons with serious mental disability have more difficulty "processing" stress, need this clinical reality be factored into any policy ultimately adopted? Can preoccupation with sex add a systemic distortion to all matters involving ward behavior? Will excessive concern with sex blunt important consideration of other issues such as the quality of a full range of interpersonal relationships, self-esteem, and an ability to deal with intimacy issues? How does this focus affect questions of individual vs. group needs?

This leads to the consideration of this question from the perspective of hospital officials. Why are hospital administrators resistant to expanded sexual activity on the part of patients? Is it more than simple inconvenience, or even the fear of unwanted pregnancies? How much of a factor is fear of a potential hospital-wide AIDS epidemic, and how realistic is this fear? How will the well-documented fear on the part of many mental health professionals of being sued -- what Stanley Brodsky and his colleagues have called "litigaphobia" -- affect the adoption of or compliance with any policy that appears to liberalize sexual interaction policies (for fear that litigation might quickly follow unwanted births or the spread of STDs)? One commentator has suggested that the threat of litigation has led hospital administrators to "attempt to minimize the complexity of patient sexuality by focusing on the symbolic, simplistic reassurance of written procedures." Is this conclusion an idiosyncratic one (based upon the circumstances at the hospital about which he was writing), or is this a global truth?

How does the whole question of sexual autonomy in a public institution "fit" with the resolution of other social/cultural/political issues such as AIDS reporting or condom distribution? What happens when individual line staff at a hospital (the individuals on whom the implementation of any social policy inevitably falls) simply refuse to cooperate with such a policy because their own sense of religious "morality" forbids it (i.e., that their religion teaches them that unmarried persons -- of any mental capacity -- should not have sex, and that married persons -- of any mental capacity -- should not have extramarital sex)? Can (or should) there be separate rules in the cases of private facilities that are church-affiliated, or private non-sectarian facilities that retain units specially designated for practitioners of specific religions?

Finally, we need to speculate on whether any of these answers depend upon what we mean by "sex"? Do we need to consider each possible permutation of sexual behavior? Does it make a difference, in short, if we are discussing monogamous heterosexual sex, polygamous heterosexual sex, monogamous homosexual sex, polygamous homosexual sex, bisexual sex? Does "sex" mean intercourse? What about oral sex? Anal sex? Masturbation? Voyeurism? Exhibitionism? Should "pornography" be made available? If so, what sorts? Mens' magazines that one can buy in a convenience store (such as Penthouse or Hustler) or "hard core magazines" generally thought of as "42d Street fare"? What about sexually-explicit literature that might appear to involve (or condone or encourage) violence? Should sexually-explicit videos or movies be available for patients to see? If so, should they view them communally or individually? What if a patient's pre-hospitalization behavior involved significant "sexual acting out" in what had been seen as "inappropriate ways"? Can patients' decision to engage in what is sometimes perceived as "deviant" sexual behavior subsequently be used as evidence of either their danger to self or others or of "grave disability"?

Despite the passage of the ADA and two decades of litigation on behalf of institutionalized mentally disabled persons (substantially geared to inquire simply into whether mental patients are being treated "like human beings"), society tends to either infantilize such persons (denying the reality that they may retain the same sort of sexual urges, desires and needs the rest of us have and generally act on) or, paradoxically, to demonize them (expressing fear of their hypersexuality and the correlative need of protections and limitations to best stop them from acting on these primitive urges).

Both these seemingly-paradoxical and contrary feelings stem from what I call "sanist" attitudes. These attitudes dominate social and legal discourse about mentally disabled persons. They infect interpersonal relationships, social cultural and political actions, judicial decisions, legislative enactments, scholarly writings, administrative rulings and litigation strategies. The operate largely on an unconscious (and often invisible) level, and, are frequently found in the writings and public pronouncements of otherwise "liberal" or "progressive" individuals.

Courts and legislatures then often respond to these sanist devices by condoning or encouraging pretextuality in both civil and criminal cases involving mentally disabled litigants. Often, the misuse (and teleological application) of social science is the vehicle through which pretextual decisions serve to reify sanist attitudes. Justice Holmes chilling epigram in Buck v. Bell -- "three generations of imbeciles is enough" -- is a perfect exemplar of these attitudes, and is particularly telling in light of my presentation topic today .

II. Development of Patients' Rights

The history of the development of substantive constitutional rights of institutionalized mental patients begins with Wyatt v. Stickney. In Wyatt, Federal District Court Judge Frank Johnson fleshed out the contours of a constitutional right to treatment by articulating a broad range of civil rights to which all patients were entitled. These "Wyatt standards" became the inspiration and "role model" for other litigation and for legislation -- generally labeled as "Patients' Bills of Rights" -- that was enacted in virtually all the states as well as by Congress. Many of these statutes contain provisions that are also reflected in the robust case law: that an individual is institutionalized does not mean that the patient is necessarily or presumptively incompetent for all or any purposes.

There has been, however, a stunning lack of attention paid to one of the most basic and fundamental of all civil and human rights: the right to sexual interaction. Most of the Wyatt standards were simply adopted whole cloth by state legislatures in their subsequent "Patients' Bills of Rights" enactments; however, only four of the states adopted that portion of the standards that guaranteed patients the right to reasonable interaction with members of the opposite sex. There has also been no follow-up litigation based upon any of the statutes that do provide for this right, and only a scattering of cases has been litigated anywhere that have sought to vindicate this right. In addition, this right is conspicuous by its absence from either piece of complementary federal civil rights legislation.

 

The general lack of attention, litigation and commentary may appear anomalous. Self-evidently, institutionalized persons do not lose their sexuality or sexual desires when they lose their liberty. On the other hand, there is, I expect, some added irony to be found in the fact that litigation over antipsychotic medication refusal -- the most contentious aspect of institutional patients' rights law -- centers on drug side-effects, and loss of sexual desire is clearly one of those noted side effects. Here we acknowledge that sexual desire is a sufficiently important personal trait so that its diminution is a factor that must be weighed into the formulation of an antipsychotic drug refusal policy; yet, we simultaneously deny the power and importance of sexual desire on hospital ward life.

Most states, nonetheless, do not recognize their patients' right to personal or interpersonal relationships. Often, the right to sexual interaction depends on the whim of line-level staff or on whether such interaction is seen as an aspect of an individual patient's treatment plan. It has even been suggested that "sexual activities between psychiatric inpatients should be strictly prohibited, and when it occurs patients should be isolated ... and tranquilized if necessary." One hospital's guidelines stated, "If you develop a relationship with another patient, staff will get together with you to help decide whether this relationship is beneficial or detrimental to you." Hospital staff is often hostile to the idea that patients are sexually active in any way.

While more enlightened institutional mental health professionals and behaviorists now recognize that patients "are and wish to be sexually active," and that sexual freedom often has therapeutic value, and while others call attention to our societal obligation to provide family planning assistance to women institutionalized in psychiatric hospitals, these authors accurately recognize the lack of literature and policy statements generally available to guide hospital practices and the reluctance with which many hospitals are willing to promulgate such policies. This gap is complemented by a similar gap in the case law and in the legal literature.

Of the few litigated cases, probably the most interesting one is the California cases of Foy v. Greenblott. There, an institutionalized patient and her infant child (conceived and born while the mother was a patient in a locked psychiatric ward) sued the mother's treating doctor for his failure to either maintain proper supervision over her so as to prevent her from having sex, or to provide her with contraceptive devices and/or sexual counseling.

The court rejected plaintiffs' claims of improper supervision, finding that institutionalized patients had a right to engage in voluntary sexual relations as an aspect of either the "least restrictive environment" or "reasonably non-restrictive confinement conditions" and that that right included suitable opportunities for the patient's interactions with members of the opposite sex. On the other hand, it did characterize defendants' failure to provide plaintiff with contraceptive devices and counseling as a deprivation of her right to reproductive choice. It also rejected a claim for "wrongful birth" by the infant child, concluding "Our society has repudiated the proposition that mental patients will necessarily beget unhealthy, inferior or otherwise undesirable children if permitted to reproduce."

The handful of recent cases that has been litigated on questions of sexual rights of the institutionalized convey a dominant set of messages: judges -- some of whom continue to endorse Justice Holmes' dictum in Buck -- are excruciatingly uncomfortable deciding these cases; lawyers are often quick to abandon any allegiance to advocacy roles in litigating such cases, and, frequently, these cases serve as a battlefield in which parents are pitted against their children over the question of the extent to which institutionalized mentally disabled persons can enforce this right. This is, in sum, an area in which virtually all participants in the judicial system join with a significant number of hospital staff employees in wishing the underlying problem would simply go away.

III. Attitudes Toward Sex

Sanist myths, based on stereotypes, are the result of rigid categorization and overgeneralization; they are created to "localize our anxiety, to prove to ourselves that what we fear does not lie within." In an earlier paper, I have set out what I saw as the primal myth:

Mentally ill individuals are "different," and, perhaps, less than human, They are erratic, deviant, morally weak, sexually uncontrollable, emotionally unstable, lazy, superstitious, ignorant, and demonstrate a primitive morality. They lack the capacity to show love or affection. They smell different from "normal" individuals, and are somehow worth less.

Our attitudes toward the sexuality of mentally disabled persons reflect and reify this myth. By focusing on alleged "differentness," we deny their basic humanity and their shared physical, emotional and spiritual needs. By asserting a "primitive morality," we allow ourselves to censor their feelings and their actions. By denying their ability to show love and affection, we justify this disparate and unequal treatment.

A recent short piece in popular journalist Herb Caen's column is illustrative. The item reads as follows:

No comment dept. (notice in the Dance Palace Community Center bulletin in Pt. Reyes): "In cooperation with the Pt. Reyes Clinic and with funding from the West Marin Thrift Store, the Dance Palace will be placing a condom machine in the handicapped bathroom."

The idea that physically handicapped individuals might have needs for condoms is apparently too bizarre for Caen to contemplate; one wonders how he would react to the notion of mentally disabled persons being sexually active.

These sanist myths lead to pretextual decisionmaking. As Professor Susan Stefan has perceptively noted, courts routinely find mentally disabled women incompetent to engage in sexual intercourse (i.e., to have sufficient competence to engage willingly, knowingly and voluntarily in such behavior), but just as routinely find such individuals competent to consent to give their children up for adoption. In one startling case, a court made both these findings simultaneously about the same woman.

Other pretextual decisionmaking is regularly present in cases involving criminal prosecutions of men charged with having sex with mentally disabled women. Again, Professor Stefan's analysis of these cases suggests that courts regularly employ a series of pretexts (as to the woman's capacity to consent) in cases where, otherwise, a conviction might not be sustainable under standard rape law standards. In other contexts, mentally disabled parents can lose custody of their children because of behavior -- such as having a "bad attitude" or being sexually promiscuous -- that would rarely (if ever) be invoked in cases of so-called "normal" parents. Expert testimony in parental rights termination cases that disabled persons "cannot show love and affection as well as can persons of normal intelligence" is relied upon to support termination findings.

These pretextual decisions are, at base, teleological: again, in Professor Stefan's words, courts judge competence "quite blatantly in terms of the desirability of the outcome." Here, as in many other areas of mental disability law, the pretexts of trial testimony and judicial decisionmaking -- premised on sanist myths -- pervades all judicial decisionmaking in this area.

IV. Rights in Collision

Say we assume that there is a baseline right to "meaningful sexual interaction" (no matter what content we give to that phrase). First, consider the standard tort law dilemma that confronts contemporaneous mental hospital administrators: how to reconcile the "open door"/"least restrictive alternative" policy with the correlative duty to protect? Broken love affairs or bad sexual experiences don't improve the mental health of non-mentally disabled individuals: do we (may we) (can we) (must we) risk scarring the presumably more fragile psyches of institutionalized patients (and is this assumption of mine simply reconstituted paternalism, infantilization or sanism?)?

Next, consider the right to be left alone. If we expand the right of patients to be sexually active, the universe of individuals with whom they can be active is fairly limited. Is there some sort of clash here (but note that this passes over the important and interesting and unasked question about conjugal visitation)? Should (must) birth control devices be supplied to psychiatric patients who are given unescorted hospital leave?

What about AIDS? Do we segregate HIV-positive patients? Does this conflict with other policies? Can we risk increasing the number of HIV-positive individuals in any aspect of society, much less in institutions?

What about birth control issues? Will the right to sexual autonomy lead to increased efforts to sterilize institutionalized individuals? How will groups opposed to sex education and the distribution of condoms in city schools react if condoms are distributed in psychiatric hospitals?

What about gender differences? In at least one New York City hospital, male patients leaving the facility on unsupervised community leave are given condoms upon request; female patients, on the other hand, have their competency (informally) assessed before birth control pills can be prescribed. Certainly this raises arguable equal protection claims.

What about abortion rights? Does an institutionalized person have a right to an abortion? How about a right to resist an abortion? There is at least one reported example of a damage suit being filed in response to an authorized abortion being performed on an institutionalized mentally disabled individual. Further anecdotal evidence suggests that it is not rare for state hospital doctors at certain facilities to attempt to coerce patients into terminating pregnancies; if there is subsequent litigation on this question, how will courts respond?

Many drugs -- including many antipsychotic medications -- are contraindicated in cases of pregnancy; do right to refuse antipsychotic medication rules and regulations have to be reconceptualized if more patients become sexually active and a higher pregnancy rate results?

Next, at what point do inquiries about "competency" take center stage? On one hand, almost all courts adhere to the catechism that competency is not a unitary status, and that an individual may be competent for one status but not for another. On the other hand, current research in progress shows that, in real life, clinicians tend to reject this line of thinking. Other research suggests, just as troublingly, that clinicians are far more likely to find incompetency when a patient disagrees with the professional's conclusions as to what treatment would be in the patient's best interests.

How will all of this play out in the context of the questions that we are addressing her? Is there one "sexual competency"? And what if one person in the relationship is "sexually competent" and the other is not? It is black-letter law that, in criminal prosecutions, a "mentally defective" person is deemed incapable of consenting to sexual intercourse. Need there be a statutory override here? One court has recently reversed a sexual assault charge that had been premised on the "victim's" mental incapacitation by nature of her institutionalization, finding that she retained the ability to consensually engage in sexual intercourse; yet, courts generally uphold statutes proscribing sexual intercourse with mentally ill individuals as not violative of either the equal protection or due process clauses.

Should this version of "statutory rape" be consigned to the historical scrap heap? What are the down sides for community cases? Is there a difference between prosecutors' attitudes towards sexual crimes in hospitals and towards those done in the community? Will awareness of the underlying issues bring about changes in state administrative policies on the investigation of criminal sexual assaults in psychiatric hospitals? Will constitutional tort and state tort claims increase, and how will courts construe such cases?

Is the competency to consent to sexual intercourse the same as the competency to choose a certain method of birth control (or to choose to not use birth control)? Or to have (or not have) an abortion? Is there a different competency for sexual intercourse and for sexual interaction that stops short of coitus?

And how do any of these competencies relate to more commonly-confronted competency questions such as medication refusal or voluntary admission?

Finally, how does the ADA affect all of this? To what extent does the ADA's bar on discrimination against disabled persons cause the reconceptualization of hospital policies prohibiting sexual interaction? If it appears that the ADA might be a tool to attack such policies, might that cause some former ADA supporters to rethink their position on the act?

In coming to our ultimate conclusions, we not only have to decide which right "trumps" which other right, but we must also decide how we set priorities in defining the underlying question. Do we look first at autonomy rights? At civil libertarian concerns? At due process requirements? At privacy interests? At competency criteria? At clinical needs? At legal status? At tort liability worries? At voluntariness constructs? At the immutable fact that "sexual interaction" -- by its very description -- assume the participation of more than one individual? No resolution of the underlying issues can even be aspired to unless we sort out these approaches and carefully articulate their interrelationships, their potential conflicts and their relative values as competing social choices.


Link to Michael L. Perlin, Hospitalized Patients and the Right to Sexual Interaction: Beyond the Last Frontier? 20 NYU Rev. L. & Soc'l Change 302 (1993-94)


NARPA Home

Tenet On-Line