Sexual autonomy rights of the mentally ill

The criminal law of rape and sexual assault — and related civil torts, chiefly battery — seek to protect people’s sexual autonomy: their rights not to engage in sex. But the law (including the Supreme Court’s interpretation of constitutional law) also protects their rights to engage in sex. The classic dividing line, of course, is consent, whether express or implied. (Debates about whether the law of rape should turn on absence of consent or on the use of force are theoretically important but rarely of great practical significance in particular cases; and in some areas, such as the question whether it’s permissible to have sex with someone who is unconscious, the issue is uncontroversially one of absence of consent.)

The trouble has to do with people whose mental state makes us doubt whether they should have the legal capacity to consent. A familiar example is children — under the “age of consent” — who are viewed as legally incapable of consenting to sex, even if they are factually enthusiastic about having sex. (Query, though, how this fits with “Romeo and Juliet” laws which make sex legal between children who are close enough in age, even if it’s a crime for an adult to have sex with one of the children; is it that a 15-year-old lacks the capacity to consent to sex with a 25-year-old, but has the capacity to consent to sex with another 15-year-old, or is it something else?)

A less familiar, but in some ways more troubling, case involves the mentally ill or mentally disabled. On one hand, if legal capacity to consent turns on the mental and emotional ability to make choices, the mentally ill or disabled may lack that ability to a considerable degree, often even more than older children would (though of course it usually is just a matter of degree). But on the other hand, this lack of legal capacity is often permanent. If we say that it’s a crime to have sex with the mentally ill or disabled, because they lack the legal capacity to consent, that consigns them to a sexless and often therefore emotionally diminished life (or at least limits their pool of prospective sexual partners to those who are willing to commit serious felonies). On the other hand, if it’s legal to have sex with them, then this opens the door for them to be sexually exploited in ways that are hard to explain as, “Hey, that might seem degrading to us, but that’s their choice” — given that their mental limitations may make it much harder for them to make an intelligent, reasoned choice.

In any event, the Connecticut Supreme Court’s decision in Kortner v. Martise (Conn. dated June 10, 2014) offers an interesting illustration of this. Caroline Kendall Kortner (labeled Kendall in the opinion) was apparently “bright and articulate” (indeed, she had gone to the University of North Carolina), so her intellectual capacity as such wasn’t an issue; but she was apparently seriously mentally ill — she had been “diagnosed with clinical depression, borderline personality disorder, obsessive compulsive disorder, anorexia nervosa, bulimia nervosa, and periodic dystonia and catatonia” — and her mother had therefore been appointed her conservator. Kendall got involved in a romantic and then a sexual relationship with Craig Martise, which apparently involved a good deal of sadomasochistic behavior. After the relationship was over, Kendall’s mother, as Kendall’s conservator, sued Martise on her behalf, claiming partly that Martise had in fact had sex with Kendall on some occasions without Kortner’s consent, and partly that Kornter was simply unable to consent.

The opinions are complicated, and I have to run and can’t do them justice, but anyone who is interested in the sexual autonomy rights of the mentally ill ought to have a look at them, especially the majority and the principal partial dissent. Much of the discussion has to do with evidentiary error questions (the jury ruled for Martise, but the majority reverses and remands for retrial, largely because it concludes that a certain document was improperly admitted, and the clerk failed to alert the judge to the jury’s questions about the document). Still, in the process of resolving that question, and dealing with some others, the court talks about the facts of the case, and implicitly demonstrates why capacity to consent is such a thorny issue in these situations.

One holding by the court, though, is pretty straightforward though important: the mere fact that a person is sufficiently impaired that she requires some sort of a conservatorship doesn’t make her legally incapable of consenting to sex (one paragraph break added):

The crux of the plaintiff’s claim is that it was improper for the trial court to allow the defendant to present evidence that Kendall consented to the sexual conduct between her and the defendant on the ground that Kendall was legally unable to consent because she was a conserved person…. [A] conservator only has the authority specifically assigned to him or her and any other decision-making authority remains in the conserved person. On the basis of the statutory scheme for conservatorships, we cannot conclude that any conserved person is legally unable to consent to sexual conduct. Instead, we conclude that the issue of whether a conserved person is able to consent to sexual conduct is a factual question for the jury to decide based on the nature of the particular conservatorship and the abilities of the conserved person.

In the present case, the plaintiff did not establish, or even allege, that her appointment as conservator of Kendall’s person specifically included the duty to manage Kendall’s interpersonal and/or romantic relationships. Indeed, as the trial court recognized, the evidence demonstrated that Kendall lived in her own apartment, spent unsupervised time there, and was able to make decisions about her household chores and carry on interpersonal relationships, including those on the computer.

Instead, the plaintiff maintains that the fact that Kendall was a conserved person was sufficient by itself to demonstrate that she was unable to consent to sexual conduct. We disagree. A bright line rule on this issue, as suggested by the plaintiff, would be contrary to the clear legislative intent as exemplified by the statutory scheme. It would further affect the civil liberties of all conserved persons. Therefore, we conclude that the final determination of whether Kendall had the ability to consent to sexual conduct is a factual question that the jury must decide.

Surely that much, at least, is correct — in our desire to protect the mentally ill against potential coercion and exploitation, we shouldn’t consign all conservatees to sexless lives of a sort that most of us wouldn’t wish on ourselves. (Should we, though, leave the question of consent to the conservator, who could therefore authorize a third party to have sex with the conservatee, if the conservator thinks this is in the conservatee’s best interests? Is that a sensible solution for the mentally ill or mentally disabled, even if this sort of “I need my mother’s permission to have sex” position is very much at odds with our views of sex, whether involving competent adults or even children? Also, if the conservator can give consent on the conservatee’s behalf, how, if at all, should that vicarious consent be reviewable by the government, for instance if the government thinks the conservator is essentially pimping out the conservatee in exchange for money or favors?)

For a related question — how may “the government … act when criminalizing an otherwise consensual sexual act on the ground that the sex partner is too [mentally] retarded to consent to sexual contact?” — see Anderson v. Morrow (9th Cir. 2004) and the debate between the majority and Judge Berzon’s dissent; see also this post and this one.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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Eugene Volokh | June 5