Critic’s Pick: Consenting with Disabilities

As I promised last time, I’m going to delve a little deeper into the notion of consent this week by looking at what consent means for people with disabilities, including cognitive/developmental disabilities.

To start, what does it mean to have a disability? The Americans with Disabilities Act provides this definition:

With respect to an individual, the term “disability” means

(A)  a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B)  a record of such an impairment; or

(C)  being regarded as having such an impairment.

This definition does not distinguish between type, severity, or duration of the disability and is an inclusive definition that captures the roughly 30 million Americans with disabilities (as estimated by the World Health Organization in 2004). Here, a disability is a condition that limits someone’s ability to function in major life activities like communication, walking, etc., and which is likely to continue indefinitely. The first part of the definition focuses on the individual, while the following parts focus more on the reactions of others to a past or present impairment.

Let’s jump into this issue in the context of campus sexual assault policies by looking at a specific example: Marlboro College. This school boasts one of the highest enrollment rates of students with Asperger’s syndrome. When SAFER conducted a training there last fall, students expressed frustration with the explicit contradiction in the current language employed in the “effective consent” part of the policy:

‘Effective consent’ does not include consent that is given by a person who is younger than 16, mentally disabled, intoxicated or otherwise impaired, or unable to make a reasonable judgment concerning the nature or harmfulness of the activity.

Does this mean that people with cognitive/developmental disabilities just can’t give consent? Ever? Why are students with disabilities lumped together with teens younger than 16 or temporarily drunk people? What kind of message does this send? The wording suggests that people with disabilities are either considered children or not in a conscious state of mind, incapable of making decisions or forming preferences in order to negotiate sexual behavior. For the students who identify as having disabilities at Marlboro, this oversight means a policy that is sex-negative and ableist.

And it’s not just Marlboro! Searching these policies has led me to plenty of schools with policies that contain very similar wording including but not limited to College of the Holy Cross, Providence College, Trinity College, and Stanford University.

There are so many issues here to unpack on a much larger scale. Abby Wilkerson, in her article, “Disability, Sex Radicalism, and Political Agency” discusses the idea of cultural erotophobia, which is not just a general taboo against discussing sexuality and displaying sexual behavior, but a way to create social hierarchies based on gender, race, sexuality, class, age, and physical/mental ability. Erotophobia is alive and well in policies that brush over the critical concept of consent and leave it up to their students to arrive at their own definitions.

It seems as if people with disabilities are often treated as if “their sexualities exceed the bounds of respectability.” Whether this means being asexual or hypersexual, it’s as if their sexuality requires the monitoring and control of others. The notion of people with disabilities as sexual beings can be viewed as perverted. Wilkerson states:

The message to a young person marginalized based on sexual identity, disability, or both: your sexuality—a fundamental aspect of personhood—is inappropriate.

This idea is a part of disability oppression, and it infantilizes those with disabilities and strips them of their agency as sexually active adults.

A great example of this bias is mentioned in a 2009 article by Joyce Nishioka. A proposed bill in Massachusetts would have made sexual images of non-consenting seniors and adults with disabilities illegal. Yes, just like child pornography. Again, what message is this kind of bill sending? It implies that if you have a disability, you can’t give informed consent. It’s this whole attitude that people with disabilities should be controlled in a patronizing way “for their own good” that really gets me. All this does is highlight the discrimination that people with disabilities face every day and ultimately serves to undermine their self-esteem and personhood.

Disability activist/scholar Bethany Stevens has a really awesome blog called Crip Confessions, where she says:

…disparities in sexual health are often a result of the presence of oppressive social forces, such as discrimination and coercion. Therefore, disability oppression does not just work to make disabled people poor, subject to abuse, sterilized or killed; it also harms our overall sense of health.

I think there has to be a balance between protection (because there are obviously challenging issues here and since people with disabilities may be more vulnerable to assault) and sexual freedom. The sexual choices of individuals with disabilities must be respected and upheld as a part of their inherent agency and humanity.

With this framework in mind, we can really dig into the heart of the issue in campus sexual assault policies. Last time, I mentioned that Antioch College and Reed College had pretty comprehensive definitions of consent in their sexual assault policies. What I didn’t point out was each school’s mention of this particular issue. Let’s start with Antioch. One of their clarifying points in their definition of consent is:

All parties must have unimpaired judgment (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions).

A lot of schools (like Sheperd University) choose this approach, using fairly vague phrases like “unimpaired judgment” or “substantially impaired.” Reed goes further in depth, including both a provision for physically incapacitated persons as well those with cognitive/developmental disabilities.

Physically incapacitated persons are considered incapable of giving effective consent when they lack the ability to appreciate the fact that the situation is sexual, and/or cannot rationally and reasonably appreciate the nature and extent of that situation…Mentally disabled persons cannot give consent to sexual activity if they cannot appreciate the fact, nature, or extent of the sexual situation in which they find themselves. The mental disability of the party must be known or reasonably knowable to the non-disabled sexual partner, in order to hold them responsible for the violation. Therefore, when mentally disabled parties engage in sexual activity with each other, such knowledge may not be possible.

Many schools use similar language about “appreciating” the fact that a situation is sexual—Occidental College and Lewis and Clark College are two examples.

For an example of a school that does not patently reject the right of students with intellectual or cognitive disabilities to engage in sexual activity, let’s look at Westminster College’s definition of informed consent. Under the section that details when informed consent cannot be given, Westminster bullets:

Some mentally disabled persons cannot give effective consent if they are incapable of understanding the nature of the sexual situation in which they are placed.

The use of the word “some” opens up the possibility of other students with disabilities fully understanding the sexual nature of the acts they are consenting to. However, the use of the passive voice in the phrase “they are placed” again takes agency away from the disabled person. It suggests that instead of choosing sex, these subjects are “placed” (like objects) into a sexual situation. So close…yet so far. It is in the close reading of sexual assault policies that careful wording reveals its power.

For the countless number of schools who choose not to address this complicated issue at all, it’s very important to mention cognitive and developmental disabilities as Reed and Antioch and many other colleges do. Policies that neglect to even mention the complexities of consent when it includes a person who identifies as having a disability sets up a barrier for that person coming forward to report. Paying attention to this issue makes a policy more inclusive and widely applicable in different scenarios.

Unfortunately, there is no clear-cut answer, no ideal phrasing and no model policy for this issue. Perhaps the language of appreciating the sexual activity is not bad—it does not say that individuals with disabilities cannot give consent ever (wrong!). It grants these students a degree of protection while respecting their sexual agency.

So if your school is like the University of Toronto and already has a group to represent students with disabilities, get them involved! This is something campuses need to address fully, as literally millions of individuals with disabilities are enrolled in our nation’s colleges. The most important thing schools can do with respect to this issue is utilize inclusive language in their policies that does not prohibit disabled students from engaging in sexual activity.