Sex, Sexuality, Sexual Offending and the Rights of Persons with Mental Disabilities

Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental disability law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental disability law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a "patients' bar" to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental disability law-on case law, statutes, administrative regulations and lawyers' roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. The question we address in this paper is this: although there has been a general "revolution" in mental disability law, there are those whom it has not affected. To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question.

One of the co-authors (M.L.P.) began a recent article (with another co-author) in this manner: "In this paper, we address a question that has been raised to each of us innumerable times since we began to practice law: 'How can you possibly represent to the court what your client is asking for?'" 1 That article dealt with the responsibilities on counsel to ethically articulate their clients' positions on matters involving mental health treatment, even if that position was not the same as the one that counsel would have selected.In that article, we noted that a typical example might be, "how can you argue that your client has a right to sexual interaction?" 2 In other articles and a book, two of the co-authors (M.L.P & H.E.C) have written about counsel's profound ambivalence in representation of persons alleged to be sexually violent predators. 3Although the legal issues in these two areas of law-sexual autonomy and sexual offending-are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) 4 is similar in both cases. 5he past forty years has seen an "explosion of interest" in mental disability law,6 and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community. 7One of the co-authors (M.L.P.) put it starkly this way 15 years ago: The past thirty years have witnessed a revolution in American mental disability law.This revolution is one that largely constitutionalized virtually every aspect of the involuntary civil commitment and release process, as well as most "pressure points" in the course of institutionalization (the right to treatment, the right to refuse treatment, the right to the least restrictive alternative course of treatment).It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities.It witnessed the creation of a "patients' bar" to provide legal representation to such persons. 8t this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status.By way of example, the treatment standards established in the historic institutional right to treatment case of Wyatt v. Stickney 9 -the first broad-based law reform case granting a right to treatment to institutionalized psychiatric patients 10 -guaranteed such individuals the right to reasonable interaction with members of the opposite sex. 11Of the many states that adopted the Wyatt standards as bases of their Patients' Bills of Rights, however, only four adopted this portion of the standards. 12There has also virtually 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 has sought to vindicate this right. 13eople with mental disabilities, who allegedly violate sex act-related laws, often face harsh consequences that fail to account for disability.For example, individuals who are civilly committed to facilities for sexually violent predators-the most despised members of society 14 -regularly face a lifetime of maximum security confinement (often without the benefit of counsel or a jury trial prior to this institutionalization), 15 as a result of the Supreme Court's pretextual decision in Kansas v. Hendricks, 16 enforcing social control in punitive ways under the guise of the beneficence of civil commitment. 17Although a diagnosis of a mental disability is a necessary component of the civil commitment statute, actual treatment falls short of properly addressing the issues. 18Scholars and 4 The vividness heuristic is the cognitive-simplifying device through which a "single vivid, memorable case overwhelms mountains of abstract, colorless data upon which rational choices should be made" (Perlin 1997a, p. 1417).(In this context, one vivid, negative anecdote-perhaps even an apocryphal one with no basis in fact-overwhelms an extensive contrary statistical database (Perlin 2009, p. 637)).

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This resistance is replicated in the attitudes of law students.See Perlin and Lynch (2015b, pp.217-18): The notion that patients have . . .a right [to sexual autonomy]-and that this right may be found in some state patients' bills of rights . . .-strikes many students as incredulous.See also, e.g., Cucolo and Perlin (2013, p. 216) (discussing the widespread belief that television programs such as Law & Order: SVU-alleging a near 100% recidivism rate among sex offenders-are accurate).
legislators must be cognizant of the presence of disability, and understand how it influences behavior.An awareness and understanding of these issues will allow for better effective strategies in public safety rehabilitation.
We have chosen in this article to discuss these two seemingly-disparate questions together, as we believe that society's responses to the issues raised flow from similar attitudes-about sexuality and disability-and that "twinning" developments in these areas may give us some insights to the roots of these attitudes and to potential means of remediation.
At the same time that all this happened in these areas of law, another parallel set of developments has had a profound application on all aspects of mental disability law-on case law, statutes, administrative regulations and lawyers' roles.The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. 19herapeutic jurisprudence "look[s] at law as it actually impacts people's lives" 20 and assesses law's influence on "emotional life and psychological well-being." 21It mandates that "law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law, should attempt to bring about healing and wellness." 22Its ultimate aim is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. 23t embodies what Professor Amy Ronner has characterized as "the three Vs"-voice, validation and voluntariness: 24 What "the three Vs" commend is pretty basic: litigants must have a sense of voice or a chance to tell their story to a decision maker.If that litigant feels that the tribunal has genuinely listened to, heard, and taken seriously the litigant's story, the litigant feels a sense of validation.When litigants emerge from a legal proceeding with a sense of voice and validation, they are more at peace with the outcome.Voice and validation create a sense of voluntary participation, one in which the litigant experiences the proceeding as less coercive. 25e question, then, to be asked is this: although there has been a general "revolution" in mental disability law, there are those whom it has not affected.To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles?And how might a focus on therapeutic jurisprudence offer some remediation?It is to these questions we turn next.

Patients' Rights: Competency and Sexual Autonomy
An article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: "The recognition that individuals with disabilities have a desire for sexual relationships with 19 See e.g., Perlin and Cucolo (2017c, pp.1475-76). 20Wexler (2000). 22 Winick (2003). 23 Perlin (2005, p, 751).Ronner (2008).Certainly, in the context of the topic of this paper, these factors must be considered along with issues such as public safety and individual welfare, but we believe that the basic precepts of therapeutic jurisprudence still control.See generally, Birgden and Perlin (2008).See also e.g., Dickie (2008, p. 460) ("The TJ Model allows for a more therapeutic approach to managing criminal behavior in which all invested parties, including psychologists, lawyers, and correctional officers can balance the rights of the offenders against public safety"). 25 Ronner (2002, pp.94-95) other people is a relatively new concept in the scientific community." 26This observation-wildly at odds with much of the literature in the field 27 -exemplifies the confusion and misinformation that permeates this area of law and policy.The baseline, rather, for any scholarly inquiry into this subject, must be that "individuals [with disabilities] have the same needs for intimate relationships and sexual expression as everyone else." 28 With the growth in the field of mental disability law over the past 50 years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges facing these issues daily.However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law even with those who are practicing in the field, The discomfort that people feel in examining this topic is further exacerbated when discussing individuals who are institutionalized.Our attitudes toward the sexuality of persons with mental disabilities can often be divided into two categories, at odds with each other and with our understanding of the importance of human sexuality and autonomy to engage in consensual sexual activity: Society tends to infantilize the sexual urges, desires, and needs of the mentally disabled.Alternatively, they are regarded as possessing an animalistic hypersexuality, which warrants the imposition of special protections and limitations on their sexual behavior to stop them from acting on these "primitive" urges.By focusing on alleged "differentness", we deny their basic humanity and their shared physical, emotional, and spiritual needs.By asserting that theirs is 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 treatment. 29l these tensions are heightened in cases involving institutionalized persons, in which patient desires and provider discomforts must be acknowledged and recalibrated. 30Although this is often a difficult subject to raise, even among those familiar and comfortable with other aspects of mental disability, it is one that must be raised in order to comport with therapeutic jurisprudence, and legal standards.Dignity concerns and rights violations will occur if there is not a full understanding of the importance of the ability for persons with mental illness to practice free sexual expression.
In this discussion, it is critical to start with the assumption that all individuals have the capacity to consent to sexual relations, and that the presence of a mental disorder, in itself, does not mean that the individual lacks this capacity. 31With this as a "given", it is first necessary to understand the different modes of analysis to be engaged in determining capacity and competency.Capacity "refers to an individual's actual ability to understand, appreciate, and form a relatively rational intention with regard to some act." 32Competency is a legal assessment that varies based on the act or decisionmaking that is being considered. 33Both of these concepts are intertwined in assessing the extent to which a person can exercise informed consent. 26 Gilmour et al. (2014) (emphasis added).Many other issues are raised in the context of individuals with physical disabilities.
See e.g., Bahner (2012) (discussing "intimacy influenced activities" such as genital shaving).By way of example, there has been some preliminary exploration of the question of the impact of certain physical disabilities on a woman's ability to have orgasms (p.347).See e.g., Glass (1999). 27See Perlin and Lynch (2015a), Four-Letter Word, supra note 2. 28 Werner (2012).Professor Werner's focus was on persons with intellectual disabilities but there is nothing in the literature that suggests persons with mental illness/psychosocial disabilities are any different in this regard.Perlin (1993, p. 537).For a subsequent consideration of the impact of this infantilization, see Benedet and Grant (2007). 30See e.g., Tennille (2013). 31Mental Welfare Commission of Scotland ( 2007). 32 Bisbing (2007).On why inquiries into capacity are an insufficient basis for decisionmaking about persons with mental disabilities engaging in sexual interactions, see Dimopoulos (2012). 33See generally, Perlin et al. (2008).
There is also the difficulty of establishing "clinical" competency, for those persons who are institutionalized.There is no standard that clinicians can apply when determining competency; in fact, it is a very fluid determination.In a survey of institutions' views on their ability to handle ethical concerns of patient sexual expression, author Eric Wright found, "aside from formal legal declarations of incompetence, establishing competence to engage in sexual activity during treatment is further complicated by the dynamic nature of psychiatric symptoms, variation in patients' sexuality-related knowledge and experience, and institutional policies."34Moreover, in certain locations, the relationship between sexuality and privacy is "directly related to assessments about . . .competence." 35 The reality is, however, that we too often fail to take any of this into account and instead superimpose a societal presumption of incompetency, 36 a "damaging message" when applied to any aspects of a person with a mental disability. 37This, more than anything else, leads to the confusion, dissonance, and tension in this area of law, society, and personhood.This type of presumption is directly at odds with a therapeutic jurisprudence-based analysis of this issue.The questions that must be addressed here are these: are persons with mental disabilities given this sort of autonomy in their sexual decisionmaking?Are Professor Ronner's "3 V's" complied with?Generally, where incompetency is presumed and individuals who are institutionalized are treated either as asexual or hypersexual based only on their diagnosis of mental illness, we are far from establishing an ethos of care that takes into account the importance of sexuality for everyone, and keeps the sensitive nature of the topic in mind while crafting policies and procedures that empower and educate, rather than demonize or demoralize this population. 38

Sexually Violent Predator Law and Therapeutic Jurisprudence
Are the people before the court in this cohort of cases-the most despised individuals in the nation-"worthy" of the assignment of counsel, of the right to constitutional amendments, of the right to a fair trial? 39urrently, no other population in our criminal and civil legal system is more despised, more vilanized, more subject to media mis-representation and more likely to be denied basic human rights.Factual evidence regarding this population has been greatly skewed to satisfy political agendas and community outcries of retribution. 40One of the results of such outcries was the enactment of a legislative scheme that teetered on the border of civil and criminal law, of which sole purpose was to indefinitely contain individuals labeled sexual predators. 41Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as "sexually violent predators" to civil commitment facilities post incarceration and/or conviction. 42Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations. 43In more recent years, courts and scholars have begun to question the constitutionality of the laws and statutes as applied, 44 but it is on with a guaranteed right to quality counsel, that those questions will continue to be effectively raised in the courts.
Each civil commitment statute has the same basic requirements-a qualifying offense, a current mental abnormality or personality disorder, the likelihood of committing future acts of sexual violence and a finding of a nexus between all three.Jurisdictions vary on the availability and constitutionality of the Sixth Amendment right to counsel at trial 45 and although securing a constitutional right to counsel in civil commitment is an initial step, it is crucial that we not merely consider the right to counsel but discuss that right in combination with the quality of counsel and counsel's resources and knowledge in this area of the law.Effective counsel in these proceedings must be able to combat unique and complex challenges, including, for instance, the chilling effect on vigorous representation of such a despised population, and the effect of the legal process on the individual.
Thus, to what extent can therapeutic jurisprudence better inform legal practices to insure that adequate counsel is provided in consideration of Professor Ronner's principles of voluntariness, voice and validation? 46lthough it may appear that the principles behind voluntariness and voice are difficult to maintain when they are weighed with the ultimate goal of public safety, 47 we believe that voice and voluntariness need not be adverse to the goals of public safety. 48The public policy approach to sex offender treatment which is currently treatment-as-management (deterrence and community rights) undermines treatment-as-rehabilitation (autonomy and offender rights). 49Understanding and helping to reduce the impact of the harms of that arise out of the civil commitment process can benefit the individual and decrease the potential for recidivism. 50A primary focus on deterrence and community rights can lead to future unemployment, homelessness, shame, depression and anxiety, disconnection from social supports, and inadequate treatment-outcomes that have been shown to increase potential for recidivism. 51Persons in sex offender civil commitment are often denied their basic privacy rights, leading to feelings of infantilization. 52The conditions under which they live reinforce the knowledge of compromised social status and stigmatized social role as pariahs of the communtity. 53ven the simple act of having a zealous advocate can offer the client a sense of self-worth and personal value.Sexual violent predator litigation requires lawyers to be able to understand, contextualize and effectively cross-examine and rebut their adversary's position.Even a cursory examination of cases litigated on the right to counsel issue demonstrates the demand for a TJ approach to representation and to litigation. 54Lawyers must continue to compel the court to reject unconstitutional procedures and punitive measures that have not been found to reduce recidivism. 55Further, lawyers need to be educated in not only courtroom strategies but treatment and care strategies as well.For instance, if counsel were to be familiar with such approaches as the Risk-Needs-Responsibility Model or the Good Lives model 56 -embodying approaches that go "beyond the legalistic skills of the lawyers" 57 -the TJ value of "zealous counseling" might be better served. 58In particular the Good Lives model: (1) conceptualizes dynamic risk factors merely as "red flags" indicating human needs are being met in anti-social rather than pro-social ways; (2) provides a positive strength-based approach to sex offenders in viewing them as interdependent and so reliant on the good will of others to support them; (3) outlines the skills and capacities necessary to enhance treatment readiness; and (4) explicitly addresses practitioner attitudes toward offenders and the impact upon the therapeutic alliance. 59