The “capacity to consent to sex” is thus a somewhat misleading phrase, as sexuality may encompass a variety of different types of sexual acts, each of which may require its own capacity determination. For example, one may lack the capacity to manage one’s portfolio of stocks but still be able to make decisions about which pair of socks to wear in the morning. 4 To say that it is decision-specific means that one must consider capacity as it relates to a particular decision, rather than to all decisions. Capacity determinations require a more particularized analysis that is both decision-specific and circumstance-specific. Simply having one of these conditions, however, is not sufficient to declare that one lacks capacity. Adults may experience moments or long stretches of incapacity-whether because of intoxication, intellectual disability, or mental illness. But this presumption of adult capacity is rebuttable. After becoming adults, we are presumed to possess the legal capacity to make decisions, which allows us to pursue our own unique conception of the good life. 3Īll states have adopted an age of consent rule that deprives minors of legal capacity, even if they might in fact have the psychological faculties for sexual decision-making. We all experience this lack of legal authority to engage in sexual decision-making during our youth. This may be demonstrated through explicit dissent-a verbal no, for instance-but it may also be established by proving that a person lacked capacity to consent, regardless of whether he or she said yes or no.
In a legal case for sexual assault, a prosecutor must typically prove that there was a lack of consent to the sexual act. The law is concerned with the capacity for sexual decision-making because of the central importance of consent in the legal regulation of sex.
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This article outlines the basic concepts behind sexual consent capacity and provides some guidance on how to pursue capacity assessments. Psychiatrists and other mental health professionals are experts at assessing individuals’ psychological faculties, and they thus have a key role to play in assessing capacity for sexual consent. 1,2 Any analysis of sexual consent capacity must balance the need for sexual expression with this possibility of sexual harm.
At the same time, people with mental impairments, especially women, are at increased risk for sexual violence compared with the general population. Sexual expression can help promote mental and physical health, and the needs associated with sexuality do not necessarily disappear just because one has mental impairments. Sexuality is an important aspect of the human experience.
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