Love Is Just A Four-Letter Word': Sexuality, International Human Rights, and Therapeutic Jurisprudence

• Author: Michael L Perlin & Alison J Lynch
• Position: Professor of Law; Director, International Mental Disability Law Reform Project/Esq., Disability Rights New York
• Pages: 9-48

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(2015) 1 CJCCL

“Love Is Just A Four-Letter

Word”: Sexuality, International

Human Rights, and  erapeutic

Jurisprudence

Michael L Perlin* & Alison J Lynch**

One of the most controversial social policy issues that remains underdiscussed in scholarly

literature is the sexual autonomy of persons with disabilities.  is population has faced a

double set of con icting prejudices: on one hand, people with disabilities are infantilized

(as not being capable of having the same range of sexual desires, needs and expectations

as persons without disabilities), and on the other hand, this population is demonized

(as being hypersexual, unable to control primitive urges). Although attitudes about the

capabilities of persons with disabilities are changing for the better, attitudes toward

persons with disabilities engaging in sexual behavior have remained  rmly in place for

centuries. However, the rati cation of the United Nations’ Convention on the Rights of

Persons with Disabilities (CRPD) demands we reconsider these attitudes.

 is paper will (1) review the history of how legal and social issues regarding

sexuality have been ignored and trivialized by policy makers and the general public;

(2) highlight sections of the CRPD that force us to reconsider the scope of this issue; (3)

o er suggestions as to how states must change domestic policy to comport with CRPD

mandates; and (4) consider the implications of therapeutic jurisprudence insights for the

resolution of these issues.

* Professor of Law; Director, International Mental Disability Law Reform

Project; Director, Online Mental Disability Law Program, New York Law

School, michael.perlin@nyls.edu.

** Esq., Disability Rights New York, Alison.Lynch@disabilityrightsny.org.

10

Perlin & Lynch, Love Is Just A Four-Letter Word

I. I

II. H S I H B T  L  S

A. In Psychiatric Institutions

1. An Overview

2. What is Meant by “Sex”?

i. Other Kinds of Sex

ii. Masturbation

iii. Care Workers

B. Current Laws Relating to Sexual Autonomy of Persons with Disabilities

C.  e E ects of Institutionalization on Persons with Disabilities and

Sexual Autonomy

D. Clinical Questions Regarding Sexual Autonomy of Persons with

Disabilities

E. Cultural Issues Surrounding Sexual Autonomy of Institutionalized

Patients

F. Conclusion

III. O A

A. International Human Rights

B.  erapeutic Jurisprudence

IV. C

I. Introduction

One of the most controversial social policy issues that remains

dramatically under-discussed in scholarly literature is the sexual

autonomy of persons with psychosocial and intellectual disabilities,

especially those who are institutionalized.  is population – always

marginalized and stigmatized – has traditionally faced a double set

of con icting prejudices: on one hand, people with disabilities are

infantilized (as not being capable of having the same range of sexual

A portion of this paper was presented (by MLP) at the Biennial Congress

of the International Academy of Law and Mental Health, July 2013,

Amsterdam,  e Netherlands.  e authors wish to thank Dr. Maya

Sabatello for her sharing of Israeli source materials.

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(2015) 1 CJCCL

desires, needs and expectations as persons without disabilities), and on the

other hand, this population is demonized (as being hypersexual, unable

to control base or primitive urges).1 Although attitudes about the abilities

and capabilities of persons with disabilities are changing for the better,

it remains true that, “many people still struggle to accept that mentally

d isabled individuals engage in s exual activity.”2 Even as the “sexual

revolution” in the United States recognized sex and sexuality were needs

rather than simply desires, persons with disabilities were left out of this

shift in perception.3 Attitudes toward persons with disabilities engaging in

1. See e.g. Maya Sabatello, “Disability, Human Rights and Global Health:

Past, Present, Future” in Michael Freeman, Sarah Hawkes & Belinda

Bennett, eds, Law and Global Health: Current Legal Issues, vol 16 (Oxford:

Oxford University Press, 2014) (“women with disabilities are … assumed

to be a-sexual, sexually inactive or else, that their sexuality and fertility

should be controlled” (emphasis added) at manuscript 8) [Sabatello,

“Disability, Human Rights and Global Health”]. Compare Doug Jones,

“Domestic Violence Against Women With Disabilities: A Feminist Legal

 eor y Analysis” (2007) 2:1 Florida A&M University Law Review 207

(“[p]erhaps the most signi cant myth is that women with disabilities are

asexual” at 223); Andreas Dimopoulos, “Let’s Misbehave: Intellectual

Disability and Capacity to Consent to Sex” (paper delivered at the Society

of Legal Scholars, Faculty of Law, Brunel University, 1 September 2012),

online: SSRN (discussing the

“social stereotype for persons with intellectual disability that they should

not be having sex, that they should be asexual” at 9); Rangita de Silva

de Alwis, “Mining the Intersections: Advancing the Rights of Women

and Children with Disabilities Within an Interrelated Web of Human

Rights” (2009) 18 Pac Rim L & Pol’y J 293 (women with disabilities are

especially vulnerable to “the imposition of social stereotypes of asexuality

and passivity” at 296), to Amy Spady, “ e Sexual Freedom of Eve:

A Recommendation for Contraceptive Sterilization Legislation in the

Canadian Post Re Eve Context” (2008) 25 Windsor Rev Legal Soc Issues

33 (“[i]t is accepted that many persons with mental disabilities experience

the same, if not greater, sexual urges as other individuals” at 56).

2. Maura McIntyre, “Buck v. Bell and Beyond: A Revised Standard to

Evaluate the Best Interests of the Mentally Disabled in the Sterilization

Context” (2007) 1:4 U Ill L Rev 1303 at 1309.

3. Oana Georgiana Girlescu, Sexuality and Disability: An Assessment of

Practices Under the Convention for the Rights of Persons with Disabilities

(Master of Laws in Human Rights  esis, Central European University,

2012) [unpublished]. See Balázs Tarnai, “Review of E ective

Interventions for Socially Inappropriate Masturbation in Persons with

Cognitive Disabilities” (2006) 24:3 Sexuality and Disability 151 (quoting