Academic journal article Washington Law Review

"Everybody Is Making Love/or Else Expecting Rain": Considering the Sexual Autonomy Rights of Persons Institutionalized Because of Mental Disability in Forensic Hospitals and in Asia

Academic journal article Washington Law Review

"Everybody Is Making Love/or Else Expecting Rain": Considering the Sexual Autonomy Rights of Persons Institutionalized Because of Mental Disability in Forensic Hospitals and in Asia

Article excerpt

Abstract: One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures. As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal-justice system: who may be incompetent to stand trial; who have been found incompetent to stand trial; who have been found not guilty by reason of insanity; or in some cases, who have been convicted of crimes. The legal statuses of these populations raise public concerns such as the extent to which they are entitled to exercise civil rights while institutionalized, and the potential additional danger that might be associated with the granting of sexual freedom to these populations.

Additional difficulties are presented when we consider the application of this right in both civil and forensic hospitals in Asia, where the notion of "patients' rights" regrettably lags far behind the construction of such rights in Western nations. How different would my conclusions be if I were looking at these issues from an international perspective? And what impact, if any, would the new United Nations Convention on the Rights of Persons with Disabilities (U.N. Convention) have on my answer?

It is impossible to meaningfully come to grips with the multiple issues presented in this Article without also dealing with the social attitude of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. Sanism infects both our jurisprudence and our lawyering practices; it is largely invisible and largely socially acceptable, based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged "ordinary common sense" and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

This Article will (1) discuss the state of the law that applies to sexual autonomy in psychiatric institutions, (2) review the social policy issues as they relate to (a) forensic patients and (b) Asia, (3) explain the pernicious impact of sanism, and (4) seek to offer some tentative solutions to the underlying dilemmas.

INTRODUCTION

Over the past fifteen years, I have frequently spoken about issues related to psychiatric patient sexuality. I have grown accustomed to the "There he goes again!" eye-rolling I get from colleagues when I tell them that I write and think about the issues related to institutionalized patients having sex. When I first worked on this topic, I led with this observation in the introduction to my oral presentation,1 and I assure you, nothing much has changed since then. But I have gotten older and wiser (well, older) so my response is much cooler than it used to be.2

But back then - and until very recently - I focused solely on what would probably be seen as the most benign population to consider: civil patients in psychiatric hospitals. How would people react if this inquiry were "jumpshifted" into a discourse about other populations? Back then, I also focused solely on the domestic aspects of this question. How different would my conclusions be if I were looking at these issues from an international perspective? Finally, what impact, if any, would the new United Nations Convention on the Rights of Persons with Disabilities3 (U.N. Convention) have on my answer?

To begin with, sexual behavior is inextricably intertwined with "custom, tradition, and taboo. …

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