When does consent not count?
In 2015, Conor Gallagher reported a story where a Dublin woman with Down syndrome was allegedly raped by a 34-year-Faisal Ellahi (Down syndrome woman ‘lacked capacity to consent to intercourse’). The man plead not guilty stating that the sex was in fact consensual, he also stated that he was unaware of her limited mental capacity. It is a common misconception that those people with Down syndrome or other forms of intellectual disabilities do not feel the need to explore their sexuality. However, the real is, that all people including those with intellectual disabilities have sexual needs, desires and feelings and these need to be addressed and explored. As a society we have made it difficult for people with disabilities to explore their sexuality but placing down laws that restrict this exploration by calling it protection.
But what is an intellectual disability?
Down syndrome, is a form of an intellectual disability characterised but not limited to: a deficit in at least two areas of adaptive behaviour which can be an inability to self-care, communicate, work or learn, a clear lack of social skills, purpose or direction; and an IQ of 70 or below (The Intellectual Disability Rights Service, n.d). A person with an intellectual disability, even a mild one would have little comprehension of what the legal process required of them without help. In Australia, one needs to seek ‘informed consent’ that is when a participant engaging in sexual relations lacks the capacity to consent, the participants should be informed of all relevant information before deciding if they wish to continue (National Health and Medical Research Council, 2017). It is also important to note that the capacity to consent is subject to change, a participant might agree to sexual activity and then say no once sexual conduct begins just like how consent works for everybody else.
Are you fucking kidding me?
Back in the Dublin courtroom, the court heard that the woman with Down syndrome lacked the ability to consent to sex (Gallagher, 2015). This was due to the fact that the woman could not independently protect herself, the court also heard that she had a trusting nature because life had not taught her to be cautious of others. This is not the man’s fault that she was not given the adequate tools or information to make an informed decision – the woman consented to an act she thought she was prepared but perhaps was not. There is a lack of education and sexual discourse as it is somewhat of a taboo to think that people with intellectual disabilities are engaging in sex. The court also heard that people with intellectual disabilities in fact have sexual desires and have the right to express them (Gallagher, 2015). There is a real contradiction here where we have started to address that people with intellectual disabilities are sexual beings but we are still limiting their sexual conduct and discourses. To help provide a healthy sexual experience for people with intellectual disabilities there must be more education around sex, consent and sexual practices but we are creating legal barriers that effectively halt sexual expression. That is like telling your child it is okay to paint with whatever colour they like and with whoever like, finding out your child was painting with your neighbour’s child and then reprimanding the neighbour’s child.
The sexual revolution comes in education – that is liberation!
I am not so naive to think that a sexual liberation for people with intellectual disabilities is upon us, and of course these laws and rules and stigmas stem from the vulnerability that abuse is much more likely to happen to someone who cannot comprehend sexual discourses. However, it is my claim that this is part of the problem is if someone is unaware of sex, their sexuality and consent they cannot agree or disagree to a notion that they can’t comprehend. By educating the intellectual disabled with age appropriate information they will be able to comprehend, process and consent or reject sexual advances. Being able to understand and process someone’s sexual advances and in turn giving them agency to decide if they want to do with their bodies. This course of action can also be seen as a tool of protection rather than the current model of action we take which is clearly not working.
Personal morals vs sexual ethics:
Are your beliefs clouding your judgement?
The most problematic part of this debate is how someone feels towards this issue will be dependent on their moral fiber, each person will bring a slightly different opinion to the table. What you must do is look at this from an ethical standpoint, is it morally okay to sexually repress people with intellectual disabilities because the idea makes you uncomfortable? Or is this merely a praxis to eliminate possible sexual abuse against those most vulnerable? Is better education needed for families, partners, caregivers when helping someone explore their sexuality? Or is it only okay for an intellectually disabled person to engage in sexual acts with another intellectually disabled person? At the end of the day we understand that we are all sexual beings and until there is more tailored approaches for each person and better education we are not going to see any changes to this system that clearly isn’t working.
Stephen is a cis-gendered gay male who spends far too much time with his two cats and eating tim tams. A self-identified sex-positive advocate he cares deeply about gender equality, disabilities, sexual education and social issues. Opinionated and bold he isn’t afraid to speak his mind and say what others won’t. With a yearning for knowledge and experience in all things relating to sex, he is a prolific writer that has developed the content for a myriad of informative Sexual Health and Wellness websites.
Stephen’s articles and writings tends to focus on social issues, sexual education, queer issues and all things fetish and absurd. He comes qualified with the completion of a double Bachelor degree in Social Sciences and literature, and a Masters in Education.