Under what circumstances does consent not count?

Many of us questioned each other’s sexual morals.

In 2015, Conor Gallagher reported on an incident in which a Dublin woman with Down syndrome was Faisal Ellahi, 34 (Women with Down syndrome “lack the capacity to consent to sexual intercourse”).

The man pleaded not guilty, saying the sex was consensual. He also said he was unaware she had limited intellectual ability. People with intellectual disabilities do not feel the need to explore their sexuality. However, the reality is that all people, including those with intellectual disabilities, have sexual needs, desires and feelings that need to be addressed and explored.

It is difficult to accept that mentally disabled people have sexual needs

As a society, we make it difficult for people with disabilities to explore their sexuality, yet create laws that restrict that exploration in the name of protection.

Down syndrome rapist

But what is intellectual disability?

Down syndrome, is an intellectual disability characterized by, but not limited to, deficits in at least two areas of adaptive behavior, inability to care for oneself, communicate, work, or learn. A marked lack of social skills, goals, or direction; an IQ of 70 or less (Intellectual Disability Rights Servicesno source is given).

People with intellectual disabilities, even mild ones, find it difficult to understand what the legal process requires of them without help. In Australia, people need to seek “Informed consent‘ This is when the participants in a sexual relationship lack the capacity to consent. Participants should be informed of all relevant information before a decision is made whether to proceed (National Health and Medical Research Council, 2017).

The ability to consent may change, and participants may consent to sex and then say no once the sex has begun, as with other people’s consent.

Other intellectual disabilities of varying severity

Autism Spectrum Disorder (ASD): Affects social skills, communication and behavior, leading to challenges in social interaction and learning.
Fragile X Syndrome: A genetic disorder that causes developmental delays, learning disabilities, and behavioral problems.
Fetal Alcohol Syndrome (FASD): The consequences of prenatal drinking can cause cognitive and behavioral disorders.
Williams Syndrome: Involves a gene deletion that results in mild to moderate intellectual disability and distinctive personality traits.
Prader-Willi syndrome: Genetic disorders that affect behavior, cognition, and physical development, often leading to learning difficulties.

Are you fucking kidding me?

Back in Dublin, the court heard that the woman with Down syndrome lacked the capacity to consent to sexual relations (Gallagher, 2015). This was because the woman was unable to protect herself independently. The court also heard that she was trusting by nature because life had not taught her to be cautious with others.

It’s not the man’s fault, she wasn’t given enough tools or information to make an informed decision. The woman consented to an act she thought she was ready for, but in reality might not be. There is a lack of education and sexual discourse because it is considered somewhat taboo for someone with an intellectual disability to engage in sexual behavior.

There seems to be a contradiction

The court also heard that people with intellectual disabilities do in fact have sexual desires and have the right to express those desires (Gallagher, 2015). There is a real contradiction here, we have come to recognise that people with intellectual disabilities are sexual beings, but we are still restricting their sexual behaviour and expression.

To help people with intellectual disabilities have healthy sexual experiences, there must be more education about sex, consent, and sexuality, but we are putting up legal barriers that effectively prevent sexual expression. This is like telling your child that it is okay to paint with whomever they like, with whatever colors they like. Then catching your child painting with a neighbor’s child and then scolding the neighbor’s child.

The sexual revolution started with education—it’s liberation!

I am not naive to think that sexual liberation has arrived for people with intellectual disabilities. Of course, these laws, rules, and stigma stem from the vulnerability that people who cannot understand sexual discourse are more vulnerable to abuse. However, I think this is part of the problem. If a person does not know about sex, their own sexuality, and consent, they cannot consent or disagree with concepts they cannot understand.

By providing age-appropriate information to people with intellectual disabilities, they will be able to understand, process and consent to or refuse sexual advances. Being able to understand and process someone’s sexual advances will empower them to decide whether they want to use their body for sex. This action can also be seen as a protection tool, rather than the current model of action we take, which is clearly not working.

Personal and Sexual Morals:

Do your beliefs cloud your judgment?

The tricky part about this debate is that how people feel about it depends on their moral character. Everyone is going to come up with a slightly different opinion. You have to look at it from a moral perspective.

Is it morally acceptable to sexually repress someone with an intellectual disability because the idea makes you uncomfortable?

Or is it simply a practice to eliminate the possibility of sexual abuse against the most vulnerable?

Do families, partners and caregivers need to be better educated when it comes to helping someone explore their sexuality?

Or can only a person with an intellectual disability have sex with another person with an intellectual disability?

At the end of the day, we understand that we are all sexual beings, and unless there is a more personalized approach and better education for each individual, we are not going to see any changes in this system that is clearly not working.

Adult Life Center Meets Sex and Disability.

Meet Stephen, a bold and outspoken cisgender gay man advocating for gender equality and sex education. Join him on the Adultsmart blog for his bold insights.