Can You Give Consent with a Mental Illness?

Is it legal to have sex with a person who has bi-polar disorder? What about Schizophrenia, or other mental illnesses. While it may be obvious that a person without a mental illness should not have sex with someone who is severely incapable of taking care of themselves some patients may be highly functioning members of society. Sometimes these diseases may require a supervised guardian or conservatorship for their finances and other decisions. Does this mean you have the inability to make decisions for your body? The courts have found that as long as an individual can express and understand that they will not be a harm to themselves or others, may leave a care physicality, giving them legal self autonomy (O’Connor v. Donaldson, 422 U.S. 563 (1975)). This same right extends to receiving or refusing medical care.

Recently I had a case where a wife who was separated from her husband had accused him of raping her because she could not consent to their sexual relations due to her bi-polar status. There are reasons she would claim this beyond being victim and the case was dismissed. However, this case was fascinating to me to research the case law and science behind consent in the context of high functioning mental disorders.

What the Supreme Court Says

The court has long held a case by case basis of determining whether someone is capable of consent using a totality of the circumstances test. Rogers v. Okin 478F.Supp.1342(D.Mass.1979), 634F.2d 650(1st Cir.1980) laid out a path to self determination of a person with mental disorder to have the right to consent to medical procedures. Similarly when engaging in sexual relations one is making decisions about their body.

After establishing that the mentally ill may have self determination of their bodies Courts have further applied this right to their ability to engage in sexual relations;

“The mere fact that a person is sufficiently impaired that she requires some sort of a conservatorship doesn’t make her legally incapable of consenting to sex…the basis of the statutory scheme for conservatorships, we cannot conclude that any conserved person is legally unable to consent to sexual conduct. Instead, we conclude that the issue of whether a conserved person is able to consent to sexual conduct is a factual question for the jury to decide based on the nature of the particular conservatorship and the abilities of the conserved person.” (Kortner v. Martise, Conn. dated June 10, 2014)

While the 9th circuit has found that the mentally retarded are incapable of consent, the findings hardly apply to a person who has a high IQ who may has had the need for a conservatorship, especially when that conservator ship is voluntary (Anderson v. Morrow, 371 F. 3d 1027 – Court of Appeals, 9th Circuit 2004).

Gravely disabled must be proven beyond a reasonable doubt under its current standard of proof (Conservatorship of Smith (1986) 187 Cal.App.3d 903, 909 [232 Cal.Rptr. 277]). The court has not found that bizarre or eccentric behavior is enough to establish a disability. (Smith) Rather Courts have found that a persons disability must render them in capable of functioning in society (“Sexual autonmy rights of the mentaly ill”, Eugine Volokh, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/05/sexual-autonomy-rights-of-the-mentally-ill/?utm_term=.a4c8570965c8, ((2017).

What the Science Says

In the article “Competence to Consent to Sexual Activity in Bipolar Disorder and Schizophrenic Spectrum Disorders”, by Gabriele Mandril and Stefania Zagaro, (https://www.researchgate.net/publication/51641969_Competence_to_Consent_to_Sexual_Activity_in_Bipolar_Disorder_and_Schizophrenic_Spectrum_Disorders, (2011), a team studied consent based on the ability to recognize appropriates and the consequences of ones decisions when dealing with sexual activity in Bipolar and Schizophrenic spectrum disorders. The team suggests that a diminished lack of consent exists where these disorders are present and therefore consent may not be possible. The study found that those with schizophrenia were far less capable of consent or understandings the appropriateness of their actions than those with bi polar disorder. The article did not find that bi-polar disorder was quite as associated with a diminished capacity (Madarel, 2011). “In a general linear model analysis, patients with bipolar disorder performed better on all sexual consent measures

except on the factor’ ‘consequences-metacognition’” (Madarel, 2011).

Based on the studies findings it seems that each individual should be evaluated based on their history, diagnosis, and their ability based at the time of the incident.

Conclusion

The ability of consent in the mentally ill comes down to a totality of the circumstances. The Courts recognizes an ability to consent even in those with mental illness requiring a conservatorship. For these reasons each individual case must be examined for appropriates of the behavior and decided by a jury. (Smith). The science supports such a conclusion with differences in ability to consent correlated with different mental disorders.