Disabling consent, or reconstructing sexual autonomy.
No matter how (re)furbished, consent is not synonymous with nor solely constitutive of sexual autonomy, now relationally defined and inclusive of persons historically ejected from autonomy's ambit.
Another compensatory reform, then, to the gap in sexual assault protections for severely disabled persons is the expansion of laws to regulate or criminalize sexual conduct within certain relationships of dependence unaddressed by extant status restrictions. Status restrictions are, for the most part, strict liability offenses unconcerned with intent, scienter, consent, etc. Sex otherwise consensual may nonetheless be impermissible under per se proscriptions.
Status restrictions on sexual relations are neither unprecedented nor uncommon: assault laws frequently contain provisions restricting or prohibiting sexual contact within particular relationships. (389) These status restrictions include provisions restricting sexual conduct between parents and their children, teachers and their students, employers and their employees, and/or doctors and their patients. (390) Laws regulating sex within family relationships (often codified as "incest") commonly target consanguinity or biological relation over power inequality. (391) Laws regulating sex between teachers and students are premised on both the alleged immaturity of minors (392) and the likelihood of coercion or manipulation. (393) Age of consent statutes, perhaps the most widespread example of status restriction codifications, are generally understood to concern both the uneven social power dynamics between adults and minors as well as the presumptively limited developmental capacity of young people. (394) At their best, status restrictions track manipulations of relational dependence. Status restrictions reflect that there are certain professional, familial, and other social relationships in which one subject is disqualified from processes of sexual negotiation due to acute dependence and/or inequality (e.g., psychotherapists, high school coaches, aunts, and uncles). (395)
Like other states, Connecticut criminalizes sex not only between adults and minors (396) (and between older adolescents and younger adolescents/children), (397) but also within specified relations of dependence. Connecticut currently imposes restrictions of differing degrees of severity on relationships between parents/guardians and their children, (398) custodial supervisors (in the justice system, hospitals, and other institutions) and their charges, (399) psychotherapists and their patients, (400) school employees and students, (401) coaches and players at the secondary school level, (402) and employers and employees--if the employer is twenty-years-old or older, and the employee is under eighteen. (403) Sexual contact is also limited among familial relatives, along kinship lines stipulated in Connecticut General Statute [section] 46b-21. (404)
But are these restrictions sufficient? Or to put this differently: how often do perpetrators of sexual assault "look" like Richard Fourtin--the mother's boyfriend, an informal caretaker, a person of trust? Might prevalence of sexual abuse within heretofore unregulated relations of dependence be grounds for proscription?
a. Capturing Status by the Numbers
To track patterns of sexual violence within relations of dependence, we reviewed, coded, and analyzed all sexual assault cases heard by the Connecticut Appellate Court between January 1, 2010, and March 1, 2015: a dataset of 175 cases and 205 unique victims. (405) The results confirm research on sexual assault incidence more generally, which suggests that about 80% of sexual assaults are committed by someone known to the victim (406)--a number that rises to over 90% for victims who are minors when assaulted. (407) Of all victims whose connection to the perpetrator is described in the respective case (n = 161), 87.0% had a prior, established relationship with the perpetrator, and 72.0% had a relationship that could be classified as involving significant dependence and/or power imbalance. (408) Sex within some of these relationships is already prohibited in Connecticut--for example, sex between fathers and their children, or sex between a teacher or coach and their students. (409) In other relationships, though, manipulations of power and dependence may go unchecked.
Although fathers--the most common perpetrators in this set--are prohibited by status restriction from engaging in sexual contact with their children, mothers' boyfriends, and unmarried partners of parents generally, are not (our dataset contained only one female perpetrator). (411) The statutory focus on fathers rather than unmarried parents' partners as potential perpetrators (even when the partner cohabits with the mother and maintains a parental household role) (412) seems, superficially, commonsensical: the relationship involves neither consanguinity nor a formal, legal relationship of dependence. As shown in Table 1, though, mothers' boyfriends may perpetrate sexual assault at close to the same rate as fathers: they are the second most common perpetrators in our case review (accounting for 14.9% of assaults across appellate cases in which the relationship between victim and perpetrator is specified, compared to 17.4% for fathers). Uncles, also common perpetrators (6.8%), are prohibited from sexual contact with their nephews and nieces, but only by consanguinity. (413) An uncle by blood faces status restrictions on sexual contact with his niece or nephew, but an uncle by marriage (or an aunt's live-in boyfriend) does not. (414) These legal discrepancies--or what we might crudely call "the green light" for mother's boyfriends and uncles--demonstrate the failure of existing status restrictions to capture common manipulations of relational dependence.
If, in the interest of protecting and promoting sexual autonomy, we shift from a model of status restrictions based on age and consanguinity (or legal affinity, e.g. relatives "by marriage" rather than "by blood") to a model based on significant dependence and inequality, other relationships may be regulable. Sexual autonomy might provide normative grounds to restrict, for example, sexual contact between a young woman and her mother's boyfriend, as the young woman may be unduly impeded from codetermining (in the Fourtin scenario, exiting) the relation despite the absence of a formal (legal or consanguine) relationship.
Recall Rubenfeld's second seventeen-year-old (pressured into sex with the high school principal (415)) and Spindelman's cannibalistic sex. (416) We are inclined to think of sex in heretofore legally unregulated relations of dependence (namely, the child of a parent and the parent's intimate partner) like sex between a teenage student and a high school teacher, or, strange-sounding as it first seems, sex that entails killing, eating, or causing severe and irreversible injury to one's partner. Under a relationally reconstructed sexual autonomy sensor, sex with your mother's boyfriend, sex with your high school principal, and sex that involves irreversible injury may be impermissible because of the permanent constraints they level on an individual's (sexual) future, and therefore hir ongoing ability to codetermine sexual relations. (417) Relational sexual autonomy protects not just the sexual present but the possibility of a sexual future. And capturing status relations, as opposed to extending the reach of "physical helplessness" or "mental incapacity," renders sex between Richard Fourtin and L.K. impermissible, without the risk of criminalizing all sex with persons with disabilities.
Viewed alongside our appellate case review, Fourtin appears both exceptional and typical. Exceptional, because the statutes under which Fourtin was charged-- those that reference physical helplessness--are so infrequently exercised by the state (418) and because reported assault cases rarely involve victims with identified disabilities. (419) Typical, though, because the relationship between Richard Fourtin and L.K. was one of significant dependence and power imbalance due to Fourtin's dual roles as L.K.'s mother's boyfriend and one of L.K.'s informal caretakers. (420) A recurring theme across witness and expert testimonies in and preceding Fourtin is L.K.'s significant dependence on others in her day-to-day life, including on Fourtin himself. (421) As disabled persons living in a world compulsorily captivated by and structurally designed for the able-bodied, (422) L.K. and similarly-situated adults are often "radically dependent" on the assistance of those around them in order to complete tasks necessary for both survival and flourishing. (423) This dependence places severely disabled persons at substantially higher risk of victimization, sexual and otherwise. Research suggests that women with disabilities are approximately four times more likely than women without disabilities to experience sexual assault. (424) For persons with intellectual disabilities (ranging from mild to severe), risk of victimization may be even greater, approximately ten times higher than for persons without intellectual disabilities. (425) Comparative rates of lifetime risk of sexual assault do not capture the heightened risk of repeated victimization: in one study of persons with diverse disabilities who had experienced sexual assault, nearly half (49.6%) had experienced ten or more sexually abusive incidents in their lifetimes. (426)
Especially instructive are the rates at which disabled people are sexually assaulted within the context of relationships of intimacy and dependence. Dick Sobsey and Tanis Doe found that 37.5% of perpetrators held supervisory positions over their victims, contracted on the basis of the victims' disability. (427) Another 28.8% of perpetrators had other supervisory positions over the victims. (428) Evidence also suggests that factors associated with increased dependence, including decreased mobility and increased social isolation, are strongly predictive of experiencing sexual violence as a disabled person. (429) Like Anne Finger, we recognize that the trope of sexual victimization itself can be oppressive, if that trope is leveraged to categorically ban sex with, or withhold sexual information from, persons with disabilities. (430) Far from pointing toward a general prohibition, however, these data support expanding status restrictions to restrict or prohibit sexual conduct across relationships of dependence.
We find a host of compelling reasons, then, for expanding status restrictions in Connecticut (and beyond) to capture certain relationships of dependence for both disabled and nondisabled persons alike. However, we concede that categorical restrictions on sex between disabled persons and their caretakers could, like overextending the "physically helpless" or "mentally defective" subsections of Connecticut sexual assault law, impede the sexual autonomy of persons like L.K. (431) Caretakers may be the ones best equipped to act as sexual assistants for their severely disabled clients. The conundrum is this: those best able to sexually gratify persons with severe disabilities are those best positioned to abuse them (hence our proposal for expanded status restrictions). (432) One possible way to circumvent this conundrum is to render affirmative consent an affirmative defense within certain status relations. (433)
A last note on capturing status: expanding the universe of status relations in which sex is legally impermissible, like injecting an affirmative consent standard into sexual assault law, also sounds with Denno's "contextual approach" to determinations of sexual consent. (434) A critical factor under her contextual approach is "defendant's knowledge in relation to the victim's ability to consent." (435) Defendant's knowledge is better grounds for determining consent than, say, the "[intellectually disabled] victim's actual physical appearance while testifying," which invites prejudicial, decontextualized interpretations. (436) "More appropriate," advises Denno, "is a court's consideration of the victim's relationship to the defendant. Although the factor is important in all rape cases, it becomes a major issue in cases involving a mentally retarded victim because it bears on whether the defendant knew or should have known that the victim was capable of consent in a particular situation," (437) Our Appellate case analysis suggests that Denno is right to be concerned: in the few cases we reviewed that involved a disabled victim, the perpetrator was unambiguously aware of his victim's communicative limitations. (438) Richard Fourtin, like many a mother's boyfriend, knew about his girlfriend's child. At the very least, he knew L.K. was intellectually disabled, nonverbal, in a wheelchair, and isolated. (439) That this sort of information is more readily ascertainable in relations of dependence and trust provides further normative ammunition for proscribing sex in those relations.
3. Accommodating Sex
Sexual autonomy as a universal human capability portends the following policy recommendations, (440) but so does ableism, and the ugly history of the wide- scale denigration or outright denial of the sexuality of persons with disabilities, particularly intellectual disabilities. (441) Persons with disabilities have been figured--by medical experts, scientists, journalists, and cultural workers--as sexually predatory or, more often, as childlike and innocent. (442) Both constructs, predator and child, have authorized the refusal of sexual information to, and impeded the sexual opportunities for, persons with disabilities. (443) Women with disabilities have and continue to suffer disproportionate suppression of their sexuality. (444) In the past, medical and political authorities sterilized women or otherwise curbed their sexuality, motivated by eugenic fears of social degradation. (445) In the present, medical and political authorities restrict the sexual lives of women with disabilities out of concern for the caretaking responsibilities and financial burdens of their potential offspring. (446)
Meanwhile, the modern disability rights movement, which has justifiably centralized discrimination and accommodation in notionally public vectors of housing, employment, and education, has paid scant attention to ostensibly private vectors of sex and intimacy (which are hardly private in so many scenarios involving severe disability). (447) And while the silence around sexuality and disability has broken in recent years, journalistic, documentarian, pornographic, scholarly, and autobiographic accounts of sex and disability generally feature persons with physical disabilities, sidestepping what might be thornier moral and philosophical questions regarding sexual flourishing for L.K. and others with intellectual disabilities. (448)
Reconstructing sexual autonomy as a universal human capability, avowing the nearly ubiquitous historical suppression of the sexual autonomy of persons with disabilities, and integrating recent contributions of feminist and queer disability scholarship and activism, our suggested institutional reforms constellate around three components: greater access for sexual information and opportunities, far more comprehensive, variably tailored sexuality education, and substantive provisions for sexual assistance.
Such reforms, it should be noted, are some steps removed from the moral urgency of L.K.'s sexual assault and the legal lacuna made manifest in Fourtin. Rather, these policy proposals point toward broader structural and social change that foster sexual autonomy across the spectrum of ability, while at once better equipping disabled persons in particular with sexual self-confidence and sexual decision-making capabilities.
a. Sexual Access
In "A Sexual Culture for Disabled People," Toby Siebers convincingly argues that our dominant understandings of the sexual good life are shot through with ableist assumptions. (449) From "great sex" to beauty standards to personal and social determinants of intimacy to the propriety of "the private" for sexual conduct, our macro social norms and everyday expectations regarding sex prefigure able-bodied, rational, and reasonable persons inhabiting the amatory couple form. (450) It is because this concept of a "sex life"--individualized, domesticated, privatized, and oriented around a presumptively proper physicality, ability, and genital-directedness--is so tightly wound to normative ability standards that Siebers opts instead to carry a brief for "sexual culture." (451) "Sexual culture" is not simply a synonym for sex in public. (452) As Siebers explains, "the distinction between sex life and sexual culture relies not on privacy but access as defined in a disability context: sexual culture increases access for disabled people not only by breaking down the barriers restricting them from sexual locations but also by bringing sexual rights to where they live." (453) For Siebers, a critical element of expanding sexual culture for persons with disabilities is broadening access, which means, in part, remapping zones of sexual permissibility and impermissibility so that the erotic worlds of persons with disabilities are not so "obnoxiously cramped." (454) Access entails: affording more privacy rights to disabled persons in group homes; eliminating the '"no sex' policies that exist in American nursing facilities, mental hospitals, and group homes"; (455) providing more (or as is often the case, any) opportunities to meet sexual partners, to masturbate, and to read erotic and pornographic literature or view erotic or pornographic films; (456) delivering "information about sexuality[; and] ... addressing sexual needs and desires as part of health care." (457) Finally, access to sexual culture entails a right to choose what one does not want, to refuse sexual advances from caretakers. (458)
Making sexual culture more realizable for persons with disabilities entails approaching disability from a social welfare perspective and not simply from an antidiscrimination perspective. (459) If we are to guarantee a right to sexual culture, that guarantee cannot be secured through a "reasonable accommodation" particularized to one sector of social life. (460) Rather, greater accessibility of sexual culture will depend upon cross-sector reforms and much more significant state investment in, inter alia, transportation, healthcare, assistance with contraception, abortion, and family planning, and in providing information about varieties of sexual conduct and intimacy arrangements.
So too, transforming sexual access entails more than minimizing physical barriers or amending group home policies. In his 1990 study of fourteen men with cerebral palsy, Russell Shuttleworth found that "the two issues that most often emerged in [his] discussions ... were the difficulty [men] experienced in meeting social expectations of normative functioning and control and male gender role expectations." (461) Shuttleworth's informants were perceived by themselves and others as undesirable on account of their restricted mobility, speech impairments, and limited bodily control. (462) And his informants' inability to fulfill "hegemonic expectations of masculinity" like "competitiveness, strength, control, endurance, and independence" rendered them unattractive and inadequate. (463) These observations paired with Shuttleworth's own normative priors lead him to call for a more capacious understanding of "barriers" to access, one that includes "parents' negative or protective attitudes, a lack of sexual negotiation models for disabled people, unattainable ideals of desirability ... poor body image ... among other concerns." (464) Certainly, these barriers cannot be lowered or eradicated by policy changes and institutional reforms alone, but they should nonetheless be on our sexual justice radar as we seek to improve access. (465)
In addition to spatial and representational transformations, meaningful access to sexual culture also demands more comprehensive sexuality education for all persons, with or without physical or intellectual disabilities.
b. Sexuality Education (466)
A commitment to sexual autonomy--as a capability that needs to be cultivated-- requires a minimal level of publicly funded comprehensive sexuality education (CSE). Below, we sketch out briefly United States CSE in its fraught political context, describe what CSE could be, and then synthesize and speculate upon ways CSE might interface with disability.
Comprehensive sexual education programs were all but rubbed out in the United States between 1981 and 2009. (467) Until quite recently, Abstinence Only Until Marriage (AOUM) programs dominated public schools, especially those in poorer communities. (468) AOUM programs were first federally funded under the Reagan Administration, and "funding for these unproven programs grew exponentially from 1996 until 2009, particularly during the years of the George W. Bush Administration, and to date Congress has funneled over one-and-a-half billion tax-payer dollars into abstinence-only-until-marriage programs." (469) AOUM programs are both scientifically inaccurate and ineffective against their own success measures. (470) They elide or demean queer sexualities, and reproduce presumptions of male aggression and female vulnerability. (471) Such programs promote not sexual autonomy but sexual incompetence and ignorance.
While the Obama Administration has relaxed the funding stranglehold of AOUM, (472) most publicly funded sexuality education programs remain abstinence-only or "abstinenceplus," (473) and the great majority of United States teenagers either do not learn anything at all (in school) about sex or learn only that sex should be deferred. (474) Comprehensive sexuality education, while certainly a major improvement from AOUM, does not extend broadly or deeply enough to foster the capability to codetermine sexual relations. Some CSE programs avow and respect minority sexual orientations and provide accurate information about contraceptives, sex, reproduction, and disease. (475) Yet CSE programs too generally run on the "disaster prevention model" (476) of sexuality education, emphasizing how to delay sex and avoid pregnancy and STIs. (477)
Virtually nonexistent are sexuality education programs in which sexual desire is celebrated as a "force for good." (478) Rarely are sex acts--what they include, why they (should) feel good, how to refuse or initiate them, how to perform them well and safely-- discussed plainly and positively. (479) Infrequently too are the "plumbing" lessons of sexuality education taught alongside either critical interrogations of gender normativity, heterononnativity, and cultural valorizations of able-bodiedness and able-mindedness. (480) Nor does comprehensive sexuality education typically entail less lofty but no less important lessons regarding how to start and end relationships, how to respectfully argue with intimate partners, and how to determine and revise one's sexual and relational values. (481)
CSE programs that extolled sexual pleasure and sexual safety, emphasized sexual and intimate decision-making, and assessed the force and ethicality of cultural norms would better foster sexual autonomy as a capability for all people.
Evidently, there is nothing about such programs that are "disability-specific." But we might think of comprehensive sexuality education (what it could be, not just what it is) as a policy reform with universal objectives (e.g., sexual literacy; cognizance of physiological development; familiarity with contraceptives, their use, and effectiveness; critical apprehension of cultural and media stereotypes around gender and sexuality; etc.) that should be differentially, sometimes individually tailored to persons across the spectrum of intellectual and physical abilities. (482) While we may expect all students to reach some specified threshold of sexual literacy--a threshold that should no doubt be co- determined by persons with disabilities (483)--reaching such objectives may require customized teaching lessons and many more resources for persons with disabilities. (484)
Although over the past two decades sexuality education programs have been created for and targeted to disabled audiences, they tend, as with sexuality education programs for nondisabled adolescents, to emphasize ways to minimize risk of abuse, STIs and pregnancy, rather than ways to enhance decision-making skills, to interrogate gender and ableist norms, or to experience pleasure. (485) And sex education, particularly for persons with intellectual disabilities, cannot be administered solely through decontextualized knowledge-banking. Because a person's intellectual disabilities wax and wane across different social settings (depending on comfort, anxiety, newness, etc.), those with such disabilities need practice and experience communicating about sex and intimacy in different contexts. (486) For example, a study in Japan that administered specially tailored, social- situational sexual education to persons with intellectual disabilities found that the intervention improved the subject population's skills in "communication," "management," and "problem- solving." (487) And a small study in Ireland found that one-on-one sexual education interventions for persons with moderate intellectual disabilities not only improved the subjects' knowledge of sex, sexuality, and sexual safety, but also "improve[d] capacity to make sexuality-related decisions" for persons with moderate intellectual disabilities. (488) Both the Ireland and Japan studies demonstrate how sexuality education can better not simply sex, but sexual autonomy as a decision-making capability.
Many researchers have argued too that the disproportionate dearth of sexual information and education among the disabled likely makes the population more susceptible to sexual exploitation and abuse. (489) Some persons with disabilities neither know they can say "no" nor recognize themselves as decision-makers in matters of intimacy and sex. (490) Sexuality education can de-stigmatize conversations about sex, sexual health, and sexual abuse. L.K. had no sex education whatsoever. (491) When undergoing gynecological examinations, L.K. was noncommunicative. (492) We have no direct knowledge of L.K.'s cognitive abilities, and expert testimony is too conflicting to be determinative (493): perhaps she simply can neither receive nor remember information regarding sexual health, pleasure, and violence. But we wonder if perhaps she had no sex education because nobody ever thought to offer it and that nobody ever thought to offer it because of the presumptive asexuality/sexual disorderliness of disabled people. (494) Richard Fourtin, a jury found, violated L.K. in the most affronting, brutal way. But might we, a culture of systemic "compulsory able-bodiedness" (495) and selective erotophobia, (496) less perceptibly undermine her sexual autonomy by categorically withholding robust, comprehensive sexual educational opportunities? (497)
c. Sexual Assistance
Finally, another way to promote the sexual autonomy of persons with disabilities is to provide publicly funded sexual assistance. Compensated sexual assistants for persons with disabilities operate legally in countries like Germany, Switzerland and Denmark (all countries where prostitution is legal and regulated), and operate illegally in countries like Sweden and the United States (where purchasing sex is criminalized). (498) While there has been some recent public debate and advocacy regarding the provision of commercial sexual services for persons with physical disabilities, commercial sexual services for persons with intellectual disabilities is hardly ever mentioned. (499) Surely, we are aware that intellectual disabilities more seriously complicate questions of consent, wantedness, recognizable pleasure and pain, and cognizance, than do physical disabilities. But such difference is not a warrant for erasure. Rather, sexual assistance may facilitate the sexual autonomy of persons with intellectual disabilities, but such assistance must be carefully (and indeed, sometimes expensively) monitored and individually tailored. Nonetheless, we can make the generalizable assumption that in scenarios involving (publicly or privately) paid sexual assistants/assistance, affirmative consent should actualize as it might in noncommercial encounters: through a message board, (500) smiles, (501) and/or written, detailed plans of action. (502)
To dimensionalize sexual assistance, we turn to Don Kulick and Jens Rydstrom's Loneliness and its Opposite: Sex, Disability and the Ethics of Engagement. (503) The authors offer a stunning description of--and ethical defense for--publicly funded assistance for the erotic lives and sexual flourishing of persons with significant disabilities. Kulick and Rydstrom compare policies, practices, and public opinion regarding the sexuality of persons with disabilities in Sweden and Denmark. Utilizing ethnographic interviews, participant observation, archival research, and discourse analysis, they demonstrate that Sweden is resolutely hostile towards the sexuality of persons with disabilities while Denmark is consistently if not always facilitative. (504) Swedish state and group home policies, as well as personal assistants themselves, generally contain, "discipline," or "ignore" the sexuality of persons with disabilities, (505) in large part because the specter of sexual abuse and victimization poisons progressive initiatives. (506) Danish policies, as well as Danish personal assistants themselves, although highly attentive to risks of sexual abuse, (507) creatively foster sexual possibilities for persons with disabilities. Explanations for the differences between these two countries are multiple, but particularly important is the fact that Danish social workers and caretakers may train to become "sexual advisers" who "assist people with disabilities perform activities like masturbate, have sex with a partner, or purchase sexual services from a sex worker." (508) These advisers undergo specialized training to assist not only persons with disabilities, but also caretakers and group home administrators. (509) We rehearse some of the ways Danish sexual advisers help persons with disabilities masturbate, have sex, and seek out commercial sexual services. These modes of assistance, carefully chronicled by Kulick and Rydstrom, undoubtedly enhance sexual autonomy of persons with severe disabilities (if sexual autonomy is redefined as the capability to codetermine sexual relations). And while Kulick and Rydstrom's field site is not the United States, some of the practices they observe could and should be integrated into United States state and group home policies regarding the sexuality of persons with disabilities. (510)
i. Facilitating Masturbation
We cite the following anecdote from Kulick and Rydstrom in full, as it so aptly captures how assistance with masturbation may facilitate sexual autonomy for persons with significant intellectual disabilities:
One particularly inventive solution to a seemingly unmanageable problem involved a young man with intellectual impairments in Denmark who insisted on masturbating at the edge of a highway. Every day this young man managed to elude staff members at his group home, turning up by the side of the highway and prompting near accidents and outraged calls to the local police. Desperate, the staff called in a sexual advisor for advice. The woman who came to help managed to figure out that what the young man found exciting was the sound of traffic. At her suggestion, the staff recorded a video of the highway at the site where the young man liked to stand, and they gave that video to him, telling him that whenever he felt like looking at cars and touching himself, he could do so--in his room, with the sound up and the door closed. Problem solved. (511)
What is ethically noteworthy about this incident is not that this young man can now masturbate free from the danger of oncoming traffic. Rather, it is noteworthy that the solution to this problem was promotional, not punitive, of the man's sexual autonomy. By recording the sounds of traffic instead of, say, unilaterally attempting to re-circuit the man's desires toward more hetero-palatable materials, the group home staff permitted and encouraged the man to codetermine the contours of his sexuality.
Kulick and Rydstrom also recount the case of Helle, a young woman in a group home who is nonverbal, suffers cerebral palsy, and uses a mechanism akin to a message board to communicate (thus Helle shares some classificatory similarities with L.K., but it is unclear if or to what extent she is intellectually impaired). (512) A sexual advisor drafted a plan of action for Helle's assistants in order to help Helle masturbate. (513) The plan of action details how Helle should be laid on the bed and where mirrors and pillows should be placed. (514) The document directs assistants (although assistants are not mandated to facilitate sex for clients (515)) to "place the sex aid on [Helle's] privates," and to ask Helle for how long she would like to "lie alone." When Helle finishes masturbating, the assistant is to wash the sex aid and make sure Helle is content. (516)
In Helle's case, as in the case with the young man masturbating to traffic, sexual advisers and clients' assistants collaborated with each other and with their patients to enable sexuality and sexual autonomy. The plan of action for Helle was codetermined by Helle, and practices of sexual codetermination themselves recursively strengthen the capability of (sexual) codetermination: (517) the sexual advisor "had long conversations with Helle to determine what kind of sex aid she wanted, and she helped Helle try out several before they settled on the one Helle liked best." (518)
Figuring out how to facilitate the autoerotic lives of such persons with intellectual and/or physical disabilities evidently takes time, collaboration, and creativity, but it does not require seismic change. By approaching persons with disabilities as presumptively sexual, and presumptively capable of sexual autonomy, advisors and assistants make possible and then encourage their erotic flourishing.
II. Facilitating Sex
Facilitating sex for persons with disabilities is not altogether different from facilitating masturbation, excepting of course the significant but generally surmountable problem of gauging wantedness or unwantedness of all sexual partners. (519)
Kulick and Rydstrom tell the story of Marianne and Steen. (520) Residing in separate group homes, they became a romantic couple after meeting in an activity center. (521) Steen is nonverbal, "spastic," autistic, and paralyzed from the neck down. (522) Like Helle and L.K., Steen uses a message board to communicate to his assistants and group home staff. Marianne is intellectually disabled, deaf, and "nearly blind." (523)
For Marianne and Steen to share intimacy and sex required great effort on the part of their assistants and group home social workers. Social workers collaborate with each other, rearranging schedules, coordinating transportation, and delegating supervisory responsibilities. (524) They also prepare rooms, beds, pillows--as well as Steen's body-in such a way that the couple may have and enjoy sex. (525) Assistants constantly consult Marianne and Steen to make sure everything is alright. (526)
Evidently, facilitating sex for persons with significant disabilities requires more than assisting the sex act itself. Preparations must be made beforehand, and evaluations of wantedness recurring. In Danish group homes visited by Kulick, staff organized role-playing activities and discussion groups for persons with disabilities in order to familiarize them with modes of intimate communication and negotiation, to explain boundaries of permissible social/sexual behavior, to help them cope with the rejection of a love interest, and so forth. (527) These sessions are exemplary in their promotion of sexual autonomy, designed to enhance disabled persons' capability to codetermine their sexual relations.
iii. Facilitating the Purchase of Sexual Services
The sexual facilitation we described in the above two subsections is publicly funded. (528) But sexual services can be and are purchased privately as well, directly by persons with disabilities. (529)
Kulick and Rydstrom repeatedly emphasize in their monograph that the population of persons with disabilities who directly purchase sexual services makes up a "tiny fragment" of all disabled people. (530) The authors suggest that such services receive disproportionate media and academic attention, reflecting a prejudiced presumption that the only way persons with significant disabilities could have sex is if they paid for it. This is untrue--and beneath the surface of such doxa are the untenable presumptions that commercial sex is definitionally devoid of intimacy and exploitative. (531) Nonetheless, the private purchasing of sexual services occurs, and when done right, fosters the sexual autonomy of persons with disabilities while also protecting the rights and bodily integrity of sex workers, sexual assistants, and disabled persons themselves. (532)
"The private purchase of sexual services" is not simply euphemistic for hiring a sex worker; it encompasses a wide variety of activities. The sorts of sexual services available for private purchase in Denmark are identical to those sometimes available in group homes: for example, hiring assistants to help with masturbation or to help arrange sex between partners. (533) Handisex is a Danish organization "which puts adults with disabilities into contact with helpers who will assist them with sex without actually having sex with them." (534) Nor is it just men who purchase sexual services from women, despite popular assumptions to the contrary. Women with disabilities also purchase services to facilitate their masturbation and sexual activity, and they sometimes hire sex workers. (535)
If they wish to pay for sex directly, persons with disabilities may also need help finding sex workers willing to meet persons with disabilities; (536) combing through websites and newspaper advertisements for such escorts; locating brothels that are accessible; (537) and navigating what can often be complicated and detailed menus of services and prices. (538) Particularly for persons who are nonverbal and/or intellectually disabled, caretakers are often needed as "translators" for hired sex workers, since caretakers are more familiar with their patients' communication patterns and better suited to interpret the meanings of patients' gestures, sounds, and so forth. (539) In addition, persons with significant intellectual disabilities and/or mobility limitations may need to be bathed in advance of a sexual encounter, and their rooms properly prepared. (540)
The private purchasing of sexual services, including the purchase of sex, provides some persons with disabilities opportunities for sexual pleasure that might otherwise be nonexistent or unduly difficult to obtain. (541) Just as importantly, though, from the perspective of sexual autonomy, these sorts of paid-for sexual experiences can help boost the confidence of persons with disabilities; they can help persons with disabilities recognize themselves not only as sexual beings but also as capable of successfully "having sex," whether or not such sex is penetrative. (542) The purchase of sexual services allows one paraplegic man, as Kulick and Rydstrom put it, "the opportunity to engage with others in ways that extend his capacities." (543) Mark O'Brien, famed poet and journalist paralyzed from polio, writes of seeing a sex surrogate: "I knew I could change my perception of myself as a bumbling, indecisive clod, not just by having sex with someone, but by taking charge of my life and trusting myself enough to make decisions." (544) These kinds of experiences expand disabled persons' erotic repertoire and, more generally, invite them to participate in navigating their life trajectories.
Some critics express concern that permitting/facilitating the purchase of sexual services may further segregate disabled persons from society by removing them from the noncommercial marketplace of dating, intimacy, and love. (545) Yet there is no necessary reason commercial sex (or intimacy) and noncommercial intimacy (and sex) must be mutually exclusive.
Others express concern that commercial sex degrades sex workers (oftentimes but not always women) and their clients (oftentimes but not always men), and subordinates women. (546) Yet there is no logical reason sexual services are any more or less degrading than the host of "bodily services"--often exhausting, often involving fluids and excretions--provided by compensated caretakers for disabled persons. (547) We suspect that the concern over degradation and subordination masks a moralistic opprobrium to sex for money. (548)
We offer a last note on sexual assistance, sex work, and relationally reconccived sexual autonomy. Sex workers hired by disabled persons, as well as disabled persons themselves, attest that their "sex" often looks much different than able-bodied persons might assume. (549) This sex is not always penetrative, genitally directed, or orgasm-centered. (550) "Sex" might be about touching bodies, extended physical contact, eroticizing and stimulating non-genital body parts, or even eroticizing wheelchairs (551) and amputated limbs. (552) One sex worker reports that for her paraplegic, impotent male clients, "the sexual sessions these men pay for consist mostly of conversation and the man licking her genitals." (553) Much disabled sex manifests what queer theory has sought from its inception--a radical reorganizing of what sex and sexuality (and therefore sexual autonomy) are and might be. (554)
Kulick and Rydstrom conceive of these modes of erotic facilitation--for masturbation, sex, and sexual services--as "ethical practices of awareness, engagement, and justice." (555) This language sounds highfalutin for, say, fellating someone for a fee. But clearly sexual assistance for persons with disabilities entails more than simply enabling transactional, commercial sex. Our brief for sexual autonomy presupposes neither that humans are innately sexual nor that sex is necessarily special. For many people, though, disabled and not, sex, sexual pleasure, and intimacy make for a more complete, flourishing life. Because sex is or can be "interactional activity that develops and enriches social relationships," (556) there is a recursive quality to sexual autonomy--opportunities for co-determined sex and intimacy are themselves manifestations of sexual autonomy, but such opportunities also cultivate persons' capabilities for sexually autonomous actions.
From the perspective of the Capabilities Approach, and from the normative presumption of sexual autonomy as a central capability, accommodating sex for persons with disabilities-by broadening access, improving sexuality education, and facilitating sex practices--is "ethically superior" to inaction (and thus to extant social/sexual arrangements). (557)
We advocate for the public funding of such forms of sexual assistance, at least to a minimum threshold, so that sexual autonomy is a right for many and not a privilege for the few. (558)
CONCLUSION: THE ORDINARINESS OF SEXUAL AUTONOMY
A feminist, relationally reconstructed sexual autonomy defined as the capability to codetermine sexual relations rejects sexual autonomy as merely a synonym for sexual consent. As a human capability, and not simply human choice, sexual autonomy so conceived encourages us to examine not only first person present active (or passive) consent--the preoccupations of Rubenfeld's and Spindelman's otherwise opposed critiques (559)--but also institutions, policies, and norms that foster or impede erotic creativity, co- participation, and flourishing. A panoramic perspective allows us to see that extant sexual regulations (like, say, some age of consent statutes, (560) or some statutory determinations of mental incapacity or physical helplessness, (561) and not just predatory persons, depress sexual autonomy. L.K. and those similarly situated need no longer anchor sexual autonomy as its constitutive outside (a la Stephen Schulhofer (562) and Gerald Dworkin, (563) but might instead be afforded a shot at erotic possibility. Our version of sexual autonomy--as dynamic, aspirational, achieved, and relational rather than binary and keyed to a rationality threshold--readmits certain subjects (like, say, some teenagers and persons with disabilities) historically ejected from its ambit. (564)
Once the reduction of sexual autonomy to sexual consent is refused, we can dispense with (or at least deprioritize) that equation's characterological corollary: either/or classificatory determinations of capacity. In the case of disability (and disability as a case for sexual autonomy reconstructed writ large), sexual autonomy cautions against widening the statutory net to render larger disabled populations ineligible for sex. Instead, we have suggested a more ecological approach keyed to fostering sexual capability: the replacement of force and nonconsent requirements of sexual assault law with an affirmative consent standard; proscriptions against sex in heretofore unregulated relations of dependence (like a spouse's intimate partner, e.g., Richard Fourtin); sexual accommodations in the form of expanded access (material and discursive) and comprehensive, feminist-inflected sexuality education; and facilitation of masturbation, sex, and the purchase of sexual services. (565)
We conclude on a final note that our defense of sexual autonomy is, for the most part, a claim for the ordinariness, not the extraordinariness, of sex. (566) "It is important not to dramatize sex too much." (567) Persons with disabilities receive publicly funded attendant care. Why should they not receive publicly funded sexual assistance? (568) The Active difference between washing genitals and rubbing genitals is the presence and absence of patients' sexual desire. (569) Our national proscription against the latter and permission of the former singles out sexual desire as especially unworthy, because undignified, of state assistance. We accommodate--on paper if not in practice (570)--disabled persons' heath, employment, housing and transportation. Why not accommodate sex? Why not cultivate sexual autonomy, the capability to codetermine sexual relations, more broadly and more deeply? Why not make sex a little more ordinary?
Appendix: Connecticut Appellate Court Sexual Assault Cases, 2010-2015
The following tables overview data collected from a review of 2010-2015 Connecticut Appellate Court sexual assault cases. Cases were extracted from a LexisNexis search on March 1, 2015. An initial search yielded 214 unique cases heard between January' 1, 2010 and March 1, 2015, all of which contained the phrase "sexual assault." Of these, 37 appeals referenced sexual assault but sexual assault was immaterial to the issue of law--these cases have been excluded from analysis. The remaining cases (175) were coded and analyzed.
Table A.1: Case Description # % Variable Notes Sexual assault 175 N/A Includes all cases involving one or more charges of sexual assault. Unique victims 205 N/A 9.1% of cases involved multiple victims. Case type # % Variable Notes State of CT v. Defendant 132 75.4% "Appellant v. Appellant v. Commissioner Commissioner of of Correction 39 22.3% Correction" refers Other 4 2.3% to cases involving an appellate plea for a writ of habeas corpus. # of Charges # % Variable Notes Single 14 8.0% Not all charges Multiple 161 92.0% under "Multiple" are sexual assault Specific Charges Involved # % Variable Notes Sexual assault in the 1st degree 123 70.3% Includes aggravated Sexual assault in the 2nd degree 42 24.0% or attempt to Sexual assault in the 3rd degree 23 13.1% commit. The category Sexual assault in the 4th degree 31 17.7% "Other charges " Sexual assault in a spousal/ includes all non- cohabiting relationship 6 3.4% sexual assault Risk of injury to a child 109 62.3% charges, e.g., Sexual assault, degree not burglary, specified 7 0.04% kidnapping, Other charges 81 46.3% possession of child pornography, etc. # Victims # % Variable Notes Single 159 90.9% Multiple 16 9.1% 2 11 6.3% 3 3 1.7% >3 2 1.1% Table A.2: Ages of Perpetrators and Victims Age of Perpetrator # % Variable Notes Adult (18+) 35 20.0% Perpetrators whose Minor (<18) 2 1.1% age is "not Not specified 138 78.9% specified" in the TOTAL 175 100.0% appeal are likely over 18, given the other facts of these cases. Age of Victim Adult (18+) 4 2.0% Victims whose age is Minor (<18) 138 67.3% "not specified " in Not specified 60 29.3% the appeal are Police officer posing as minor 3 1.5% likely over 18, TOTAL 205 100.0% given the other facts of these cases. Table A.3: Relationship between Perpetrators and Victims (571) Relationship Classification # % Variable Notes Intimate Relationship 15 7.3% Spouse 6 2.9% "Spouse" includes Former Spouse 4 2.0% common-law spouse. Partner (excl. spouse) 2 1.0% Former spouse Former Partner (excl. spouse) 3 1.5% includes spouses that are separated, regardless of formal divorce. Familial or Semi-Familial Relationship 86 42.0% Father (***) 28 13.7% "Father" includes Uncle (*) 11 5.4% biological and Grandfather (***) 7 3.4% adoptive fathers. Other family member (*) 5 2.4% Uncle includes Other legal guardian (***) 1 0.5% uncles by marriage Stepfather (***) 9 4.4% and aunts' live-in Mother's boyfriend/intimate boyfriends. partner 24 11.7% Grandfather includes step-grandfathers and grandmothers 'live-in boyfriends. Caretaking Relationship 8 3.9% Babysitter (*) 2 1.0% "Other caretaker" Teacher or Coach (*) 3 1.5% includes: a child Other Caretaker (*) 3 1.5% development caretaker in a junior residential treatment center where the victim was a resident: a nurse's assistant at a hospital where the victim was a patient; and a dentist of whom the victim was a patient. Other Relationship 32 15.6% Coworker or Employer (*) 4 2.0% "Other known adult" Family friend 8 3.9% includes any adult Parent of a friend 3 1.5% with whom a child is Friend of a friend 4 2.0% familiar, but who is Other personal acquaintance 8 3.9% not a family friend Other known adult 5 2.4% (e.g., a neighbor). No Prior Relationship 21 10.2% Client (for sex workers) 3 1.5% Stranger 15 7.3% Police Officer (posing as teen girl online) 3 1.5% Relationship Not Specified 44 21.5% TOTAL 205 100.0%
JOSEPH J. FISCHEL, Assistant Professor, Women's, Gender, & Sexuality Studies, Yale University. Many thanks to Shelley Fischel, Katherine Franke, Diana Kim, Luke Maher, Matt Shafer, and Igor Souza.
& HILARY R. O'CONNELL, Research Analyst, AccessMatters (formerly Family Planning Council), Philadelphia, PA; B.A., Yale University. I would like to thank Stephen, David, and Virginia Adams O'Connell, Maureen McCarthy, and Joshua Stein.
The Article has greatly benefitted from presentations at the Women's, Gender, and Sexuality Studies Working Group at Yale University, the Topics in Legal Theory Panel of the 2015 Midwestern Political Science Association Conference, the Commercial Sex, Comparatively Panel of the 2015 American Political Science Association Conference, and the Center for Gender and Sexuality Law Workshop at Columbia University. We would like to dedicate our Article to the late disability rights activist and comedian Stella Young. Hilarious, incisive, and right, Young is not our inspiration. See Young, infra note 440.
(1) State v. Fourtin, 52 A.3d 674 (Conn. 2012).
(2) Id. at 679-80. The trial jury found Fourtin guilty of attempt to commit sexual assault in the second degree, Conn. Gen. Stat. [section][section] 53a 71 (a)(3), 49(a)(2) (2015), and sexual assault in the fourth degree, Conn. Gen. Stat. [section] 53a-73a(a)(1)(C) (2015). As a result of the Fourtin decision, the Connecticut General Assembly revised Connecticut's sexual assault statutes. See infra notes 315-322 and accompanying text.
(3) See Daniel Tepfer, Supreme Court Sets Accused Rapist Free, Conn. Post, Oct. 1,2012, http://www.ctpost. com/news/article/Supreme-Court-sets-accused-rapist-free-3910077.php [http://perma.cc/5432-RJBP].
(4) Fourtin, 52 A.3d at 677.
(6) Id. at 676.
(7) Id. at 701 (Norcott, J., dissenting) (internal citation omitted).
(8) See infra notes 299-306 and accompanying text.
(9) See infra notes 299-301 and accompanying text.
(10) See infra notes 288-293 and accompanying text.
(11) Fourtin, 52 A.3d at 683, 687; see also infra note 289.
(12) See infra Part III.C.
(13) See, e.g., Fiona Kumari Campbell, Contours of Ableism: The Production of Disability and Abledness 6 (2009) ("Central to regimes of ableism are two core elements that feature irrespective of its localised enactment, namely the notion of the normative (and normate individual) and the enforcement of a constitutional divide between perfected naturalised humanity and the aberrant, the unthinkable, quasi- human hybrid and therefore non-human."); Michael Gill, Already Doing It: Intellectual Disability and Sexual Agency 106 (2015) ("Sexual ableism is the system of imbuing sexuality with determinations of qualification to be sexual based on criteria of ability, intellect, morality, physicality, appearance, age, race, social acceptability, and gender conformity."); Dan Goodley, Dis/ability Studies: Theorising Disablism and Ableism 21 (2014) ("Ableis[m] ... privileges able-bodiedness; promotes smooth forms of personhood and smooth health; creates space fit for normative citizens; encourages an institutional bias towards autonomous, independent bodies; and lends support to economic and material dependence on neoliberal and hyper-capitalist forms of production.") (emphasis added). Our reconstruction of sexual autonomy, we hope, enlarges the eligibility of its membership. An "institutional bias towards" autonomy might then promote, rather than prevent, persons with disabilities' flourishing.
(14) See, e.g., Robert McRuer, Disabling Sex: Notes for a Crip Theory of Sexuality, 17 GLQ 107, 113-14 (2011) [herinafter McRuer, Disabling Sex] (cautioning that disability may also be selectively championed, but for potentially chauvinist purposes); Tom Shakespeare, Disabled Sexuality: Toward Rights and Recognition, 18 Sexuality & Disability 159, 164-65 (2000) (cautioning against partitioning and/or prioritizing disability sexual politics from other disability rights activism).
(15) Our understanding of sexual autonomy as a capability, and not merely a noninterference right, derives from Martha Nussbaum's extension of Amartya Sen's Capabilities Approach. See infra note 25 and accompanying text and Part II.D; see also Alexander A. Boni-Saenz, Sexuality and Incapacity, 76 Ohio St. L.J. 1201 (2015). Our reconstruction of sexual autonomy aligns with Boni-Saenz's definition and defense of "sexual capability." Id. at 1224-25. Although first positing sexual capability as "an alternative to sexual autonomy," id. at 1224, Boni-Saenz later suggests the former is elemental to the latter once relationally reconceived. Id. at 1227, 1253.
(16) Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 Yale L.J. 1372 (2013) [hereinafter Rubenfeld, Riddle]', Marc Spindelman, Sexuality's Law, 24 Colum. J. Gender & L. 87 (2013) [hereinafter Spindelman, Law],
(17) Rubenfeld, Riddle, supra note 16, at 1418-21; Spindelman, Law, supra note 16, at 173-78. It should also be noted that while both authors assume "sexual autonomy" to be a triumph of modern rape law reform, the phrase never appears in state codes.
(18) See infra notes 37 48 and accompanying text.
(19) See infra notes 49-66 and accompanying text.
(20) Rubenfeld, Riddle, supra note 16, at 1380-81, 1403 ("[A] rape law genuinely committed to sexual autonomy would reject the force requirement, defining rape solely in terms of consent."); Spindelman, Law, supra note 16, at 173-79. Our phrase "first person present active (or passive) consent" captures both the notion of affirmative consent (e.g., "yes, let's do this") and acquiescence (the consent standard of many criminal sexual assault statutes). Our reference to person, tense, and voice recalls just how much current thinking about sex and sexual assault is really thinking about speech acts or their absence. Speech acts, this Article argues, may express sexual autonomy; but speech acts do not constitute sexual autonomy.
(21) See, e.g., Consent is Sexy, http://www.consentissexy.net [http://perma.cc/X4VU-PX9F] (last visited Aug. 5, 2015); see also Joseph J. Fischel, Sex and Harm in the Age of Consent (2016) (providing a broader critique against the consent paradigm of late modern sexuality).
(22) See infra notes 135-150 and accompanying text.
(23) From Kant's oeuvre, our interlocution presses most heavily on Immanuel Kant, Groundwork of the Metaphysics of Morals (Mary Gregor & Jens Timmerman eds., 2012) [hereinafter Kant, Groundwork], as well as on secondary political theoretic sources. See infra Part II.A.
(24) Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 112 (1998). See infra Part II.B.
(25) See generally Jennifer Nedelsky, Law's Relations: A Relational Theory of Self, Autonomy, and Law (2011). From Nussbaum's oeuvre, our interlocution presses most heavily on Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (2007) [hereinafter Nussbaum, Frontiers], and Martha Nussbaum, The Capabilities of People with Cognitive Disabilities, in Cognitive Disability and its Challenge to Moral Philosophy 74, 75 (Eva Feder Kittay & Licia Carlson eds., 2010) [hereinafter Nussbaum, Capabilities].
(26) See infra notes 302-306 and accompanying text.
(27) See Ani B. Satz, Disability, Vulnerability, and the Limits of Antidiscrimination, 83 Wash. L. Rev. 513, 530 (2008) ("Vulnerability to disability (and other impairments) is universal and constant; we are all one curb step away from disability."); Tobin Siebers, A Sexual Culture for Disabled People, in Sex and Disability 37, 52 (Robert McRuer & Anna Mollow eds., 2012) ("Because every citizen will become sooner or later a disabled citizen, the struggle of people with disabilities for sexual rights belongs to everyone."); see also Don Kuljck & Jens Rydstrom, Loneliness and its Opposite: Sex, Disability, and the Ethics of Engagement 172 (2015) ("[I]t isn't just that everybody is a mere car accident ... away from disability.... [I]t's that disability--the structure that comprises both absence and excess--is at the center of everyone's existence."). Kulick and Rydstrom arrive at this point via Anna Mollow, who figures sex itself as disability, a fantasy structure sustained through the subject's desire for disintegration and rupture. Anna Mollow, Is Sex Disability? Queer Theory and the Disability Drive, in Sex and Disability, supra, at 285, 310 ("[A]ll sex is incurably, and perhaps desirably, disabled.").
(28) See generally Kulick & Rydstrom, supra note 27. Kulick and Rydstrom likewise apply Nussbaum's Capabilities Approach to disability and sexual flourishing. Id. at 277-95.
(29) A version of Part I appears in Fischel, supra note 21.
(30) See, e.g., Know Your IX: Empowering Students to Stop Sexual Violence, http://www.knowyourix. org [http://perma.cc/5QJU-ATCS] (last visited Aug. 5, 2015); Ending Campus Sexual Assault Toolkit, AAUW, http://www.aauw.org/resource/campus-sexual-assault-tool-kit/ [http://perma.cc/JCQ4-2VB4] (last visited Dec. 3, 2015).
(31) See, e.g., Gopal Ratnam, The U.S. Military's Continuing Sexual Assault Problem, Foreign Pol'y, Dec. 4, 2014, http://foreignpolicy.com/2014/12/04/the-u-s-militarys-continuing-sexual- assault-problem [http://perma. cc/BVT5-3G2U].
(32) See, e.g., Aki Peretz & Tara Mailer, The Islamic State of Sexual Violence, Foreign Pol'y, Sep. 16, 2014, http://foreignpolicy.com/2014/09/16/the-islamic-state-of-sexual-violence [http://perma.cc/5C9K-43UQ]. For an important corrective to dominant, sensational narratives of rape in conflict areas as only or even primarily ethnically terroristic, see Kerry F. Crawford et al., Wartime sexual violence is not just a 'weapon of war, 'Wash. Post, Sept. 24, 2014, http://www.washingtonpost.com/blogs/monkey- cage/wp/2014/09/24/wartime-sexualviolence-is-not- justa-weapon-of-war [http://perma.cc/K5XQ-RNN8].
(33) See, e.g., Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014) (recognizing protected religious beliefs of for profit, closely-held corporations that exempt them from federal law; in this instance, a mandate for employers to fund certain forms of contraception for female employees under the Affordable Care Act): Erik Eckholm, Access to Abortion Falling as States Pass Restrictions, N.Y. Times, Jan. 3, 2014, http://www.nytimes.com/ 2014/01/04/us/women-losing-access-to-abortion-as-opponents-gain-ground-in-state- legislatures.html [http:// perma.cc/53CH-V9M2].
(34) For earlier legal theoretic advocacy of sexual autonomy (often equated to an affirmative consent requirement) as a successor principle of rape law, see, for example, Schulhofer, supra note 24; Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. Cal. L. Rev. Ill (1988); Lani Anne Remick, Read Her Lips: An Argument for a Verbal Consent Standard in Rape, 141 U. Pa. L. Rev. 1103 (1993).
(35) There is an affinity between Rubenfeld's criticism of sexual autonomy as laced with the "defilement logic of traditional rape law" through rape-by-deception anomalies (spousal impersonation and medical misrepresentation), and (post hoc) feminist criticism of seduction laws as premised on women's alleged fragility and "feminine virtue" (sexual restraint). See Rubenfeld, Riddle, supra note 16, at 1401. For a rehearsal of feminist responses to, and a revisionist account of, seduction laws, see generally Jane E. Larson, " Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374(1993).
(36) There is an affinity between Spindelman's criticism of sexual autonomy as authorizing unfettered sexual conduct, injuries notwithstanding, and progressive criticism of Lochner-era Court rulings constitutionalizing unfettered labor contracts, exploitation notwithstanding. See Spindelman, Law, supra note 16, at 173; see also Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) ("The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."); infra notes 102-106 and accompanying text.
(37) Rubenfeld, Riddle, supra note 16, at 1392-94.
(38) See Susan Caringella, Addressing Rape Reform in Law and Practice 13 (2009).
(39) Id. at 14-15.
(40) See generally Susan Estrich, Real Rape (1988); Catharine A. MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence, 8 Signs 635, 649 (1983).
Having defined rape in male sexual terms, the law's problem, which becomes the victim's problem, is distinguishing rape from sex in specific cases. The law does this by adjudicating the level of acceptable force starting just above the level set by what is seen as normal male sexual behavior, rather than at the victim's, or women's, point of violation.
(41) However, initial 1970s liberal/feminist reforms to United States rape law sought to replace or relax the resistance requirement in favor of a force requirement, precisely to shift attention away from the behavior of the victim and onto the conduct of the perpetrator. See Caringella, supra note 38, at 14-15. For accounts of reforms to modern rape law (and their shortcomings), see id. at 12-27; Rose Corrigan, Up Against a Wall: Rape Reform and the Failure of Success 21 (2014); Schulhofer, supra note 24, at 17-46.
(42) Rubenfeld, Riddle, supra note 16, at 1375-79.
(43) Id. at 1402-04, 1416.
(44) Id. at 1379.
(45) Id. at 1416; see also Jed Rubenfeld, Rape-by-Deception--A Response, 123 Yale L.J. Online 389, 391 (2013), http://www.yalelawjournal.org/forum/rape-by-deceptiona-response [http://perma.cc/S7CB-CBA6] [hereinafter Rubenfeld, Response].
(46) Rubenfeld, Riddle, supra note 16, at 1414; Rubenfeld, Response, supra note 45, at 391-92, 402-03; see infra Part I.D.1.
(47) Rubenfeld, Response, supra note 45, at 390, 403.
(48) Rubenfeld, Riddle, supra note 16, at 1437-38. For the peculiar consequences of Rubenfeld's sole consent exception, see Tom Dougherty, No Way Around Consent: A Reply to Rubenfeld on "Rape-by-Deception," 123 Yale L.J. Online 321, 326-27 (2013), http://yalelawjournal.org/forum/no-way- around-consent-a-replyto-rubenfeld- onrape-by-deception [http://perma.ee/H2RK-7RZG], ("[S]uppose Jones is willing to engage in sadomasochistic sex with Smith only if Smith has gone to Yale. Smith lies that he has gone to Yale.... It is hard to believe that the sex is innocent up until the point at which Jones requests that Smith bind her with rope, at which point the encounter suddenly becomes rape.").
(49) Spindelman, Law, supra note 16, at 227.
(50) Id. at 98-121.
(51) Id. at 98-212.
(52) Id. at 98-212. See also Marc Spindelman, Review Essay: Sexual Freedoms Shadows, 23 Yale J.L. & Feminism 179 (2011).
(53) Spindelman, Law, supra note 16, at 102.
(54) See id. at 101-07.
(55) Id. at 105.
(56) Id. at 117.
(57) Id. at 112.
(58) Id. at 139-40, 184-85, 207-08, 214-15.
(59) Spindelman, Law, supra note 16, at 172-73, 187-88, 192.
(60) Id. at 157-92; see also Richard D. Mohr, Gays/Justice: A Study of Ethics, Society, and Law 219-22 (1988).
(61) Spindelman, Law, supra note 16, at 189 ("Unlike the right to sexual autonomy, which figures the boundaries of the autonomous self as fully self-managed (even to the very end), the phenomenology of sex recognizes they need not be, and may be anything but.").
(62) Id. at 185. This predicate, however, is dubious. Many autonomy theorists explicitly reject that autonomy vindicates self-sacrifice (let alone self-sacrifice motored by belief as opposed to second-order calculations [such as signing a Do Not Resuscitate order out of concerns for one's family's well-being]). See, e.g, Gerald Dworkin, The Theory and Practice of Autonomy 20, 128 (1997) (speculating that his conception of autonomy may justify voluntary slavery, but only if such servitude is based on the "second-order capacity of persons to reflect critically upon their first order preferences"); John Stuart Mill, On Liberty 87 (2002) ("But by selling himself for a slave he abdicates his liberty.... The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom.").
(63) Spindelman, Law, supra note 16, at 186.
(64) Id. at 97-98, 174-75.
(65) Id. at 184-85.
(66) Id. at 88, 223-27. More precisely, Spindelman argues that the de jure consent gravamen of sexual assault law combined with the de facto material reality of the ideology of sexual freedom alchemizes and authorizes sexual violence by and against gay men.
(67) See supra note 46.
(68) Spindelman, Law, supra note 16, at 88-89, 118, 173-78 (recognizing statutes for prosecuting HIV transmission, but complaining they are underutilized by gay men).
(69) Rubenfeld, Response, supra note 45.
(70) Id. at 391-92, 402; Rubenfeld, Riddle, supra note 16, at 1414, 1435, 1441- 42.
(71) On the "erotic innocence" of the modern construction of childhood, see, e.g., James R. Kincaid, Erotic Innocence: The Culture of Child Molesting (1998); on adolescence as a construction differentially gendered and hyper-sexualized, see Kent Baxter, The Modern Age; Turn-of-the-Century American Culture and the Invention of Adolescence (2008); Nancy Lesko, Act Your Age! A Cultural Construction of Adolescence (2012).
(72) Rubenfeld, Riddle, supra note 16, at 1414; Rubenfeld, Response, supra note 45, at 391-92, 402.
(73) See Rubenfeld, Riddle, supra note 16, at 1432-35.
(74) See Michelle Oberman, Girls in the Masters House: Of Protection, Patriarchy and the Potential for Using the Master's Tools to Reconfigure Statutory Rape Law, 50 DePaul L. Rev. 800, 809 (2001).
(75) See Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390 (2003).
(76) Mat 390-91.
(77) See, e.g., Julie Bosnian, Teenager's Jailing Brings a Call to Fix Sex Offender Registries, N.Y. Times, Jul. 5, 2015, at Al, http://www.nytimes.com/2015/07/05/us/teenagers-jailing- brings-a-call-to-fix- sexoffenderregistries.html?_r=0 [http://perma.cc/Y5UA-8DTJ].
(78) For a provocative counterclaim, see Judith Levine, Harmful to Minors: The Perils of Protecting Children from Sex 68-89 (2002) (defending a thirteen-year-old girl's sexual relationship with her twenty-one-year-old boyfriend, and rejecting statutory rape law as a suppressant of young female desire); see also infra notes 191-197 and accompanying text.
(79) In California, for example, all sex under eighteen is a criminal offense (albeit graduated by age difference), unless the partners are married. Cal. Penal Code [section] 261.5(a) (West 2015)
(80) See generally Nedelsky, supra note 25; see also infra Part II.C; Part II.D. 1.
(81) Rubenfeld, Riddle, supra note 16, at 1435.
(82) Id. at 1435. But see Dougherty, supra note 48.
(83) See infra notes 264-269 and accompanying text; infra notes 415 417 and accompanying text.
(84) Rubenfeld, Riddle, supra note 16, at 1441-42.
(85) Id. at 1441-42.
(86) See id. at 1441.
(87) Id. at 1441; see also id. at 1376 ("Many--perhaps most of us--don't think rape-by-deception is rape at all. Neither, as a rule, do our courts. The problem is that we ought to think it is rape, and courts ought to so hold, given what we say rape is.").
(88) Rubenfeld argues that his excision of sexual autonomy from rape law would nullify Lawrence v. Texas, 539 U.S. 558 (2003). This is mistaken. Just because John may permissibly infringe my sexual autonomy does not mean the State can do so. John might refuse Joe's entry into his home because Joe is Jewish. The state cannot likewise refuse Joe's entry into a public university. See Corey Rayburn Yung, Rape Law Fundamentals, 27 Yale J.L. & Feminism 1,46 (2015); id. at 30-31 ("The right to sexual autonomy, as conceived of in Lawrence, is only a protection from government punishment of consensual sexual activity. Private actors who violate other people's sexual autonomy do not abridge that right under current law.").
It is not that Lawrence is nullified by Rubenfeld's excision of sexual autonomy from rape law. Rather, once sexual autonomy is excised, "morality" must clean up the questionable sex left outstanding, so Lawrence must be liquefied. Rubenfeld pretends that the nullification of Lawrence is a logical consequence of his critique of sexual autonomy, when in fact it is a normative antecedent.
(89) Lawrence v. Texas, 539 U.S. 558, 571 (2003) (holding state sodomy laws unconstitutional); supra note 88. For an argument extending Lawrence's sexual rights to minors (and thereby proscribing morality as a constitutional basis for the regulation of minor sexual conduct), see Daniel Allender. Applying Lawrence: Teenagers and the Crime Against Nature, 58 Duke L.J. 1825 (2009).
(90) Spindelman, Law, supra note 16, at 227.
(91) Id. at 91-92.
(92) Id. at 138.
(93) Id. at 208-10.
(94) Id. at 129 33, 138-39.
(95) See Trevor Hoppe, From Sickness to Badness: The Criminalization of HIV in Michigan, 101 Soc. Sci. & Med. 139, 140 (2014); Stan J. Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, 18 AIDS & Behav. 997, 1000 (2014).
(96) See Hoppe, supra note 95, at 145-47; Lehman et al., supra note 95, at 999, 1003.
(97) See Kim Shayo Buchanan, When is HIV a Crime? Sexuality, Gender and Consent, 99 Minn. L. Rev. 1231, 1294-1322 (2015); Zita Lazzarini & Robert Klitzman, HIV and the Law: Integrating Law, Policy, and Social Epidemiology, 30 J.L. Med. & Ethics 533, 537-40 (2002); see also Russell K. Robinson, Racing the Closet, 61 Stan. L. Rev. 1463, 1469, 1515-16 (2009). Buchanan argues too that the state's singling out HIV for compelled disclosure is discriminatory and violative of HIV-positive persons' sexual autonomy. Buchanan, supra, at 1328, 1334-38.
(98) See Lehman et al., supra note 95, at 998-99, 1004. Spindelman argues that HIV criminalization laws are ineffective because gay men underutilize them. See Spindelman, Law, supra note 16, at 96-98.
(99) See Serosorting among Gay, Bisexual and Other Men Who Have Sex with Men, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/msmhealth/serosorting.htm [http://perma.cc/9NYA-JWJC] (last visited Jan. 24, 2016) ("Serosorting is a practice some gay, bisexual and other men who have sex with men (MSM) use in an effort to reduce their HIV risk. This means they try to limit unprotected anal sex to partners with the same HIV status as their own."); Pre-Exposure Prophylaxis, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/hiv/prevention/research/prep [http://perma.cc/KT3M-ZRDD] ("Pre-exposure prophylaxis ... is a way for people who do not have HIV ... to prevent HIV infection by taking a pill every day. The pill ... contains two medicines ... that are used in combination with other medicines to treat HIV ... [and] these medicines can work to keep the virus from establishing a permanent infection.").
(100) See generally Angela Perone, From Punitive to Proactive: An Alternative Approach for Responding to HIV Criminalization that Departs from Penalizing Marginalized Communities, 24 Hastings Women's L.J. 363 (2013); UNAIDS, Ending Overly Broad Criminalization of HIV Non- disclosure, Exposure and Transmission: Critical Scientific, Medical and Legal Considerations (2013), http://www.unaids.org/sites/ default/files/media_asset/20130530_Guidance_Ending_Criminalisation_0.pdf [http://perma.cc/ELL7-VGZS]; Sean Strub, Prevention v.s. Prosecution: Creating a Viral Underclass, POZ Blogs (Oct. 18, 2011, 12:55 PM), http://blogs.poz.com/sean/archives/2011/10/prevention_vs_prosec.html [http://perma.cc/F555-TG4L].
(101) See Spindelman, Law, supra note 16, at 186-88, 186-187 n.439, 187 n.40.
(102) Id. at 186-88, 186-187 n.439, 187 n.440.
(103) Id. at 186 n.439.
(105) Id. at 226.
(106) Id. at 98, 221-23.
(107) In the course of writing this Article, the authors realized they might not agree with one another on the legitimate scope of state intervention over adult (and some minor) consensual sexual activity. However, both authors agree that first person present active (or passive) consent is componential of, but not comprehensive for, sexual autonomy. See infra Part IV.
(108) See supra Part I. Or the inverse: is not autonomy "at the center of the justificatory basis for informed consent"? Dworkin, supra note 62, at 101.
(109) Kant, Groundwork, supra note 23, at 41.
(110) Id. at 17-18,41-43.
(111) Id. at 42-43.
(112) Id. at 52 ("[T]he moral and hence categorical imperative says: I ought to act in such or such a way, even if I did not want anything else."); see also Immanuel Kant, Education 96-97 (Annette Churton ed., 1960) [hereinafter Kant, Education] ("Morality is a matter of character.... The first step toward the formation of a good character is to put our passions on one side.").
(113) Kant, Groundwork, supra note 23, at 18.
(114) Id. at 45 46.
(115) Id. at 51-52.
(116) Claire E. Rasmussen, The Autonomous Animal: Self-Governance and the Modern Subject 4-5 (2011) (citing Jean-Jacques Rousseau, Second Discourse on the Origins of Inequality (Donald A. Cress trans., 1992); Jean-Jacques Rousseau, The Social Contract and Other Later Political Writings (Victor Gourevitch ed., 1997)).
(117) Rasmussen, supra note 116, at 5.
(118) Kant, Groundwork, supra note 23, at 57-58; see also Stephen Darwall, The Value of Autonomy and Autonomy of the Will, 116 Ethics 263, 281-82 (2006).
(119) Kant, Groundwork, supra note 23, at 57-58; see also Christine M. Korsgaard, Introduction to Immanuel Kant, Groundwork, supra note 23, at vii, xxvii.
(120) Kant, Groundwork, supra note 23, at 56-57; see also Kant, Education, supra note 112, at 28 ("[The child] must be shown that he can only attain his own ends by allowing others to attain theirs.").
(121) Kant, Groundwork, supra note 23, at 51-52; see also Rasmussen, supra note 116, at 6-7.
(122) Kant, Groundwork, supra note 23, at 45, 52; see also Darwall, supra note 118, at 264.
(123) See Kant, Education, supra note 112, at 20, 77-78, 81; Rasmussen, supra note 116, at 33.
(124) See, e.g., Carlos A. Ball, This is Not Your Father's Autonomy: Lesbian and Gay Rights from a Feminist and Relational Perspective, in Feminist & Queer Legal Theories: Intimate Encounters, Uncomfortable Conversations 289, 293-94 (Martha Fineman et al. eds., 2009) (describing feminist theorists' reclamation of emotions as ingredients for self-reflection and deliberation). But see Darwall, supra note 118, at 264.
(125) See supra notes 118-120 and accompanying text.
(126) Kant, Groundwork, supra note 23, at 49-50.
(127) See Korsgaard, supra note 119, at xxv.
(128) We adopt this distinction from Kathryn Abrams, although she shelves "autonomy" in favor of "agency" and teases apart the two prongs as "self-definition" and "self-direction." Kathryn Abrams, From Autonomy to Agency: Feminist Perspectives on Self-Direction, 40 Wm. & Mary L. Rev. 805, 806, 824 (1999). Autonomy, for Abrams, is a misguided legal and philosophic fiction; "agency" captures better the fact of (gendered) socialization as well as resistive acts to (gendered) socialization. Id. at 823- 24. Under a feminist constructivist register, the two prongs of agency, self-definition and self-direction, interpenetrate. The social constitution of the self partially governs the subject's decisions and choices. Id. at 826. External (asymmetric, gendered) constraints on choice partially govern the subject's conception of self. Id. at 830-31. In both her descriptions, id. at 829-40, and prescriptions, id. at 840-46, Abrams focuses more, as the essay's title might suggest, on agency as "self-direction" (what we have labeled "self-determination") than on agency as self-definition.
(129) Kant, Groundwork, supra note 23, at 62; see also Darwall, supra note 118, at 263; Dworkin, supra note 62, at 5. However, "self-definition" need not be conceived as a process undertaken solely by the self, absent relations and collectives. See Abrams, supra note 128, at 822.
(130) Dworkin, supra note 62, at 30.
(131) Id. at 20.
(132) Kant, Groundwork, supra note 23, at 17-19.
(133) Dworkin, supra note 62, at 62-81.
(134) See Darwall, supra note 118, at 263-64, 284.
(135) Immanuel Kant, Lectures on Ethics 163 (Louis Infield trans., 1930) [hereinafter Kant, Ethics]; see also Raja Halwani, Philosophy of Love, Sex, and Marriage: An Introduction 200-03 (2010): Rubenfeld, Riddle, supra note 16, at 1419.
(136) Kant, Ethics, supra note 135, at 164.
(137) Halwani, supra note 135, at 206-07.
(138) Kant, Ethics, supra note 135, at 164 65.
(139) See Darwall, supra note 118, at 281.
(140) Kant, Ethics, supra note 135, at 163; see also Timothy J. Madigan, The Discarded Lemon: Kant, Prostitution and Respect For Persons, 21 Phil. Now 14 (1998), https://philosophynow.org/issues/21/The_ discarded_Lemon_Kant_prostitution_and_respect_ for persons [http://perma.cc/7CRR-MUEY].
(141) Kant, Ethics, supra note 135, at 165-66. But see Madigan, supra note 140 ("[I]f one decouples Kant's repulsion about sexual acts from his overall contractual emphasis, a strong case can be made in favour of reciprocity in sexual relations, outside of a marriage contract."); see supra note 135 and accompanying text.
(142) Kant, Ethics, supra note 135, at 164 ("Hence it comes that all men and women do their best to make not their human nature but their sex more alluring and direct their activities and lusts entirely toward sex. Human nature is thereby sacrificed to sex."); see also Halwani, supra note 135, at 206-09; Martha C. Nussbaum, Sex and Social Justice 224 (1999) [hereinafter Nussbaum, Sex] ("The [Kantian] idea seems to be that sexual desire and pleasure cause very acute forms of sensation in a person's own body; that these sensations drive out, for a time, all other thoughts, including the thoughts of respect for humanity that are characteristic of the moral attitude to persons.").
(143) Madigan, supra note 140.
(144) Rasmussen, supra note 116, at 29.
(145) Halwani, supra note 135, at 204-05, 209.
(146) Kant, Education, supra note 112, at 117-18; see also Immanuel Kant, Metaphysics of Morals 61-64 (Mary Gregor ed., 1996) [hereinafter Kant, Metaphysics]; Rasmussen, supra note 116, at 32.
(147) Kant, Education, supra note 112, at 118; see also Madigan, supra note 140. But see Kant, Ethics, supra note 135, at 170 (condemning homosexual sex because "the end of humanity in respect of sexuality is to preserve the species without debasing the person"). Kant's non-procreative, mutual-use defense of marital sex combined with his contra naturam view of gay sex leads one to wonder what position Kant might take on same-sex marriage. See generally Matthew C. Altman, Kant on Sex and Marriage: The Implications for the Same-Sex Marriage Debate, 101 Kant-Studien 309 (2011); Lara Denis, Sex and the Virtuous Kantian Agent, in Sex & Ethics 37,45-46 (Raja Halwani ed., 2007) ("In sum, where same-sex marriage is possible, sex within such a marriage seems to be ... in no way incompatible with virtue.").
(148) Kant, Metaphysics, supra note 146, at 61-62.
Sexual union is the reciprocal use that one human being makes of the sexual organs and capacities of another. This is either a natural use (by which procreation of a being of the same kind is possible) or an unnatural use, and unnatural use takes places either with a person of the same sex or with an animal of a nonhuman species. Since such transgression of laws ... do wrong to humanity in our own person, there are no limitations or exceptions whatsoever that can save them from being repudiated completely.
Id. (internal Latin translations omitted).
(149) Rasmussen, supra note 116, at 33.
(150) Rubenfeld rightly points this out, but wrongly levels the same reduction ad absurdum charge at Schulhoferian autonomy. See Rubenfeld, Riddle, supra note 16, at 1419-20; infra II.B.
In fact, "sexual autonomy" is nonsensical even within marriage for Kant: "For the natural use that one sex makes of the other's sexual organs is enjoyment, for which one gives itself up to the other. In this act a human being makes himself into a thing, which conflicts with the right of humanity in his own person. There is only one condition under which this is possible: that while one person is acquired by the other as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality." Kant, Metaphysics, supra note 146, at 62. The non-liquidation of personhood is distinct from its promotion. See also Kant, Ethics, supra note 135, at 167-68; Madigan, supra note 140 ("Marriage, in a sense, allows two individuals to mutually degrade each other, to treat each other as the property of the other--to use each other."); Alan Soble, Sexual Use, in The Philosophy of Sex: Contemporary Readings 259, 278-82 (Alan Soble & Nicholas Power eds., 2008).
(151) See, e.g., Halwani, supra note 135, at 200-25; Nussbaum, Sex, supra note 142, at 224-39; Denis, supra note 147; Madigan supra note 140.
(152) Halwani, supra note 135, at 209.
(153) See Denis, supra note 147.
(154) Id. at 42-46 (citing passages from Kant's oeuvre which suggest that "Kant's moral theory engenders acceptance of and concern for one's animal nature").
(155) See, e.g., Halwani, supra note 135, at 224 ("Kant was right to detect something especially suspicious about sex, leading him to worry about objectification. But Kant exaggerated, and, though we should not underestimate the power of the sexual drive, it can be controlled by reason."); Nussbaum, Sex, supra note 142, at 238-39 ("Denial of autonomy and denial of subjectivity are objectionable if they persist throughout an adult relationship, but as phases in a relationship characterized by mutual regard they can be all right, or even quite wonderful.... [W]e have some reasons by now to doubt Kant's account, according to which the baneful form of use is inherent in sexual desire and activity themselves.").
(156) See, e.g., Denis, supra note 147, at 46 ("A virtuous Kantian agent ... will see her body as an extension and a condition of her agency; she will appreciate her animal nature for its reason-supporting role.").
(157) See supra notes 155-156; for a Kantian-inflected but mostly Aristotelian brief on/for sexual moderation, see Raja Halwani, Sexual Temperance and Intemperance, in Sex & Ethics, supra note 147, at 122, 128 ("[P]eople become slavish by, tersely put, turning their reason into an instrument of their desires. Because they are ruled by their desires, they employ their reason to secure, or try to secure, pleasures. Hence, there is a danger to our health from excessive sexual pursuits.").
(158) See, e.g., Holly Brewer, By Birth or Consent: Children, Law, & the Anglo- American Revolution in Authority 341-43 (2005); Licia Carlson, The Faces of Intellectual Disability: Philosophical Reflections 105-24 (2009) (rehearsing--and critiquing for their overgeneralizations-- dominant philosophical assessments of intellectual disabilities); Rasmussen, supra note 116, at 46 ("Autonomy becomes an exclusive category by denying the political agency of the girl; she lacks autonomy and therefore must be subject to political authority and the management of her body."); Annette Ruth Appell, Accommodating Childhood, 19 Cardozo J.L. & Gender 715, 727 (2013) ("Children are by definition excluded from the club of liberal citizenship because the status of citizen is defined in opposition to childhood as a place of autonomy and agency."); Russell P. Shuttleworth, Disability and Sexuality: Toward a Constructionist Focus on Access in the Inclusion of Disabled People in the Sexual Rights Movement, in Sexual Inequalities & Soc. Just. 174, 184 (Niels Tunis & Gilbert Herd eds., 2007) ("Sexuality as a reflexive project of the self relies on the rhetoric of autonomy and self-sufficiency. Those who fail to find a sexual partner in the sanctioned self-sufficient ways are thus open to negative judgment."). For a contemporary, pernicious rendering of women as heteronomous and unthinking, see Gonzales v. Carhart, 550 U.S. 124, 159 (2007) ("While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.... The State has an interest in ensuring so grave a choice is well informed.").
(159) Kant, Education, supra note 112, at 4; see also Rasmussen, supra note 116, at 115 16 ("Kant's anthropology divides humans into four categories of descending autonomy, from white Europeans to Native Americans.").
(160) Kant, Education, supra note 112, at 26, 44, 53; see also Rasmussen, supra note 116. at 31 ("[Kant] discusses 'hardening the child' to prevent him from becoming too 'effeminate'.... As the language of effeminacy suggests, while Kant is interested in the political education of children, boys, as the future citizens, are his primary concern.").
(161) Dworkin, supra note 62, at 31.
(162) Id. at 31-32 (emphasis added).
(163) Id. at 111.
(164) Jean-Jacques Rousseau, Emile, or On Education 362 (Allan Bloom trans., 1979); see also Rasmussen, supra note 116, at 46. For eloquent reclamations of autonomy for racially and sexually minoritized populations, see, e.g., M. Jacqui Alexander, Pedagogies of Crossing: Meditations on Feminism, Sexual Politics, Memory, and the Sacred 21-65 (2005); Jafari S. Allen, !Venceremos? The Erotics of Black Self-making in Cuba 14 (2011).
(165) See Schulhofer, supra note 24, at 105 ("A person can be autonomous only if she has mental competence, an awareness of her options, and sufficient information to be able to choose intelligently between the possibilities that external conditions make available.").
(166) See supra Part I; infra Part II.B.
(167) Kant, Groundwork, supra note 23, at 23; see also Abrams, supra note 128, at 807-13 (rehearsing prominent liberal legal theorists' glosses on autonomy, which all, to varying degrees, avow the social/relational constitution of the self).
(168) See infra Part IV.A.
(169) For alternative abstractions of the human that ground more expansive models of social justice, see, e.g., Martha Albertson Fineman, The Autonomy Myth: A Theory of Dependency (2004); Eva Feder Kittay, Love's Labor (1999); Nussbaum, Sex, supra note 142; Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1 (2008); B. Honig, Rawls on Politics and Punishment, 46 Pol. Res. Q. 99 (1993); Satz, supra note 27. For a critique of these abstractions as they pertain to disability and debility, see Joseph Fischel, Against Nature, Against Consent: A Sexual Politics of Debility, 24 Differences 55, 84-90 (2013).
(170) Schulhofer, supra note 24.
(171) AY. at 112.
(172) Id. at 99-101; see infra Part II.B.1.
(173) Id. at 108-09.
(174) Mat 105.
(175) Id. at 106.
(176) Schulhofer, supra note 24, at 86.
(177) Id. at 84-88 (citing Chamallas, supra note 34; see also Lois Pineau, Date Rape: A Feminist Analysis, 8 L. & Phil. 271 (1989)).
(178) Schulhofer, supra note 24, at 109.
(179) Id. at 108-10 (citing Andrea Dworkin, Intercourse (1987); Catharine A. MacKinnon, Toward a Feminist Theory of the State (1989)).
(180) Schulhofer, supra note 24, at 87.
(181) Id. at 196 ("[I]f a teacher initiates contact with a minor, his advances should always be presumed unwelcome, and the teachers should be subject to dismissal, along with personal damage liability for sexual harassment.").
(182) Id. at 11.
(183) Id. at 15.
(184) Id. at 16.
(185) Id. at 69; Rubenfeld, Riddle, supra note 16, at 1417-18.
(186) Schulhofer, supra note 24, at 99, 152-59; see Rubenfeld, Riddle, supra note 16, at 1404 05, 1407.
(187) Schulhofer, supra note 24, at 283-84.
(188) Id. at 267 73.
(189) Id. at 269; see id. at 273 ("By requiring affirmative permission ... we can insist that any person who engages in intercourse show full respect for the other person's autonomy."); id. at 283 ("Consent. . . means ... actual words or conduct indicating affirmative, freely given permission to the act of sexual penetration.").
(190) Mat 168-253.
(191) Id. at 162.
A proposal that puts our rights at risk is coercive even when we have other choices.... An illegitimate sexual proposal should be considered coercive--whether or not the woman who is targeted has other options--if turning it down can leave her worse off.... If [a supermodel] agrees to a film producer's proposal to exchange sex for fame and riches, she was, in a sense, free to do otherwise .... What the woman may prefer, however, is a third option--the chance to compete for the film role on fair terms, without sexual submission. The film producer constrains her decision by foreclosing this choice.
Schulhofer, supra note 24, at 162. Schulhofer carves out an exception for minors. No matter how much a teenager under eighteen wants to have sex with her teacher, supervisor, etc., the sex is proscribed, and not because consent is likely polluted, but because teenagers, he assumes, are unable to consent. Id. at 101,283.
(192) Id. at 86.
(193) Id. at 87.
(194) Id at 111.
(195) Id. at 102.
(196) Schulhofer, supra note 24, at 283.
(197) Mat 101.
Violent threats are just one possible source of a defect in consent, and the law already recognizes a few others in the contexts of sexual relations. The best-known example is immaturity, the law has long prohibited consensual intercourse with a girl who is below the legally prescribed age of consent. The law likewise punishes acts of intercourse with a woman who is sleeping, unconscious, mentally incompetent, or unaware that a sexual act is being performed .... In these instances we do not say that consent was obtained by force. The man's conduct is illegal because valid consent was never obtained at all.
Id. (emphasis added). Notice the chain of equivalences from immaturity to consciousness to competence, as if all are binary existential categories. Notice too how the "legally prescribed age of consent" seamlessly reflects and summarily resolves "immaturity." Laws regulating sex across age have a checkered, gendered, and generally unsavory history, and have only recently been justified by minors' presumptive incapacity to consent. See, e.g., Carolyn E. Cocca, Jailbait: The Politics of Statutory Rape Laws in the United States 9-28 (2004); Fischel, supra note 21; Estelle B. Friedman, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation 125-56 (2013); Matthew Waites, The Age of Consent: Young People, Sexuality, and Citizenship (2005).
(198) Schulhofer, supra note 24, at 108-09; supra note 112 and accompanying text.
(199) See infra Part III.C.
(200) See Nedelsky, supra note 25, at 118-19,163, 285 ("[We are] embodied beings who participate in creating ourselves and our world but control neither.").
(201) Id. at 145.
(202) Id. at 279.
(203) Id. at 297-98.
(204) Mat 152, 305.
(205) See id.
(206) Nedelsky, supra note 25, at 5, 118-19; see also Marilyn Friedman, Autonomy, Gender, Politics 95 (2003) ("[R]elationships of certain sorts are necessary for the realization of autonomy whereas relationships of certain other sorts can be irrelevant or positively detrimental to it.... Social relationships can either promote or hinder the development of autonomy competency.").
(207) See Ball, supra note 124, at 302-03. But see Obergefell v. Hodges, 135 S. Ct. 2584, 2630 (2015) (Scalia, J., dissenting) ("[O]ne would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.").
(208) Nedelsky, supra note 25, at 97, 105; see also Ball, supra note 124, at 311.
(209) Nedelsky, supra note 25, at 31, 45, 74-75.
(210) Mat 45.
(211) Mat 166.
(213) Id. at 48. Nedelsky writes:
The positive dimension of the Western attachment to autonomy has to do with this capacity to undertake, to envision something new, to do something surprising, to shift the terms of relations.... All of that requires a capacity not to be bound by existing patterns of thought, institutions, or relationships. It requires a capacity ... to be imaginative and innovative, to shift things slightly to create a moment of joy so that they suit one better, or improve things for others.
(214) Nedelsky, supra note 25, at 45; see also Live Smart Videos, "Elizabeth Warren on Debt Crisis, Fair Taxation," YouTube (Sept. 18, 2011), https://www.youtube.com/watch?v=htX2usfqMEs [http://perma.cc/ 9RK.K-SJFL].
(215) Nedelsky, supra note 25, at 45; see also LiveSmartVideos, supra note 214.
(216) See supra Parts II.A, II.B.
(217) Nedelsky, supra note 25, at 167.
(218) Id. at 162-67. However, we recognize that "self-determination" has served as a core political value for, and rhetorical petition of, the disability rights movement. See James I. Charlton, Nothing About Us Without Us 17(2000).
(219) Nedelsky, supra note 25, at 160.
(220) Id at 162.
(221) Id. at 158.
(222) Anna Yeatman, What Can Disability Tell Us About Participation?, in Explorations on Law and Disability in Australia 181, 181 (Melinda Jones & Lee Ann Basser Marks eds., 2000). Nedelsky aligns her relational autonomy with Yeatman's appeal for social participation. Nedelsky, supra note 25, at 27.
(223) Yeatman, supra note 222, at 182, 190, 195.
(224) Mat 182.
(225) Id. at 183.
(226) Nedelsky, supra note 25, at 183; see also Charlton, supra note 218, at 21- 22.
(227) Yeatman, supra note 222, at 191.
(228) Id. at 190-92.
(229) Id. at 196.
(230) However, Nedelsky cautions against collapsing autonomy into participation, as the latter can be purely procedural and the former is a "substantive value." Nedelsky, supra note 25, at 149, 151.
(231) Id. at 167.
(232) Id. at 157.
(233) Id. at 154-55.
(234) Id. at 141-43.
(235) Yeatman, supra note 222, at 218-21.
(236) Id. at 219.
(237) See Nedelsky, supra note 25, at 315-17.
(238) See supra notes 109-167 and accompanying text.
(239) See Nedelsky, supra note 25, at 54-56, 65-69, 167.
(240) Id. at 162-66, 168-73.
(241) Id. at 192-93.
(242) See supra notes 223-229 and accompanying text.
(243) Nussbaum, Capabilities, supra note 25, at 86-94. Nussbaum grounds her argument for political inclusion of persons with severe intellectual disabilities through recourse to "dignity" and "equal respect," not "autonomy," but the extant injustice she identifies, id. at 91, registers as a deprivation of autonomy, relationally reconstructed: "at present, a large group of citizens are simply disqualified from the most essential functions of citizenship. They do not count. Their interests are not weighed in the balance." Id.
(244) See supra notes 210-213 and accompanying text.
(245) Nedelsky, supra note 25, at 123.
(246) Id. at 403 n. 16.
(247) Id. at 141.
(248) Yeatman, supra note 222, at 187-88.
(249) Id. at 181.
(250) Judith Butler argues that the rupturing element of what we term gender or sexuality belies any resignification of autonomy, even of the relational sort (i.e., what "relational autonomy" patches over is the very psychical dispossession that is elemental to desire/gender/sexuality/grief). Judith Butler, Undoing Gender 17-34 (2004). But Butler's staging of vulnerability/precarity/grievability against autonomy is persuasive only if we retreat to Kantian autonomy. Id. at 32. This claim against autonomy might make sense as a linguistic or metaphysical claim. Butler's send-up of autonomy, though, is irrelevant to, or as she might say, "beside" law. Id. at 20, 25. Despite her own reservations on sexual autonomy and its implications for our understandings of subjectivity and subject formation, Butler emphasizes repeatedly that, under liberal legal regimes, we "must" mobilize autonomy for the protection of minoritized genders and sexualities. Id. at 19, 20, 21, 32. This is not strategic essentialism; this is about surviving and thriving. Id. at 21.
Moreover, although the key terms/concepts of Undoing Gender are sexual autonomy, gender violence, sexual difference, survival, grief, unthinkability, gender as norm, and norm as reiterative practice, Butler never mentions rape. The closest Butler comes to addressing sexual assault is her canvassing of "sexual harassment." Id. at 53-56. Butler argues, contra Catharine MacKinnon, that sexual harassment codes, rather than sexual harassment, install heterosexuality as gendered subordination and gender as binary. Id. at 54. This is an easy target (and misconstrues sexual harassment law, Title VII, and Title IX). More importantly, perhaps a different form of sexual autonomy materializes when the paradigmatic form of sex/gender injury is not, or not only, dignitarian violence aimed against LGBTI people (and so diminished autonomy correlates as diminished identity integrity), but also sexual violence aimed against women (and so diminished autonomy correlates as the diminished capability to codetermine sexual relations). At a minimum, Butler's idiom of the "unthinkable"--of violence as a way to relocate persons off the grid of cultural legibility, id. at 35. 130. is questioned. Subordination and erasure are nonidentical injuries.
(251) See, e.g., supra notes 162-163 and accompanying text.
(252) Nedelsky, supra note 25, at 30, 433 n.23 ("While 1 am at times troubled by the Rawlsian dimensions of some of Nussbaum's later work, I find the Aristotelian aspects of her work (i.e., the focus on goals and goods as realized in activity) to be useful.").
(253) Id. at 159.
(254) See Nussbaum, Frontiers, supra note 25, at 127.
(255) Id. at 167.
(256) Id. at 118, 120 (citing John Rawls, Political Liberalism 21(1996)); see also Kulick & Rydstrom, supra note 27, at 21, 280.
(257) Nussbaum, Frontiers, supra note 25, at 160.
(258) For a similar comparative analysis of Rawls' and Nussbaum's modeling of social justice and disability, see Fischel, supra note 169, at 87.
(259) Nussbaum, Frontiers, supra note 25, at 195-216.
(260) Nussbaum, Capabilities, supra note 25, at 86-94.
(261) See Kulick & Rydstrom, supra note 27, at 22.
(262) Nussbaum, Frontiers, supra note 25, at 76-77 (emphases added); see also Kulick & RydstrOm, supra note 27, at 286 (arguing "three of [Nussbaum's] capabilities ... are directly relevant to disability and sexuality." These are, for the authors, Bodily Integrity, Emotions, and Affiliation.)', Christopher A. Riddle, Disability and Justice: The Capabilities Approach in Practice 80 (2014) ("According to Nussbaum, sexual or romantic pleasures are things all individuals ought .to have a genuine opportunity to pursue.").
(263) See Kulick & RydstrOm, supra note 27, at 285, 292. In an otherwise meticulous synthesis of the Capabilities Approach and disability accommodations, Christopher Riddle performs just such a trivialization of sex and sexuality. Riddle, supra note 262, at 77-85. Among other (sympathetic) criticisms he levels at the CA, Riddle suggests that Nussbaum's list of central capabilities ought to be ranked by moral priority to give guidance to theorists and policymakers. Id. at 42 44, 85. If the denial of opportunities to realize certain capabilities leads to "corrosive disadvantage"--damaged functioning in other arenas of social life--those capabilities are more important than others. Id. at 82. This may or may not be reasonable, but to evidence the point, Riddle characterizes "health" as a capability of highest moral importance (because unhealthiness infects so many other functionings) and opportunities for sexual satisfaction as relatively morally unimportant. Riddle, supra note 262, at 82-85. Given the ignominious history of degrading or denying the sexuality of persons with disabilities, one would think Riddle might have selected other examples.
(264) See infra Part IV.
(265) See supra notes 103-107 and accompanying text; infra Part IV.D.
(266) See, e.g., Nussbaum, Sex, supra note 142, at 124-27 (arguing that female genital mutilation is wrong because it eviscerates the capability to sexually function).
(267) See Joseph J. Fischel, Per Se or Power? Age and Sexual Consent, 22 Yale J.L. & Feminism 279, 318 (2010).
(268) But see Lisa Downing, On the Limits of Sexual Ethics: The Phenomenology of Autassassinophilia, 8 Sexuality & Culture 3 (2004); see also Fischel, supra note 21.
(269) See Spindelman, Law, supra note 16, at 186.
(270) The stipulation comports with Nussbaum's Capabilities Approach, which "recommends, as a necessary condition of social justice, bringing all citizens above a rather ample threshold on each of the ten capabilities, not complete equalizing of all the capabilities." Nussbaum, Capabilities, supra note 25, at 78.
(271) Nedelsky, supra note 25, at 303.
(272) See supra notes 109-110 and accompanying text.
(273) See Nussbaum, Frontiers, supra note 25, at 79-80 ("Many people who are willing to support a given capability as a fundamental entitlement would feel violated were the associated functioning made basic My own view is that people should be given ample opportunities to lead a healthy lifestyle, but the choices should be left up to them; they should not be penalized for unhealthy choices."); see also Boni-Saenz, supra note 15, at 1226.
(274) On the ways disability and disability studies render sex as polysemous (as queer studies would have liked to), see infra notes 550-554 and accompanying text.
(275) See, e.g., Linda Martin Alcoff, Dangerous Pleasures: Foucault and the Politics of Pedophilia, in Feminist Interpretations of Michel Foucault 99, 127-28 (Susan J. Hekman ed., 1996):
[T]he phenomenology of sex itself ... involves uniquely sensitive, vulnerable, and psychically important areas of the body, a fact that persists across cultural differences. Thus sexual experiences have the capacity to impart crucial meanings concerning one's body and, therefore, one's self.... It is not that social context alone that makes sexual acts significant, but social context in relation to the phenomenology of embodiment.
(276) State v. Fourtin, 52 A.3d 674 (Conn. 2012).
(277) See infra section III.B.
(278) See infra notes 317-326 and accompanying text; Part III.C.
(279) Fourtin, 52 A.3d at 677.
(280) Id. at 691.
(281) State v. Fourtin, 982 A.2d 261,264 (Conn. App. Ct. 2009).
(283) Conn. Gen. Stat. Ann. [section] 53a-71(a)(3) (West 2015).
(284) Conn. Gen. Stat. Ann. [section] 53a-73(a)(1)(C) (West 2015).
(285) Conn. Gen. Stat. Ann. [section] 53a-65(6) (West 2015).
(286) State v. Fourtin, 52 A.3d 674, 688-89 (Conn. 2012).
(287) State v. Fourtin, 982 A.2d 261,266 (Conn. App. Ct. 2009).
(288) Id. at 266.
(289) Id. at 261.
(290) Fourtin, 52 A.3d at 689-90.
(291) State v. Hufford, 533 A.2d 866 (Conn. 1987).
(292) Fourtin, 52 A.3d at 682.
(294) Id. at 701 (Norcott, J., dissenting) (internal citation omitted).
(296) Id. at 695 (Norcott, J., dissenting).
(297) Id. at 701 n.22.
(298) Although public media frenzy around Fourtin did not ignite until the 2012 Connecticut Supreme Court decision, legislative reform advocacy began earlier. Following the 2009 Connecticut Appellate Court ruling, a small group of state legislators and organizers began proposing revisions to existing statutes--especially Connecticut General Statute [section][section] 53a-71(a)(2) and -71(a)(3). See infra notes 320-326 and accompanying text.
(299) See, e.g., Tepfer, supra note 3; Zack Beauchamp, Court Requires Disabled Rape Victim to Prove She Resisted, Calls for Evidence of 'Biting, Kicking, Scratching,' ThinkProgress (Oct. 3, 2012), http:// thinkprogress.org/justice/2012/10/03/947981/court-requires-disabled-rape-victim- to-prove-she-fought-back calls-for-evidence-of-biting-kicking-scratching/?mobile=nc [http://perma.cc/8BMR-G8HF]; State Supreme Court Tosses Sex Assault Conviction, NBC Conn. (Oct. 4, 2012), http://www.nbcconnecticut.com/news/ local/State-Supreme-Court-Tosses-Sex-Assault-Conviction-172269281 .html [http://perma.cc/U76V-R7Q7]; Richard Fourtin Case: Connecticut Court Sets Accused Rapist Free, Says Handicapped Victim Did Not Resist, Huffington Post (Oct. 4, 2012), http://www.huffingtonpost.com/2012/10/04/richard-fourtin-casesupreme- courtaccused-rapist-sexual-assault-handicapped-victim_n_1937528.html [http://perma.cc/D6286U37]; Charlie Wells, Connecticut Supreme Court Tosses Richard Fourtin Jr. s Guilty Verdict for Sexually Assaulting Woman with SEVERE Cerebral Palsy, N.Y. Daily News (Oct. 4, 2012), http://www.nydailynews. com/news/national/guilty-verdict-tossed-sex-assault-woman-cerebral-palsy- article-1.1175342 [http://perma. cc/8EDB-ZCLG]; Women: Rise Up Now, State of Connecticut v. Fourtin, Rising Tide Blog (Oct. 5, 2012), http://risingtideblog.com/2012/10/05/state-of-connecticut-v-fourtin [http://perma.cc/DDR8-XAQ5]; Women: Rise Up Now, One More Word About Fourtin, Rising Tide Blog (Oct. 14, 2012), http://risingtideblog. com/2012/10/14/one-more-word-about-fourtin [http://perma.ee/33 S5-EYQV],
(300) For criticisms of the resistance requirement of rape law, see supra notes 40 41 and accompanying text; Patricia J. Falk, 'Because Ladies LieEliminating Vestiges of the Corroboration and Resistance Requirements from Ohio's Sexual Offenses, 62 Clev. St. L. Rev. 343 (2014); Susan Schwartz, An Argument for the Elimination of the Resistance Requirement from the Definition of Forcible Rape, 16 Loy. L.A. L. Rev. 567 (1983).
(301) See, e.g., Beauchamp, supra note 299; Richard Fourtin Case, supra note 299. But see Women: Rise Up Now, One More Word About Fourtin, supra note 299.
(302) Tepfer, supra note 3.
(303) Richard Fourtin Case, supra note 299.
(304) Neither the Fourtin majority nor dissent claims that L.K. "has the intellectual functional equivalent of a three-year-old," a statement repeated by multiple news sources. See, e g., Beauchamp, supra note 299. However, the majority cites testimony from a clinical psychologist "describing] the victim's total functioning as akin to that of a person between the ages of two and five years old" and comparing L.K. to "a five year old child who has been 'isolated' and has 'not had contact with anything other than a certain limited world.'" State v. Fourtin, 52 A.3d 674, 677 n.7 (Conn. 2012).
The discursive equivalence of mentally and physically disabled adults with children--both in terms of cognition and social/sexual propriety--is widespread and pernicious. On the infantilizing of disabled adults, see, e.g., Eli Clare, Exile and Pride: Disability, Queerness, and Liberation 108-09 (1999) ("I think about the perpetual childhood many disabled people are forced into ... pictured as passive and awkward, child-like without the least hint of sexuality."). Alternatively, on the discursive construction of persons with disabilities as sexually unruly and predatory, see, e.g., Pamela Block, Sexuality, Fertility, and Danger: Twentieth Century Images of Women with Cognitive Disabilities, 18 Sexuality & Disability 239, 245 (2000). See also infra notes 442-444 and accompanying text. On modern and late modern constructions of children as innocent and incompetent, see, e.g., Brewer, supra note 158; Appell, supra note 158.
(305) Richard Fourtin Case, supra note 299.
(306) Wells, supra note 299.
(307) See, e.g., Gideon, Supreme Court hates disabled people and eats children for lunch. Probably., A Public Defender (Oct. 4, 2012), http://apublicdefender.com/2012/10/04/supreme- court-hates-disabled-peopleand- eatschildren-for-lunch-probably [http://perma.cc/9FRZ-FB7P] [hereinafter Gideon, Supreme Court]; Gideon, Why we can't just make stuff up as we go along; or, Due Process, A Public Defender (Oct. 9, 2012), http://apublicdefender.com/2012/10/09/why-we-cant-just-make-stuff-up-as-we-go- along-or-due-process [http://perma.cc/3ZJN-8GAW] [hereinafter Gideon, Why we can't]', Ken White, Frankly, I Don't Care How Due Process Makes You Feel, PopeHat (Oct. 9, 2012), http://www.popehat.com/2012/10/09/frankly-i-dontcare-how- dueprocess-makes-you-feel [http://perma.cc/666X-RSA3].
(308) See Fourtin, 52 A.3d at 688.
(309) See Gideon, Supreme Court, supra note 307.
(310) Id.; White, supra note 307.
(311) This bind (too disabled for force to be necessary, too abled to be helpless) is nowhere more egregiously exemplified than in State v. Hufford. See supra notes 291-293 and accompanying text. The Connecticut Supreme Court overturned the conviction of an emergency medical technician for sexually assaulting a woman taped to a stretcher. Hufford "had no need to exert force to effect the sexual contact. The complainant had been rendered immobile for transport to the hospital and the defendant had only to open her blouse and pants to commit the sexual assault. We are unpersuaded by the state's argument that these actions constituted force." State v. Hufford, 533 A.2d 866, 871 (Conn. 1987). On the other hand, "[w]hile [the defendant's] testimony tends to show lack of consent, it contradicts the state's assertion that the complainant was unable to communicate her 'unwillingness to an act.' The record contains no evidence tending to show that the complainant was physically helpless." Id. at 873. While the Connecticut Supreme Court remanded the case "for a new trial limited to the issue of lack of consent," such a charge--violation of Connecticut General Statute [section] 53a-73a(a) (2)--is a misdemeanor, applicable only to sexual contact (not intercourse) and is hardly ever prosecuted but for unwanted gropes. See infra notes 360-361 and accompanying text.
(312) Until 2013, Connecticut General Statute [section] 53a-71(a)(2) read: "A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and . . . such other person is mentally defective to the extent that such other person is unable to consent to such sexual intercourse." For the post-Fourtin revised statutes, see infra notes 326-328.
(313) See, e.g., White, supra note 307. Connecticut General Statute [section] 53a-65(4) defines a subject as "mentally defective" if that person "suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person's conduct." Conn. Gen. Stat. Ann. [section] 53a-65(4) (West 2015).
(314) State v. Fourtin, 52 A.3d 674, 689 n.20 (Conn. 2012).
(315) Id. at 701 n.22 (Norcott, J., dissenting).
(316) Interview with Susann E. Gill, Supervisory Assistant State's Att'y, Conn. State's Att'y's Office, Judicial Dist. of Fairfield, in Milford, Conn. (Oct. 16, 2014). However, Deborah Denno documents several cases in which "mental defect" or similar statutory language has been interpreted expansively--too expansively for Denno (and for us)--to render persons legally unable to consent to sexual relations. Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. III. L. Rev. 315, 347-49; see also infra Part III.C.
(317) Permanent Comm'n on the Status of Women, 2012 Conn. Gen. Assemb., Official Statement Re: State v. Richard Fourtin Conviction [hereinafter Official Statement].
(319) Supporters of the 2012 bill, S.B. 247, 2012 Leg., Reg. Sess. (Conn. 2013), which successfully passed in 2013, included: HARC, Inc.; the Susan B. Anthony Project; Connecticut Sexual Assault Crisis Services (CSACS); The Arc of Connecticut; Mary Ann Langton; Mary Louise Reardon; and Robert James Payne. For a full list of supporters of earlier drafts of the bill, see id.
(320) See id.
(321) Id. (emphasis added).
(322) Id. Although neither S.B. 315, 2010 Leg., Reg. Sess. (Conn. 2010), nor S.B. 918, 2011 Leg., Reg. Sess. (Conn. 2011), passed the Connecticut House of Representatives, the bills were not met with substantial resistance when proposed. The official statement released by the Permanent Commission on the Status of Women on the legislative history of proposed changes to Connecticut General Statute [section] 53a-71 (regarding sexual assault in the second degree) notes, Official Statement, supra note 317, that both S.B. 315 and S.B. 918 were voted through by the Joint Committee on Judiciary and then passed in the Connecticut State Senate. Based on the limited details provided by the PCSW, S.B. 315 failed to pass because the House did not act on it after it passed the Senate, and S.B. 918 failed to pass because it died on the House calendar. Whether these failures to act on the proposed bills were the result of legislative inertia or silent resistance remains unclear; however, that the bill was then substantially pared down in 2012, see infra notes 286-287 and accompanying text, is somewhat surprising.
(323) S.B. 247, 2012 Leg. Reg. Sess. (Conn. 2013) (emphasis added).
(324) See Conn. Gen. Stat. [section] 53a-71(a)(4) (2013); Conn. Gen. Stat. [section] 53a-73a(a)(l)(C).
(325) See Conn. Gen. Stat. [section] 53a- 73a.
(326) S.B. 247 proposed the following revision to Connecticut General Statute [section] 53a-71(a)(2):
[A] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... the ability of such other person to consent of to communicate lack of consent to such sexual intercourse is substantially impaired because of mental disability and the actor knows or has reasonable cause to know that the ability of such other person to consent or to communicate lack of consent to such intercourse is so impaired.
Conn. S.B. 247. For the original text of Connecticut General Statute [section] 53a-71(a)(2), see supra note 312.
(327) Michelle Golladay, Legislation Would Close 'Gap' in Sex Assault Law Involving Disabled, Conn. Law Tribune (Mar. 29, 2013), http://www.ctlawtribune.com/PubArticleCT.jsp?icH 1202594133927 [http://perma.ee/ S9YY-HQWJ],
(328) For a meticulously crafted, measured argument against overbroad statutory proscriptions on the sexual conduct of persons with intellectual disabilities, see generally Denno, supra note 316; see also Jacob M. Appel, Sex Rights for the Disabled?, 36 J. Med. Ethics 152 (2010); infra notes 337-341 and accompanying text. From one historical vantage point, extending the capture of the "physically helpless" and "mentally incapacitated" statutory subclauses reflects and reignites the socio-legal "asexual objectification of disabled individuals." Harlan Hahn, Feminist Perspectives, Disability, Sexuality, and Law, 4 S. Cal. Rev. L. & Women's Stud. 97, 100(1994).
(329) On more generalized concern regarding the juridical will-to-protection over disabled persons' sexuality, see, for instance, Anne Finger, Forbidden Fruit, 233 New Internationalist (July 1992), http://newint.org/ features/1992/07/05/fruit [http://perma.cc/D4PK-5MMJ]; Siebers, supra note 27; Mark O'Brien. On Seeing a Sex Surrogate, Sun, May 1990, http://thesunmagazine.org/issues/174/on_seeing_a_sex_surrogate [http:// perma.cc/2Q6C-QQH4]; see also sources cited in Denno, supra note 316, at 380-93; infra note 446 and accompanying text.
The distinction between "disability theorists" and "people with disabilities" is analytic, the referent populations overlapping. From herein, as the Article becomes prescriptive, we amplify the voices and forefront the experiences of persons with significant disabilities.
(330) See, e.g., Golladay, supra note 327 ("State Representative Gerald Fox III ... said, 'we've had to be extremely careful with the language that we use,' in part so that the measure doesn't end up banning handicapped people from consenting to sexual activity.").
(331) State v. Fourtin, 52 A.3d 674, 682 (Conn. 2012).
(332) On "derealization" as an idiom and upshot of unjust sociolegal formations, see Judith Butler, Precarious Life: The Powers of Mourning and Violence 34 (2006). For a critique of Butler's framing of gendered and sexual violence as rendering subjects unthinkable, but not also subordinated, see supra note 250. The gender-neutral pronoun "hir" may be jarring, but its usage aligns with the normative aspiration of this Article. We carry a brief for a reconstructed sexual autonomy right, a right that privileges the codetermination, rather than the sovereign ascription, of social and sexual identification. See Dean Spade, Resisting Medicine, Re/modeling Gender, 18 Berkeley Women's L.J. 15, 17 n.7 (2003).
(333) See, e.g., Clare, supra note 304, at 108-09; Flahn, supra note 328, at 121-24; Shakespeare, supra note 14, at 161 ("The barriers to the sexual expression of disabled people are primarily to do with the society in which we live, not the bodies with which we are endowed."); Siebers, supra note 27; Holly Ann Wade, Discrimination, Sexuality and People with Significant Disabilities: Issues of Access and the Right to Sexual Expression in the United States, 22 Disability Stud. Q. 9 (2002); infra notes 394-401 and accompanying text. Resonantly, Rosemarie Garland-Thompson flags the connection between the coercive sterilization of disabled persons and elective prenatal testing for genetic disabilities. Rosemarie Garland-Thompson, Integrating Disability, Transforming Feminist Theory, 14 Nat'l Women's Stud. Ass'n J. 1, 16 (2002) ("The practices of genetic and prenatal testing as well as physician-administered euthanasia then become potentially eugenic practices within the context of a culture deeply intolerant of disability.").
(334) See infra note 332.
(335) We understand the reclaimed pejorative "crip" to signal practices and theories that put pressure on, while also countenancing the power effects of, the norms, determinants, and identity formations that orbit ability and disability. See Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 33-76 (2006) [hereinafter McRuer, Crip]; see also supra notes 13-14 and accompanying text.
(336) Denno, supra note 316, at 341-55; see also Gill, supra note 13, at 192-93. In this Article, we use the now more acceptable language of "intellectual disability" in reference to the same or similar populations as Denno, aware that all such ascriptive and identitarian terms, including our own, are subject to changing and competing cultural norms. Of course, sensitive terminology has no necessary correspondence to just policy. See Kulick & Rydstrom, supra note 27, at 37.
What we will present in this book ... is the example of a country [Denmark] where wildly politically incorrect language about disability coexists with policies and practices that are both politically radical (for what they mean for the rights of people with disabilities as citizens) and ethically progressive (for what they imply about how disabled and nondisabled people might imagine and engage with one another). This contrasts starkly with Denmark's neighbor, Sweden. There, language about disability is constantly monitored and uncompromisingly judged. But policies and practices relating to the sexual lives of people with disabilities are politically retrogressive and ethically arrested.
(337) Denno, supra note 316, at 349 ("Most striking is that all [court] tests appear to judge mentally retarded victims under a higher consent standard than nonretarded victims.") (internal citation omitted).
(338) Id. at 342, 355-56.
Courts nearly always refer to a victim's IQ when the crime charged is rape or an assault against a mentally retarded person. Although IQ is a convenient clinical and administrative tool, alone it has limited predictive value and may mischaracterize an individual's adaptive abilities, particularly when it used by inexperienced evaluators. Although courts also typically refer to a victim's "mental age," it too is considered misleading and controversial.
Id. at 366 (internal citations omitted). For another trenchant criticism of "mental age," see Gill, supra note 13, at 38 ("Mental age is an ableist notion that can actively discredit individual choice and perpetuate assumptions about incompetence, childhood, and necessity for protection by prioritizing professional medical authority at the expense of individual desire and epistemology.").
(339) Denno, supra note 316, at 349-52. Of course, medical authorities have not always required the pretense of consent to intervene on the reproductive and sexual lives of women with disabilities. Sexual unruliness and "improvement" of the human population have long justified sterilization and other eugenic policies. See, e.g., Block, supra note 304, at 245; see also infra notes 441 446 and accompanying text.
(340) Denno, supra note 316, at 355-59.
(341) Id. at 343.
(342) Id. at 394-95 ("By excluding from statutory specification the term mental retardation or any other pejorative label currently encompassing it, state legislatures would appropriately foster the presumption that most mentally retarded individuals are able to consent to sexual relations under most circumstances.").
(343) Id. at 342 43 (arguing that legal terms for and jury instructions regarding intellectual disability are outdated and do not reflect current medical consensus and research findings).
(344) Id. at 394.
(345) Denno, supra note 316, at 360-76 (criticizing the prosecution and defense strategies in the "Glen Ridge Rape Case," both of which emphasized victim's IQ and "mental age"); see In re B.G., 589 A.2d 637 (N.J. Super. Ct. App. Div. 1991).
(346) Denno, supra note 316, at 394-95.
(347) See infra Parts IV.C, IV.D.
(348) Denno, supra note 316, at 359. Denno references Wolf Wolfensberger's "dignity of risk," which posits "a certain 'dignity' in allowing mentally retarded individuals to assume the same risks as nonretarded individuals." Id. at 359 n.277. Dignity, framed as such, lends itself to a presumption of noninterference and thus dedifferentiation regarding the legal treatment of persons with disabilities. Sexual autonomy, as a human capability, demands positive provisions for flourishing, and thus differentiation compensating extant social inequalities, asymmetric opportunities, and accidents of birth. See Nussbaum, Frontiers, supra note 25, at 186-95.
(349) See infra Part IV.E.
(350) O'Brien, supra note 329.
(351) See Carlson, supra note 158, at 131-37 (documenting philosophers' analogizing of persons with intellectual disabilities to nonhuman animals); see also supra notes 161-163 and accompanying text; supra notes 255-258 and accompanying text.
(352) For a critique of the comparison between animality and disability, see Carlson, supra note 158, at 137-61; see also Peter Singer, Animal Liberation (2009).
(353) See, e.g., Fineman, supra note 169; Kulick & Rydstrom, supra note 27, at 281; Garland-Thompson, supra note 333, at 21 ("An equality model of feminist theory sometimes prizes individualistic autonomy as the key to women's liberation. A feminist disability theory, however, suggests that we are better off learning to individually and collectively accommodate bodily limits and evolutions than trying to eliminate or deny them."); Russell Shuttleworth, Critical Research and Policy Debates in Disability and Sexuality Studies, 4 Sexuality Res. & Soc. Pol'y 1, 5 (2007); Siebers, supra note 27, at 38 ("[D]isabled people experience sexual repression, possess little or no sexual autonomy, and tolerate institutional and legal restrictions on their intimate conduct."); Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 Wis. Women's L.J. 149, 159-61 (2000); see also Nedelsky, supra note 25, at 118-27 (rehearsing and critiquing feminist interventions against autonomy).
(354) Or overprotected. See generally Denno, supra note 316.
(355) See supra notes 33-35 and accompanying text; see also Jennifer A. Bennice & Patricia A. Resick, Marital Rape: History, Research, and Practice, 4 Trauma Violence & Abuse 228 (2003); Chamadas, supra note 34; Falk, supra note 300; Anna Scheyett, Marriage is the Best Defense: Policy on Marital Rape, 3 Affilia: J. Women & Soc. Work 8 (1988); Schwartz, supra note 300.
(356) See Caringella, supra note 38, at 14-15. But see Schulhofer, supra note 24, at 29-32 (observing that some feminist legal activists focused on expanding the meaning of "force" in sexual assault offenses while others focused on eliminating or diminishing the force requirement).
(357) Caringella, supra note 38, at 76.
(358) See supra notes 323-326 and accompanying text.
(359) See Caringella, supra note 38, at 106-07; see also Michal Buchhandler- Raphael, The Failure of Consent: Re-Conceptualizing Rape as Abuse of Power, 18 Mich. J. Gender & L. 147, 156-60 (2011). In Connecticut, while "lack of consent" has been read into the force element of sexual assault, see, e.g., State v. Smith, 554 A.2d 713 (Conn. 1989), the state court also made clear that, absent force, passiveness, id. at 718, and silence, id. at 717, register as consent. See infra note 362.
(360) Interview with Susann E. Gill, supra note 316; see also supra note 314.
(361) Shefelbine v. Comm'r of Corr., 90 A.3d 987 (Conn. App. Ct. 2014); State v. Jesse H., 78 A.3d 228 (Conn. App. Ct. 2013); State v. White, 55 A.3d 818 (Conn. App. Ct. 2012); State v. McLaren, 15 A.3d 183 (Conn. App. Ct. 2011); State v. McGee, 4 A.3d 837 (Conn. App. Ct. 2010); State v. Calvin N., 998 A.2d 810 (Conn. App. Ct. 2010). For our analysis of these 175 cases, see infra notes 405-413.
(362) Conn. Gen. Stat. Ann. [section][section] 53a-70(a)(1) (West 2012), - 70b(b) (West 2015), -72a(a)(1)(A)(B) (West 2012). In State v. Smith, 554 A.2d 713, the Connecticut Supreme Court held "lack of consent" to be an element of the crime of sexual assault in the first degree. However, while a "finding that a complainant had consented would implicitly negate a claim that the actor had compelled the complainant by force or threat to engage in sexual intercourse," id. at 717, "it is clear that a defendant must either use force or threaten its use by words or conduct that would reasonably generate fear of physical injury," id. at 718. Thus, in Smith, the gravamen is not the fact that the complainant "expressly declined [Smith's] advances," but that Smith made a "statement she could reasonably have regarded as a threat of physical injury." Id. For clarification on the requisite mens rea regarding lack of consent for sexual assault offenses, see Efstathiadis v. Holder, 119 A.3d 522 (Conn. 2015).
(363) Conn. Gen. Stat. Ann. [section][section] 53a-70a(a)(1) (West 2012), - 72b(a) (West 2012).
(364) Conn. Gen. Stat. Ann. [section] 53a-70a(a)(2)(3) (West 2015).
(365) See supra Parts III.A, III.B.
(366) See infra notes 398-402 and accompanying text.
(367) See Schulhofer, supra note 24, at 283; see also Catharine A. MacKinnon, Women's Lives, Men's Laws 246-47 (2005) ("Requiring affirmative consent ... is an improvement over existing law, but can be polluted by inequality.... If force were defined to include inequalities of power, meaning social hierarchies, and consent were replaced with a welcomeness standard, the law of rape would begin to approximate the reality of forced and unwanted sex."); Joan McGregor, Why When She Says No She Doesn 'I Mean Maybe and Doesn't Mean Yes: A Critical Reconstruction on Consent, Sex, and the Law, 2 Legal Theory 175(1996); Schwartz, supra note 300, at 592-95; see generally Yes Means Yes! Visions of Female Sexual Power and a World without Rape (Jaclyn Friedman & Jessica Valenti eds., 2008).
(368) Schulhofer, supra note 24, at 283; see, e.g., Wis. Stat. Ann. [section] 940.225(4) (West 2013) ("'Consent,' as used in [the sexual assault offenses] means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact."); see also Heidi Kitrosser, Meaningful Consent: Toward a New Generation of Statutory Rape Laws, 4 VA. J. Soc. Pol'y & L. 287, 329 (1997) (advocating an affirmative consent standard for sex with minors). On the insertion of affirmative consent in university sexual misconduct codes, see, e.g., Melanie Boyd & Joseph Fischel, The Case for Affirmative Consent (Or, Why You Can Stop Worrying That Your Son Will Go To Prison For Having Sex When He Gets To College), Huffington Post (Dec. 17, 2014, 9:48 AM), http://www.huffingtonpost.com/ melanie-boyd/the-case-for-affirmative-consent_b_6312476.html [http://penna.cc/BH5Z-2STD].
(369) See, e.g., Celia Kitzinger & Hannah Frith, Just Say No? The Use of Conversation Analysis in Developing a Feminist Perspective on Sexual Refusal, 10 Discourse & Soc'y 293, 295-99 (1999).
(370) See, e.g., Schwartz, supra note 300, at 566-82. But see Sharon Marcus, Fighting Bodies. Fighting Words: A Theory and Politics of Rape Prevention, in Feminists Theorize the Political 385, 385 (Judith Butler & Joan W. Scott eds., 1992) (arguing that feminist rehearsals of rape trauma may re- inscribe the injuries they are deployed to offset).
(371) Some feminist law scholars reject consent as a legal metric for adjudicating sexual harm. For an eloquent if ultimately authoritarian defense of "pleasure" as the organizing principle for feminist legal advocacy, see West, supra note 353.
(372) Interview with Susann E. Gill, supra note 316.
(373) See, e.g., Carinuella, supra note 38, at 75-95; David P. Bryden, Redefining Rape, 3 Buff. Crim. L. Rev. 317, 400-11 (2000); Judith Shulevitz, Regulating Sex, N.Y. Times, Jun. 27, 2015, http://www.nytimes. com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html?_r=0 [http://perma.cc/P2F6-NHBE].
(374) See, e.g., Chappelle's Show, Love Contract, Comedy Central (Feb. 11, 2004), http://www.cc.com/ video-clips/jwmvxd/chappelle-s-show-love-contract [http://perma.cc/5PAS-HWX8]; see also Jed Rubenfeld, Mishandling Rape, N.Y. Times, Nov. 15, 2014, http://www.nytimes.com/2014/11/16/opinion/sunday/ mishandling-rape.html [http://perma.cc/B4ZY-PM8K] ("Under this definition [of sexual consent at Yale University], a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say--correctly--that he or she was raped. This is not a law school hypothetical. The unambiguous consent standard requires this conclusion."). Rubenfeld's assertions here are plainly wrong, not least because a violation of a university's sexual misconduct code and a violation of state criminal code (rape) are nonequivalent. Moreover, Rubenfeld's adverbial "voluntarily" seems to token the affirmative consent he decries. See Boyd & Fischel, supra note 368.
(375) State v. Fourtin, 52 A.3d 674,691 n.7 (Conn. 2012) (Norcott., J., dissenting) ("The communication board utilized by the victim contains numerous words, such as emotions, persons' names, 'yes' and 'no,' and icons to which she can point in order to express her needs and desires, such as hunger, thirst and the need to use the toilet."). An affirmative consent standard sounds with the first prong of Boni-Saenz' three-pronged test to determine the sexual decision-making ability of persons with cognitive impairments: "the capacity to express volition." Boni-Saenz, supra note 15, at 1234.
(376) Kulick & Rydstrom, supra note 27, at 105-08. For a more detailed discussion of Kulick and Rydstrom's brief for sexual assistance for persons with disabilities, see infra Part IV.E.3.
(377) Kulick & Rydstrom, supra note 27, at 107.
(378) Denno, supra note 316, at 355-58; see supra notes 336-349 and accompanying text.
(379) Denno, supra note 316, at 355-59.
(380) See Fischel, supra note 267, at 324; Schulhofer, supra note 24, at 114-36.
(381) See Denno, supra note 316, at 387-89; see also Appel, supra note 328, at 153 ("All smiles, of course, do not betoken consent. Yet rather than enforcing a restriction that is over- inclusive ... caregivers of institutionalised individuals should evaluate smiles and other forms of non- verbal and indirect assent in the context of the patient's life.").
(382) Denno, supra note 316, at 343.
(383) Id. at 376; see also Nancy Mairs, Waist-High in the World; A Life Among the Nondisabled 59 (1997) (discussing ways persons with disabilities are literally, not just figuratively, marginalized from society).
(384) Denno, supra note 316, at 355-60.
(385) Id. at 374 (enumerating an appellate court's criteria to determine the victim's capacity in the "Glen Ridge Rape Case").
(386) Id. at 350 ("[C]ourts' pretense of a societal moral consensus [recognition of which may serve as the metric for an intellectually disabled person's mental capacity] encourages judges and juries to determine consent not on the basis of facts and law but rather on the basis of their moral view of the world.").
(387) For a similar criticism of Denno's remedy, see Boni-Saenz, supra note 15, at 1221, 1244. However, under our reconstructed principle of sexual autonomy, not all consensual kinky or rough sex may be legally permissible. See supra notes 266-268 and accompanying text; infra note 417 and accompanying text.
(388) See supra Part I.C.
(391) See, e.g., D.C. Code [section] 22-1901 (2013) ("If any person in the District related to another person within and not including the fourth degree of consanguinity ... shall marry or cohabit with or have sexual intercourse with such other so-related person, knowing him or her to be within said degree of relationship, the person so offending shall be deemed guilty of incest."); Ind. Code [section] 35-46-1-3 (2013) ("A person eighteen (18) years of age or older who engages in sexual intercourse or deviate sexual conduct with another person, when the person knows that the other person is related to the person biologically ... commits incest."). Some states, like Connecticut, also criminalize sexual contact between certain family members unrelated by blood, like stepparents and stepchildren. Conn. Gen. Stat. Ann. [section][section] 53a- 71(a)(4) (West 2012). -73a(a)(1)(A)(B) (West 2012). See infra notes 396-404 and accompanying text.
(392) In Connecticut, status restrictions on employer-employee sex release when the employee is eighteen or older. Conn. Gen. Stat. Ann. [section] 53a-71 (a)(10) (West 2012). Some (but not all) restrictions on teacher-student and coach-student relations release when the student reaches the age of majority. Conn. Gen. Stat. Ann. [section] 53a-71(a)(9) (West 2012) ("A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... the actor is a coach in an athletic activity or a person who provides intensive, ongoing instruction and such other person is a recipient of coaching or instructions from the actor and ... is a secondary school students and receives such coaching or instruction in a secondary school setting, or ... is under eighteen years of age.").
(393) See, e.g., Schulhofer, supra note 24, at 195-201; see also infra note 395.
(394) See, e.g., Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703 (2000). Oberman also argues that age of consent laws are necessary to check peer coercive or unwanted sex. Id. at 717-28, 775-78. For less paternalistic proposals to reach peer coercive or unwanted sex, see, for instance, Fischel, supra note 267, at 300-31; Phipps, supra note 75, at 438 40.
(395) On what sorts of relations of dependence might be reasonably subject to heightened regulations on sex, and why, see Schulhofer, supra note 24, at 168-253; see also Fischel, supra note 267, at 318.
(396) Conn. Gen. Stat. Ann. [section] 53a-70(a)(2) (West 2015).
(397) Conn. Gen. Stat. Ann. [section][section] 53a-71(a)(1), -73a(a)(l)(E) (West 2012).
(398) Conn. Gen. Stat. Ann. [section][section] 53a-71 (a)(4), -73a(a)(l)(A)(B) (West 2012).
(399) Conn. Gen. Stat. Ann. [section][section] 53a-71(a)(5), -73a(a)(l)(F) (West 2012).
(400) Conn. Gen. Stat. Ann. [section][section] 53a-71(a)(6), -73a(a)(4) (West 2012).
(401) Conn. Gen. Stat. Ann. [section][section] 53a-71 (a)(8), -73a(a)(6) (West 2012).
(402) Conn. Gen. Stat. Ann. [section][section] 53a-71 (a)(9), -73a(a)(7) (West 2012).
(403) Conn. Gen. Stat. Ann. [section][section] 53a-71(a)(10), -73a(a)(8) (West 2012).
(404) Connecticut General Statute [section] 53a-72a(a)(2) prohibits sexual intercourse between persons who know that they are related within any of the following degrees: parent, grandparent, child, grandchild, sibling, parent's sibling, sibling's child, stepparent, or stepchild. Conn. Gen. Stat. Ann. [section] 53a-72a(a)(2) (West 2012).
(405) Cases were extracted from a LexisNexis search on March 1, 2015. An initial search yielded 214 unique cases heard by the Connecticut Appellate Court between January 1, 2010 and March 1, 2015, all of which contained the phrase "sexual assault." Of these, 39 appeals were excluded from analysis: they were duplicate cases or appeals of jury trials that referenced "sexual assault" but sexual assault was immaterial to the issue of law. The remaining 175 cases were coded and analyzed. 9.1% of cases involved multiple victims, resulting in a total victim count of 207. For a more extensive overview of case data, see infra Appendix.
(406) Michael Planty et al., U.S. Dep't of Justice, Female Victims of Sexual Violence, 1994-20104 (2013).
(407) Howard N. Snyder, Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics, Nat'l Ctr. for Juvenile Justice 10 (2000).
(408) The following relationships were classified as "involving significant dependence and/or power imbalance" for this analysis: intimate relationships (spouse, former spouse, partner, former partner), familial and semifamilial relationships (father, uncle, grandfather, other family member, other legal guardian, stepfather, mother's boyfriend/intimate partner), caretaking relationships (babysitter, teacher or coach, other caretaker), coworker/employer, and client (for sex workers).
(409) See, e.g., Conn. Gen. Stat. Ann. t; 53a-73a (West 2012).
(410) See infra Appendix, Tbl. A.3 for a complete review of all relationships between perpetrators and victims.
(411) See State v. Lanasa, 62 A.3d 572 (Conn. App. Ct. 2013) (involving the assault of a fifteen-year-old boy by his high school classmate's mother); supra note 404. There are limited data on the prevalence of female perpetration of sexual assault. Research indicates that female perpetration of sexual assault is underreported, in part due to gendered stereotypes that construe perpetration as male and victimhood as female, and in part due to the legacy of rape laws that required penetrative, heterosexual intercourse as an element of the crime. See, e.g., Ctr. for Sex Offender Mgmt., U.S. Dep't of Justice, Female Sex Offenders (2007). Despite our highlighting the frequent offending of fathers and mothers' boyfriends, the expanded status restrictions that we propose would apply to perpetrators and victims of all genders.
(412) Cohabitation with an unmarried intimate partner is increasingly common in the United States, where the rates of unmarried parenthood (24% in 2013, compared to less than 10% in 1960) have increased as rates of marriage have fallen (close to 70% in 1960, compared to 50.5% in 2012). See Andrew L. Yarrow, Falling Marriage Rates Reveal Economic Fault Lines, N.Y. Times, Feb. 6, 2015, http://www.nytimes.com/2015/02/08/ fashion/weddings/falling-marriage-rates-reveal-economic-fault-lines.html [http://perma.cc/KL75-Z8J7]; Emily Badger, The Unbelievable Rise of Single Motherhood in America over the Last 50 Years, Wash. Post, Dec. 18, 2014, https://www.washingtonpost.com/news/wonk/wp/2014/12/18/the- unbelievable-rise-of-singlemotherhood-in- america-over-the-last-50-years/ [http://perma.cc/36RU-4ARV]. Given this trend--whereby mothers' boyfriends may inhabit transient or permanent paternal roles, cohabiting in ways that involve financial and emotional resource-sharing similar to marital cohabitation--the incongruity in status restrictions between mothers' boyfriends (unmarried parents' partners) and spouses/parents is anachronistic.
(413) See supra note 404.
(415) See supra notes 81-83 and accompanying text.
(416) See supra notes 103-106 and accompanying text.
(417) See supra notes 264-269 and accompanying text. But see Downing, supra note 268. In a similar vein, Sarah Conly argues that the state ought to prevent persons from engaging in forms of conduct that contravene their own best interests. However, she claims her advocacy for (selective, consequentially justified) coercive paternalism counters the normative and cultural primacy of autonomy. But insofar as "a coercive action might protect an individual's freedom in the long run," her critique against the conventional understanding of autonomy might buttress our reconstruction. Sarah Conly, Against Autonomy: Justifying Coercive Paternalism 151 (2013).
(418) Only one of the 175 appellate cases we surveyed involves a charge under Connecticut General Statute [section] 53a-71(a)(3), the "physically helpless" standard. See State v. Joseph, 93 A.3d 1174 (Conn. App. Ct. 2014). Another involves Connecticut General Statute [section] 53a-71(a)(2), the former "mentally defective " standard, now the "impaired because of mental disability or disease" standard. See State v. Dickerson, 97 A.3d 15 (Conn. App. Ct. 2014).
(419) Only three of the 175 appellate cases we surveyed involve a victim whose disability is referenced in court documents. In all three cases, the perpetrator was aware of the victim's disability. See State v. Carolina, 69 A.3d 341 (Conn. App. Ct. 2013) (involving the assault of a teenage girl with unidentified "cognitive disabilities" by her non-biological uncle); State v. Dearing, 34 A.3d 1031 (Conn. App. 2012) (involving the assault of a nine-year-old girl with "pervasive developmental disorder not otherwise specified" by an adult family friend); Di Teresi v. Stamford Health Sys., Inc., 63 A.3d 1011 (Conn. App. 2013) (involving the assault of a ninety-two-year-old woman with "dementia, advanced Alzheimer's disease, Parkinson's disease, and other ailments" by a nurse's assistant while the victim was hospitalized at Stamford Hospital).
(420) See State v. Fourtin, 982 A.2d 261, 263 (Conn. App. Ct. 2009) ("The defendant, who was the boyfriend of the complainant's mother, lived nearby. He frequently assisted the mother in caring for the complainant. The complainant got along with him.").
(421) Id. at 264 ("She cannot walk and needs assistance in performing the daily activities of living."). See also Fourtin, 52 A.3d at 679 ("[T]he prosecutor argued that the jurors could find that she was [physically helpless] because, like an infant, '[s]he is totally dependent on others.'"); id. at 678 (noting that S, L.K.'s mother, "took her to the shower"). The Court cites similar testimony from the caregivers and supervisors at L.K.'s adult day care program, on whom she is dependent when not at home with her mother. Id. at (695-96-Norcott, J., dissenting).
(422) See Robert McRuer, Compulsory Able-Bodiedness and Queer/Disabled Existence, in Disability Studies: Enabling the Humanities 88, 88 (Sharon L. Snyder, Brenda Jo Brueggemann & Rosemarie Garland-Thompson eds., 2002) [hereinafter McRuer, Compulsory]', European Disability Forum, "A world made for disabilities," YouTube (Jan. 30, 2008), https://www.youtube.com/watch?v=RsuKxY_9f_8 [http://perma.cc/2WZ7-AMK5].
(423) Christian Smith, To Flourish or Destruct: A Personalist Theory of Human Goods, Motivations, Failure, and Evil 248 (2015).
(424) Sandra L. Martin et al., Physical and Sexual Assault of Women with Disabilities, 12 Violence Against Women 823, 834 (2006); see also Carri Casteel et al., National Study of Physical and Sexual Assault among Women with Disabilities, 14 Injury Prevention 87, 90 (2008). For a meta-analysis of studies comparing rates of abuse among disabled and nondisabled women, see Sara-Beth Plummer & Patricia A. Findley, Women with Disabilities' Experience with Physical and Sexual Abuse: A Review of the Literature and Implications for the Field, 13 Trauma Violence & Abuse 15 (2012).
(425) Carlene Wilson & Neil Brewer, The Incidence of Criminal Victimisation of Individuals with an Intellectual Disability, 27 Australian Psychologist 114, 115 (1992).
(426) Dick Sobsey & Tanis Doe, Patterns of Sexual Abuse and Assault, 9 Sexuality & Disability 243, 247 (1991).
(427) Id. at 248. For example, disability service providers (e.g., personal care attendants, psychiatrists, residential care staff) comprised 27.7% of perpetrators, specialized transportation providers 5.4%, and specialized foster parents 4.3%.
(428) Id. For example, family members comprised 16.8%, paid service providers (e.g., babysitters) comprised 9.8%, and step-family members comprised 2.2%.
(429) Margaret A. Nosek et at., Disability, Psychosocial, and Demographic Characteristics of Abused Women with Physical Disabilities, 12 Violence Against Women 838, 846 (2006); see also Gill, supra note 13, at 33-34.
(430) Finger, supra note 329.
(431) See infra Part III.C.
(432) See supra note 427.
(433) For a similar argument regarding sex between minors (for which affirmative consent would provide an affirmative defense), see Heidi Kitrosser, supra note 368, at 330-31. Of course, this solution would not solve the problem if the caretaker accused of sexual assault is the person facilitating the alleged victim's affirmative consent. See Daniel Engber, The Strange Case of Anna Stubblefield, N. Y. Times Mag., Oct. 20, 2015, http://www.nytimes.com/2015/10/25/magazine/the-strange-case-of-anna- stubblefield.html?_r=0 [http://perma. cc/RM2J-K4RG]; see also Boni-Saenz, supra note 15, at 1239, 1245.
(434) Denno, supra note 316, at 355-59; see also supra notes 340-345 and accompanying text; supra notes 378-387 and accompanying text.
(435) Denno, supra note 316, at 371 (internal citation omitted).
(436) Id. at 372.
(437) Id. (emphases added) (internal citation omitted). In State v. Dearing, 34 A.3d 1031 (Conn. App. 2012), the defendant argued that the trial court abused its discretion by allowing the nine-year-old victim to testify, on the grounds that she was incompetent (due to her "pervasive developmental disorder not otherwise specified"). The trial court judgment was affirmed, and Dearing's claims rejected. The very "incompetence" Dearing exploited sexually, he then attempted to exploit legally.
(438) See supra note 419. Expanding status restrictions (to reach parents' partners, or disabled persons' professional caretakers) and rendering affirmative consent an affirmative defense to sexual activity between a caretaker and a disabled client both become rather complicated--or perhaps rather uncomplicated--when the caretaker is already a long-term intimate partner (such as a spouse) of the disabled client. In these scenarios, a "contextual approach" would be presumptively favorable toward, say, the husband of the alleged victim and presumptively unfavorable toward, say, the alleged victim's mother's boyfriend. In the spring of 2015, an Iowa jury found a man not guilty of sexually assaulting his wife, an Alzheimer's patient. The jury rejected both of the prosecutor's claims: that the couple had sexual contact on the date in question and that the defendant's wife was mentally incapable of consenting to sexual activity. See Pam Belluck, Iowa Man Found Not Guilty of Sexually Abusing Wife with Alzheimer's, N.Y. Times, Apr. 22, 2015, http://www.nytimes.com/2015/04/23/health/iowaman-found- notguilty-of-sexually-abusing-wife-with-alzheimers.html [http://perma.cc/8FSS-SJ3S]; Tony Leys & Grant Rogers, Rayhons: 'Truth finally came out' with not guilty verdict, Des Moines Reg., Apr. 22, 2015, http://www.desmoinesregister.com/story/news/crime- and-courts/2015/04/22/henry-ray honsacquittedsexual-abuse/26105699 [http://perma.cc/Y7S6-UB6U].
(439) State v. Fourtin, 982 A.2d 261, 263 (Conn. App. Ct. 2009) ("The defendant, who was the boyfriend of the complainant's mother, lived nearby. He frequently assisted the mother in caring for the complainant. The complainant got along with him."). However, perspicacity to the spectrum of ability troubles any certitude of the Fourtin facts: "Although the defendant was arrested in 2006, his trial was postponed because he was found incompetent to stand trial at that time. The trial commenced two years later, when he was found to have been restored to competency after a period of commitment to Connecticut Valley Hospital." Id. at 263.
(440) A non-policy recommendation that we do not consider but strenuously support is a shift in cultural representation. Too often, persons with disabilities are represented as either asexual or as a fetishistic subgenre. See Mollow, supra note 27, at 286. But see The Sessions (Fox Searchlight 2012). The available representational trope for persons with disabilities is almost always what the late disability rights activist Stella Young termed "inspiration pom": motivation for the rest of us (if she can do it, I have no excuse....). Stella Young, I'm not your inspiration, thank you very much, TEDxSydney (Apr. 2014), http://www.ted.com/ talks/stella_young_i_m_not_your_inspiration_thank_you_very_much?language=en#t- 7303 [http://perma.cc/ ETJ6-PGX3], Were sexual activity and intimacies across the ability spectrum represented benignly, or were the sexual skills of quadriplegics or persons with tracheotomies celebrated in mass media, we imagine sexual culture would be far more hospitable, creative, and pleasurable. See Siebers, supra note 27, at 48-50. Certainly too, transformations in material relations and institutional practices (base) would expand repertoires of representation (superstructure). See Charlton, supra note 218, at 27.
(441) See, e.g., Appel, supra note 328; Block, supra note 304; Denno, supra note 316, at 332-59. But see Michel Desjardins, The Sexualized Body of the Child: Parents and the Politics of 'Voluntary' Sterilization of People Labeled Intellectually Disabled, in Sex and Disability, supra note 27, at 69, 73 (observing that the parents of persons with disabilities whom the author interviewed did not "asexualize" their children but were instead concerned with their children producing offspring).
(442) See Mollow, supra note 27, at 286.
(443) Id.; see also Denno, supra note 316, at 33-34; Finger, supra note 329. In one study, forty percent of intellectually disabled women surveyed had never received any education regarding gynecologic and/or reproductive health. C.A. Kopac, J. Fritz & R.A. Holt, Gynecologic and Reproductive Services for Women with Developmental Disabilities, 2 Clin. Excell. Nurse Pract. 88 (1998).
(444) See Carlson, supra note 158, at 53-83; Denno, supra note 316, at 334; see also Kulick & Rydstrom, supra note 27, at 164-73; Finger, supra note 329.
(445) See Denno, supra note 316, at 333-34.
(446) See Kulick & Rydstrom, supra note 27, at 164-71. This concern also manifests in "menstrual manipulation"--the use of clinical methods, like contraceptives, to alter the symptoms and experiences associated with menstruation or suppress menstruation altogether in young people with disabilities. In some cases, the young person may desire relief from menstrual inconveniences, general (such as dysmenorrhea, painful cramps, or muscle pains) and/or associated with one's disability (such as heavy or irregular bleeding associated with certain developmental disabilities or difficulty utilizing conventional sanitary products with physical mobility limitations). However, clinical guidelines released by the American College of Obstetricians and Gynecologists and the Society of Obstetricians and Gynaecologists of Canada suggest that caretakers' and parents' anxieties about the complications of menstruation and disability more commonly motivate menstrual manipulation. See Y.A. Kirkham et al., SOGC Clinical Practice Guideline: Menstrual Suppression in Special Circumstances, 36 J. Obstetric Gynaecology Can. 915 (2014); Am. Coll, of Obstetricians & Gynecologists, Menstrual Manipulation for Adolescents with Disabilities, 448 ACOG Committee Opinion 1 (2009); I. Savasi et al., Menstrual Suppression for Adolescents with Developmental Disabilities, 22 J. Pediatric Adolescent Gynecology 143 (2009).
In a study conducted in Quebec, Michel Desjardins finds that parents of teenagers and young adults with intellectual disabilities persuade their children, through a host of strategies, to "elect" sterilization as the tradeoff for sexual activity. Parents are foremost concerned that their children are not "capable of carrying out the role of parent." Desjardins, supra note 441, at 77. In these scenarios, it is the semblance of consent, rather than incapacity to consent, that is morally (and legally) transformative. Id. at 80- 81.
(447) See Kulick & Rydstrom, supra note 27, at 120-34; Finger, supra note 329; Siebers, supra note 27, at 43-46.
(448) See, e.g., Mairs, supra note 383; O'Brien, supra note 329; Murderball (ThinkFilm 2005); Tim Dean, Stumped, in The Porn Archives 420 (Tim Dean, Steven Ruszczycky & David Squires eds., 2014). As Kulick and Rydstrom put it bluntly, persons with severe disabilities, often but not always intellectual, "write no poems" (primarily referencing Mark O'Brien) and "throw no balls" (primarily referencing the rugby players of Murderball, id.). Kulick & Rydstrom, supra note 27, at 16. "These kinds of significantly disabled adults," they insist, "are the ones who need the most help in exploring their sexuality." Id. at 3.
(449) Siebers, supra note 27, at 38 43.
(450) See generally id.
(451) Id. at 39.
(452) However, Siebers' essay shares intellectual and political affinity with Lauren Berlant & Michael Warner, Sex in Public, 24 Critical Inquiry 547 (1998).
(453) Siebers, supra note 27, at 39 40.
(454) Berlant & Warner, supra note 452, at 557.
(455) Appel, supra note 328, at 153; Gill, supra note 13, at 39.
(456) Siebers, supra note 27, at 45.
(457) Id. at 47; see also Kulick & Rydstrom, supra note 27, at 293 (approving group home policies and practices that make sex a "legitimate and welcome topic of discussion and concern").
(458) Siebers, supra note 27, at 45-46; see also Schulhofer, supra note 24, at 99.
(459) See Satz, supra note 27, at 554-68.
(460) On the importance of cross-sectorial accommodation reforms for persons with (and without) disabilities, see Satz, supra note 27, at 541-50.
(461) Shuttleworth, supra note 158, at 185.
(462) Id. at 185-88.
(463) Id. at 189-92. "Those men, however, who did not view hegemonic masculinity as a total index of their desirability ... could better stand rejection and ... were able to cultivate significantly more successful sexual relationships than those who could not." Id. at 190-91.
(464) Id. at 178. Amy Swango-Wilson suggests that liberalizing parents' and caretakers' attitudes regarding sexuality and disability may improve the sexual lives and opportunities of their dependents. Amy Swango-Wilson, Caregiver Perceptions and Implications for Sex Education for Individuals with Intellectual and Developmental Disabilities, 26 Sex & Disability 167, 172-74 (2008) [hereinafter Swango-Wilson, Caregiver Perceptions].
(465) See Young, supra note 440. Kulick and Rydstrom criticize Shuttleworth and others for banking too much of their sexual rights agenda on access. Physical access to various sexualized spaces (e.g., dance clubs) is inadequate if not outright irrelevant for persons whose mobility and/or cognition is severely limited. And pressures of gender expectations and desirability norms endured by disabled persons may be different in degree, but not kind, from pressures endured by nondisabled persons. Kulick & Rydstrom, supra note 27, at 19-22. While access, institutional or representational, is variably important across the spectrum of ability, surely lowering barriers should be componential of, even if not comprehensive for, fostering the sexual autonomy of persons with disabilities. Expanding access is necessary but not sufficient.
(466) Some of this subsection has been adapted from Joseph J. Fischel, A More Promiscuous Politics: LGBT Rights without the LGBT Rights, in After Marriage Equality: The Future of LGBT Politics (Carlos Ball ed., 2016) (forthcoming).
(467) See Sexuality Information and Education Council of the United States (SIECUS), A Brief History of Federal Funding for Sex Education and Related Program, SIECUS (2011), http://www.siecus.org/index. cfm?fuseaction=page. viewPage&pageID= 1341 &nodeID= 1 [http://perma.cc/C8S9- 4NPG].
(468) Id.', see also Michelle Fine & Sara I. McClelland, Sexuality Education and Desire: Still Missing After All These Years, 76 Harv. Ed. Rev. 297, 307 (2006).
(469) See SIECUS, supra note 467.
(470) Id.; see also Fine & McClelland, supra note 468, at 309-13; Patrick Malone & Monica Rodriguez, Comprehensive Sex Education v. Abstinence-Only-Until-Marriage Programs, 38 A.B.A. Hum. Rts. Mag. (2011), http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_ vol38_2011/human_ rights_spring2011 /comprehensive_sex_education_vs_abstinence_only_until_marriage_programs.html [http://perma.cc/SY7B-492V].
(471) See Nancy Kendall, The Sex Education Debates 151-223 (2013); Fine & McClelland, supra note 467, at 309-11; Rose Grace Grose, Shelly Grabe & Danielle Kohfeldt, Sexual Education, Gender Ideology, and Youth Sexual Empowerment, 51 J. Sex Res. 742, 749 (2014) (finding that "hegemonic masculinity ideology," linked to "traditional attitudes toward women," was significantly negatively associated with "safer contraceptive beliefs" among youth participating in a sex education program); infra note 430. But see also Sharon Lamb, Kelly Graling & Kara Lustig, Stereotypes in Four Current Sexuality Education Curricula: Good Girls, Good Boys, and the New Gender Equality, 6 Am. J. Sexuality Edu. 360, 373-74 (2011) (finding that stereotypes of male aggression and female passivity have remained but subsided in AOUM sexuality education curricula while stereotypes of girls as manipulators and temptresses have surfaced.).
(472) See SIECUS, supra note 467.
(473) Abstinence-plus education programs "aim to prevent, stop, or decrease sexual activity; however, programs also promote condom use and other safer-sex strategies as alternatives for sexually active participants. Abstinence-plus programs differ from abstinence-only interventions, which promote abstinence as the exclusive means of HIV prevention without encouraging safer sex." K. Underhill, P. Montgomery & D. Operario, Abstinence-plus Programs for HIV Infection Prevention in High-Income Countries, 4 Evid.-Based Child Health 400, 409 (2009). See also Kendall, supra note 471, at 7-8; Alexandra Sifferlin, Why Schools Can't Teach Sex Ed, Time (2014), http://time.com/why-schools-cant-teach-sex-ed [http://perma.cc/U2R8F2AF],
(474) Sifferlin, supra note 473.
(475) See Kendall, supra note 471, at 6-7, 225-31; Sharon Lamb, The Place of Mutuality and Care in Democratic Sexuality Education: Incorporating the Other Person, in Sexuality & Youth Culture 29, 31-33 (Dennis Carlson & Donyell L. Roseboro eds., 2011). However, "[s]ex education that meaningfully incorporates a discussion of homosexuality, asexuality, and bisexuality is rare, especially in special education classrooms." Gill, supra note 13, at 49.
(476) Al Vernacchio, For Goodness Sex: Changing the Way We Talk to Teens About Sexuality, Values, and Health x (2014).
(477) See Kendall, supra note 471, at 228-33; see generally Jessica Fields, Risky Lessons: Sex Education and Social Inequality (2008).
(478) Vernacchio, supra note 476, at 10; see also Gill, supra note 13, at 81.
(479) See, e.g., Dannielle Owens-Reid & Kristin Russo, How to Talk to Your Gay Teen About Sex, Time, http://time.eom/why-schools-cant-teach-sex-ed/#how-to-talk-to-your-gay-teen- about-sex [http://perma.ee/ 2WTH-YFJF]; Fine & McClelland, supra note 468, at 325-28.
(480) See generally Vernacchio, supra note 476; see also Fine & McClelland, supra note 468, at 326; Sharon Lamb & Zoe D. Peterson, Adolescent Girls' Sexual Empowerment: Two Feminists Explore the Concept, 66 Sex Roles 703, 710 (2012); McRuer, Disabling Sex, supra note 14. Recent research suggests that sex education programs which interrogate the impact (and intersection) of gender and power on sexuality and sexual experience are five times more likely than other programs to reduce rates of STIs (including HIV) and unintended pregnancy. See Nicole A. Haberland, The Case for Addressing Gender and Power in Sexuality and HIV Education: A Comprehensive Review of Evaluation Studies, 41 Int'l. Persp. on Sexual & Reprod. Health 31 (2015); see also Editorial, To Prevent Sexual Assault, Start Early, N.Y. Times, Jul. 14, 2015, http://www.nytimes.com/2015/07/14/opinion/to-prevent-sexual-assault-start- early.html [http://perma.ee/UB8G-UZ2L] ("Researchers are also studying whether teaching students about sexual health reduces the risk of assault. Some educators believe that it does and that students should learn not just about preventing pregnancy and diseases but also about how to decide when they want to have sex and how to respect other people's decisions.").
(481) Vernacchio, supra note 476, at 71-102; see also Lamb, supra note 475.
(482) See E. Dukes & B.E. McGuire, Enhancing Capacity to Make Sexuality-Related Decisions in People with an Intellectual Disability, 53 J. Intellectual Disability Res. 727 (2009); Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sex & Disability 113 (2011) [hereinafter Swango-Wilson, Meaningful Sex], see also Nussbaum, Frontiers, supra note 25, at 190-91.
(483) Swango-Wilson, Caregiver Perceptions, supra note 464, at 168-69 ("Current sex education courses do not utilize information identified by individuals with [intellectual disabilities] as helpful in the development of sex education programs."); Swango-Wilson, Meaningful Sex, supra note 482, at 117-18 (finding that her intellectually disabled informants wished to learn about friendships, relationships and marriage, and "safe intimacy" from sexuality education programs. Her informants also proposed methods of knowledge acquisition, such as instructional videos and guest lecturers and insisted that caretakers receive tailored sexual education as well); Michelle A. Whitehouse & Marita P. McCabe, Sex Education Programs for People with Intellectual Disability: How Effective Are They?, 32 Educ. & Training Mental Retardation & Developmental Disabilities 229, 230 (1997).
(484) See Nussbaum, Frontiers, supra note 25, at 188, 190-91, 202.
(485) See Gill, supra note 13, at 69-78; Poul Rohleder & Leslie Swartz, Providing Sex Education to Persons with Learning Disabilities in the Era of HIV/AIDS: Tensions between Discourses of Human Rights and Restriction, 14 J. Health Psych. 601, 608 (2009) (arguing that because of educators' preconceptions about persons' with disabilities sexual unruliness and/or sexual vulnerability, "sexuality education ... can be used as a means to prevent sexual expression in disabled people"); Whitehouse & McCabe, supra note 483, at 234-37 (1997) ("Few programs have been concerned with the enhancements of positive attitudes toward sexuality.").
(486) See, e.g., Mayumi Hayashi, Mikako Arakida & Kazutomo Ohashi, The Effectiveness of a Sex Education Program Facilitating Social Skills for People with Intellectual Disability in Japan, 36 J. Intell. & Developmental Disability 11, 17-18(2011).
(487) Id. at 14-15.
(488) Dukes & McGuire, supra note 482, at 727-32 (finding that three of four intellectually disabled participants maintained their knowledge of sexual safety practices six months after the researchers' intervention; all four participants' knowledge of physical/sexual functioning and of "choices and consequences in sexual matters"-remained greater than when measured pre-intervention).
(489) See, e.g., Monica Cuskelly & Rachel Bryde, Attitudes towards the Sexuality of Adults with an Intellectual Disability: Parents, Support Staff, and a Community Sample, 29 J. Intell. & Developmental Disability 255, 256 (2004); Swango-Wilson, Meaningful Sex, supra note 482, at 114. But see Whitehouse & McCabe, supra note 483, at 232, 235-36 ("[T]here is no evidence that sex education does in fact decrease the vulnerability to people [sic] with intellectual disabilities to sexual assault.").
(490) See, e.g., Swango-Wilson, Meaningful Sex, supra note 482, at 114 ("Education has the potential to encourage positive sexuality, promote the decision-making capabilities about that sexuality and empower the individual with [intellectual/developmental disabilities] to act on their decisions.") (emphasis added).
(491) State v. Fourtin, 52 A.3d 674, 695 (Conn. 2012) (Norcott., J., dissenting) ("[T]he victim had never received any kind of sex education--either from [her mother] or from any of her schools or care programs.").
(492) Id. at 678-79, 679 n.11.
(493) Id. at 691 n.8, 695 (Norcott, J., dissenting).
(494) See Cuskelly & Bryde, supra note 489, at 256; Swango-Wilson, Caregiver Perceptions, supra note 464, at 167-68.
(495) McRuer, Compulsory, supra note 422.
(496) See, e.g., Fine & McClelland, supra note 468, at 300.
[Adolescent desire] has been splashed all over MTV, thoroughly commodified by the market, and repetitively performed in popular culture. A caricature of desire itself is now displayed loudly, as it remains simultaneously silent .... Today we can "google" for information about the average young woman's age of "sexual debut," if she used a condom, got pregnant, the number of partners she had, if she aborted or gave birth, and what the baby weighed. However, we don't know if she enjoyed it, wanted it, or if she was violently coerced. Little has actually been heard from young women who desire pleasure, an education, freedom from violence, a future, intimacy, an abortion, safe and affordable child care for their babies, or health care for their mothers.
Id. (internal citations omitted).
(497) Our suggestion for more robust, feminist sexuality education for persons with or without disabilities is not naive to the power relations and asymmetric identity formations produced through practices of schooling. For a Foucauldian historical analysis of the ways medical experts and institutions have arrogated power through variable constructions of the educable "idiot," see Carlson, supra note 158, at 36-45. If no social practice is purified of power, some practices are better than others; sexual autonomy is our ethical barometer.
(498) See Mala de la Baume, Disabled People Say They, Too, Want a Sex Life and Seek Help in Attaining It, N.Y. Times, Jul. 4, 2014, http://www.nytimes.com/2013/07/05/world/europe/disabled-people-say-they-toowant- a- sexlife-and-seek-help-in-attaining-it.html?_r=0 [http://perma.ee/ZC5M-8F6E].
Prostitution is illegal across the United States., save several counties in Nevada. Barbara G. Brents, Nevada's Legal Brothels Make Workers Feel Safer, N.Y. Times, Jan. 23, 2014, http://www.nytimes.com/ roomfordebate/2012/04/19/is-legalized-prostitution-safer/nevadas-legal-brothels- make-workers-feel-safer [http://perma.cc/74QU-GU9A]. However, sexual assistants hired under the auspices of therapy or surrogacy makes the legality of such practices uncertain: "The legal status of surrogate partners is undefined in most of the United States and most countries around the world. This means that there are generally no laws regulating the profession." International Professional Surrogates Association, Legal Status, IPSA, http://www. surrogatetherapy.org/legal-status [http://perma.cc/V32V-7CR7].
Committed to a relationally reconstructed concept of sexual autonomy, and cognizant of the perils of black and grey market commercial sex, we support the decriminalization (and/or legalization) of sex work generally, not only the legalization of sexual assistance for individuals with disabilities. See infra notes 531-32 and accompanying text.
(499) See Appel, supra note 328, at 152.
(500) See supra note 375 and accompanying text.
(501) See Denno, supra note 316, at 387. But see Appel, supra note 328, at 153.
(502) See infra notes 512-516, 519-526, and accompanying text.
(503) Kulick & Rydstrom, supra note 27.
(504) Id. at 4, 17-18.
(505) Id. at 79-80.
(506) Id. at 90, 232-40.
(507) Mat 15-19.
(508) Kulick & Rydstrom, supra note 27, at 18.
(509) Id. at 101-05.
(510) On the insufficiencies (or more precisely, nonexistence) of United States public and institutional policies regarding the sexuality of persons with disabilities, see Shuttleworth, supra note 353, at 4-6; see also Siebers, supra note 27, at 45 ("Group homes and long-term care facilities purposefully destroy opportunities for disabled people to find sexual partners or to express their sexuality."); infra note 525.
(511) Kulick & Rydstrom, supra note 27, at 126-27. However, Michael Gill cautions that prescribing masturbation for persons with disabilities may function to diminish or discredit possibilities for sex. If severed from an integrative, sex-positive approach, "[m]asturbation training becomes a disciplinary tool" exercised by caretakers to contain rather than promote intimacy and sexuality. Gill, supra note 13, at 95.
(512) Kulick & Rydstrom, supra note 27, at 106, 116.
(513) Id. at 106.
(514) Mat 106.
(515) Id. at 104-05.
(516) Id. at 106.
(517) See Dukes & McGuire, supra note 482, at 732. Perhaps sexual autonomy, relationally reconstructed, might be conceived as a "fertile functioning" that promotes other capabilities, like affiliation and imagination. On "fertile functioning," see Jonathan Wolf & Avner de-Shalit, Disadvantage 133- 54 (2007).
(518) Kulick & Rydstrom, supra note 27, at 116.
(519) See Denno, supra note 316, at 384-93 (chronicling several cases in which assistants and social workers intervened to help persons with significant intellectual disabilities have sex. Caretakers continually gauge--and sometimes instruct patients how to legibly express--wantedness and unwantedness.).
(520) Kulick & Rydstrom, supra note 27, at 97-112.
(521) Id. at 91.
(524) Id. at 98-101, 111.
(525) Kulick & Rydstrom, supra note 27, at 111.
(526) Id. at 100.
(527) Id. at 108-09. For a closer-to-home example of facilitating sex for the elderly (with or without diagnosed disabilities), see Robin Dessel & Mildred Ramirez, Hebrew Home at Riverdale, Policies and Procedures Concerning Sexual Expression at the Hebrew Home at Riverdale (1995), http://www.riverspringhealth.org/ files/sexualexpressionpolicy.pdf [http://perma.cc/R4SU-KVSK] (stipulating the sexual rights of Hebrew Home residents and the responsibilities of Hebrew Home staff to facilitate residents' sexual expression); see also Pam Belluck, Sex, Dementia, and a Husband on Trial at Age 70, N.Y. Times, Apr. 13, 2015, http://www.nytimes. com/2015/04/14/health/sex-dementia-and-a-husband-henry-rayhons-on-trial-at-age- 78.html [http://perma.ee/ 3J7J-AJ2M] ("Yet many nursing homes have no sexual intimacy policy.... An exception is the Hebrew Home, where staff members are asked to assess consent with nonverbal cues, to note a resident's mood after sex, and to pose questions like: 'Do you enjoy sexual contact?,' 'Do you know what it means to have sex?,' and 'What would you do if you wanted it to stop?"').
(528) Kulick & Rydstrom, supra note 27, at 4, 101-02, 202.
(529) Wat 174-216.
(530) Id. at 24, 179.
(531) Id. at 185. On the ways intimacy is mediated and brokered in contemporary commercial sex markets, see generally Elizabeth Bernstein, Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex (2007); see also Johns, Marks, Tricks and Chickenhawks: Professionals & Their Clients Writing about Each Other (David Henry Sterry & R.J. Martin, Jr. eds., 2013). Frequently, clients (mostly men) who purchase sexual services desire romantic and/or emotional connection in addition to (or instead of) sex. See, e.g., Christine Milrod & Ronald Weitzer, The Intimacy Prism: Emotion Management among the Clients of Escorts, 15 Men & Masculinities 447 (2012); Teela Sanders, Male Sexual Scripts: Intimacy, Sexuality, and Pleasure in the Purchase of Commercial Sex, 42 Sociology 400 (2008).
Debates about commercial sex polarize around the question of whether sex work is (a) exploitative, patriarchal, and "bad" or (b) radical, world-making, and "good." From the infamous Sex Wars of the 1980s to current global campaigns to end human trafficking, these debates obscure the diversity of experience in the sex industry and are generally irrelevant to the development of laws and policies ensuring the safety and economic stability of sex workers. This dominant discourse "is disconcerting to those ... who find themselves in sympathy with elements of both 'sides' of the debate, and yet also feel that it is the wrong debate to be having about prostitution." Julia O'Connell Davidson, The Rights and Wrongs of Prostitution, 17 Hypatia 84 (2002); see also Julia O'Connell Davidson, Will the Real Sex Slave Please Stand Up?, 83 Feminist Rev. 4 (2006).
(532) Kulick & Rydstrom, supra note 27, at 196-200. Existing criminal penalties for offenses related to sex work--e.g., prostitution, solicitation, "commercial vice"--tend to depress sex workers' autonomy, sexual and otherwise. Criminalization impedes sex workers' ability to control the conditions under which their work takes place, and, accordingly, their capability to codetermine the conditions of their relations with clients. Criminal penalties and state surveillance often prevent sex workers from mitigating their exposure to harm (e.g., carrying condoms, reporting abusive client behavior to authorities, and working with other sex workers rather than in isolation). See, e.g., Acacia Shields, Criminalizing Condoms: How Policing Practices Put Sex Workers and HIV Services at Risk in Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe, Open Soc'y Found. (2012), http://www.opensocietyfoundations.org/sites/default/files/criminalizing-condoms- 20120717. pdf [http://perma.cc/3LBQ-KMR2]; Nicole Fick, Enforcing Fear: Police Abuse of Sex Workers when Making Arrests, 16 S. Afr. Crime Q. 27 (2006); Jillian Keenan, Sex Workers Don't Deserve to be Raped, Daily Beast, Sep. 27, 2014, http://www.thedailybeast.com/articles/2014/09/27/sex-workers- deserve-protection-from rape-too.html [http://perma.cc/3756-N64P]; Michele R. Decker et al., Human Rights Violations Against Sex Workers: Burden and Effect on HIV, 385 Lancet 186 (2015); see also supra note 498 and accompanying text.
(533) Kulick & Rydstrom, supra note 27, at 182-83.
(534) Id. at 287.
(535) Id. at 180-84.
(536) Id. at 207.
(537) Id. at 195.
(538) Kulick & Rydstrom, supra note 27, at 203.
(539) Id. at 203.
(540) Id. at 198-99.
(541) But see supra notes 530-531 and accompanying text.
(542) Kulick & Rydstrom, supra note 27, at 209.
(543) Mat 211.
(544) O'Brien, supra note 329.
(545) See, e.g., Stefania Rousselle, Seeking Sexual Surrogates, N.Y. Times, Jul. 4, 2013, http:/www.nytimes. com/2013/07/05/world/europe/disabled-people-say-they-too-want-a-sex-life-and- seek-help-in-attaining-it. html [http://peima.cc/RK (5) A-FWEJ]. But see O'Brien, supra note (329"What if I ever did meet someone who wanted to make love with me? Wouldn't I feel more secure if I had already had some sexual experience?"); supra note (531) .
(546) See, e.g., Sheila Jeffreys, Disability and the Male Sex Right, 31 Women's Stud. Int'l. Forum 327, 331-44 (2008). But see Kulick & Rydstrom, supra note 27, at 176-77; supra note 531.
(547) See generally Martha C. Nussbaum, "Whether from Reason or Prejudice": Taking Money for Bodily Sendees, 27 J. Legal Stud. 693 (1997).
(548) Id. at 705-06; see supra notes 448, 478-479, and accompanying text; see also Mary Anne Case, Pets or Meat, 80 Chi.-Kent L. Rev. 1129, 1146 (2005).
(549) Kulick & Rydstrom, supra note 27, at 205-07.
(550) Id. at 2; see also Mairs, supra note 383, at 47-54; Siebers, supra note 27, at 39.
(551) See, e.g., de la Baume, supra note 498 ('"If someone is in a wheelchair, I start in the wheelchair,' [a sexual surrogate] said. 'I start playing the game of getting undressed on the wheelchair. It becomes a little like a game.'").
(552) See. e.g., Dean, supra note 448.
(553) Kulick & Rydstrom, supra note 27, at 206.
(554) See generally Mollow, supra note 27; Eve Kosofsky Sedgwick, Epistemology of the Closet 29 (1990).
But to the extent that, as Freud argued and Foucault assumed, the distinctively sexual nature of human sexuality has to do precisely with its excess over or potential difference from the bare choreographies of procreation, "sexuality" might be the very opposite of what we originally referred to as (chromosomal-based) sex: it could occupy, instead, even more than "gender" the polar position of the relational, the social/symbolic, the constructed, the variable, the representational.
(555) Kulick & Rydstrom, supra note 27, at 38.
(556) Id. at 263.
(557) Id. at 264.
(558) See Nussbaum, Frontiers, supra note 25, at 193-95.
(559) See infra Part I.
(560) See supra notes 74-80 and accompanying text.
(561) See supra Part III.C.
(562) See supra Part II.B. 1 and accompanying text.
(563) See supra notes 161-163 and accompanying text.
(564) See supra notes 158-163 and accompanying text.
(565) See supra Part IV.
(566) For an early admonition against the queer theoretic spectacularizing of sex, see generally Biddy Martin, Extraordinary Homosexuals and the Fear of Being Ordinary, 6 Differences 100 (1994). But see Berlant & Warner, supra note 452, at 556-77. For a recent casing of the (sociological) ordinariness of homosexuality, see generally Heather Love, Doing Being Deviant: Deviance Studies, Description, and the Queer Ordinary, 26 Differences 74 (2015).
(567) Kulick & Rydstrom, supra note 27, at 216.
(568) Id. at 295; see also Appel, supra note 328, at 153-54.
(569) Kulick & Rydstrom, supra note 27, at 118, 120, 122; see also Case, supra note 548, at 1146; Nussbaum, Sex, supra note 142, at 706-07.
(570) For a critique of United States federal legislation regarding disability accommodations, see generally Satz, supra note 27.
(571) Relationship classifications marked with (***) are always restricted by existing Connecticut law. Relationship classifications marked with (*) may be restricted by existing law, depending on additional details (e.g., whether the relationship involves consanguinity, whether the victim is under the age of eighteen, whether the relationship involves a legal contract, etc.). See supra notes 405-439 and accompanying text.
Table 1: Most Common Perpetrator/Victim Relationships, Connecticut Appellate Court Sexual Assault Cases, 2010-2015 (410) % of total, excl. % of total relationship not # (n = 205) specified (n = 161) Father 28 13.7% 17.4% Mother's boyfriend/partner 24 11.7% 14.9% Stranger 15 7.3% 9.3% Uncle 11 5.4% 6.8% Stepfather 9 4.4% 5.6% Family friend 8 3.9% 5.0% Other personal acquaintance 8 3.9% 5.0% Grandfather 7 3.4% 4.3% Spouse 6 2.9% 3.7% Other family member 5 2.4% 3.1% Other known adult 5 2.4% 3.1%
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|Title Annotation:||IV. Disabling Consent: Notes for a New Statutory Scheme of Sexual Regulation B. Reforming Sexual Assault Law (for Persons with Disabilities) 2. Capturing Status through Conclusion: The Ordinariness of Sexual Autonomy, with footnotes and appendices, p. 493-528|
|Author:||Fischel, Joseph J.; O'Connell, Hilary R.|
|Publication:||Columbia Journal of Gender and Law|
|Date:||Jul 22, 2015|
|Previous Article:||Disabling consent, or reconstructing sexual autonomy.|
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