Ensuring Consent with Sexual Advance Directives

Updated:
Posted in: Health Law

In the period running up to our presidential election, we were treated to a recording of Candidate Donald J. Trump in which he bragged of having groped women’s private parts. Soon after the recording surfaced, women came forward to confirm that they had been assaulted by Trump in just the way he had described. What made this conduct reprehensible (rather than merely salacious) was the lack of consent. Consent is a key ingredient in a morally (not to mention legally) acceptable sexual interaction. Without it, we have sexual assault; with it, we have the potential for sexual fulfillment.

In a fascinating effort to further the interests of a vulnerable population in pursuing fully consensual sexual encounters, Alexander Boni-Saenz has written a law review article proposing what he calls “sexual advance directives.” These are legal devices through which a competent person provides sexual consent (or designates an agent to provide sexual consent) in advance of an anticipated persistent period of legal incompetence. In this column, I will consider whether sexual advance directives should really be necessary to protect the sexual lives of the persistently cognitively impaired population.

What Is a Sexual Advance Directive?

Upon first hearing of sexual advance directives, I immediately thought of an unconscious person who has given consent in advance to other people performing sexual acts on his or her body, and I found myself quite opposed to the idea. Unlike advance directives with respect to medical care, however, the sexual advance directive—as proposed by Boni-Saenz—would operate to provide consent only in the event that the person in question also indicates a desire to have sex at the time at which the sexual activity is taking place. Such directives would not, in other words, become vehicles for people to donate their unconscious (and unconsenting) later selves to sexual use by third parties. The directives would serve primarily as a vehicle for people with acquired persistent cognitive impairments (such as Alzheimer’s Disease) living in institutional settings to be able to have a sexual life.

As Boni-Saenz points out, one of the positive distinguishing features of sexual advance directives, relative to other sorts of advance directives, is that there should be no conflict between what the (competent) person wants at Time 1 and what the (subsequently incompetent) person wants at Time 2. There is, in this sense, what the author calls a “consensus of consents.”

This device seems quite appealing in the light of an Iowa criminal prosecution of a man for rape for having sex with his Alzheimer’s-afflicted wife, notwithstanding his wife’s apparent desire for the sex in question. An advance directive in which the still-competent wife would have indicated her wish to have future sex with her husband could potentially have spared her husband the criminal prosecution.

Is a Sexual Advance Directive Really Necessary?

While I admire the creativity of the sexual advance directive and believe it might help prevent inappropriate prosecutions, I question whether such directives should be necessary. In thinking about the Iowa prosecution, for example, I am struck by the sense that it should never have taken place, even though there was—by hypothesis—no sexual advance directive there, since Boni-Saenz had yet to share the idea of this legal device. As I argued in this Verdict column, the standard of functioning that ought to be necessary for competency to consent to sex should not be that demanding. If a person who is demented desires sexual activity, then he or she should be able to consent to sexual activity without having to display an especially high level of cognitive functioning and without having had to plan to want sex at an earlier period of greater competency.

To state this differently, I am not sure that what an earlier, more competent version of a person felt about future sexual encounters should have much bearing on the presence or absence of later consent. To the extent that we truly believe that the current version of the person is so out-of-it that she simply cannot be said to have consented to sexual activity, then she is not very different from a child or an unconscious person, and no advance directive (on Boni-Saenz’s own proposal) should give anyone sexual access to her. If, on the other hand, she is mentally present enough so that we wish to honor and respect her sexual desires, then the absence of an earlier plan to have sex later should pose no impediment.

An Alternative Competency Standard

I would thus argue for an easier competency standard so that there would be no need for the arguably irrelevant earlier consent from the more competent “self.” To see the irrelevance of this earlier self’s thinking, consider the following hypothetical case, based on the F. Scott Fitzgerald book and the popular movie, “The Curious Case of Benjamin Button.”

Benjamin comes into the world as an old man and becomes successively younger as time goes by until his death as a young infant. When he is 25 years old, he anticipates that he will want to have sex with his now-25-year-old girlfriend when she is 40 and he is 10 years old (since he ages in reverse). He fills out a sexual advance directive to this effect. When he turns 10, would we allow a 40-year-old woman to have sex with him, even if he strongly desires it? Probably not, if we assume that he really is cognitively and emotionally 10 years old (rather than an older man trapped in a 10-year-old body). When we truly consider someone incompetent to consent to sex, we prohibit people from having sex with him, case closed.

If, on the other hand, a person feels desire and is an adult and appears emotionally able to handle sex, notwithstanding a persistent cognitive impairment, then that ought to be enough for him to pursue mutually consensual sexual activity. It is in fact an insult to the person he is now, however impaired, to demand permission from his “smarter” former self for the sex. What if his earlier self was not much interested in sex? Or what if his earlier self could not imagine any dignity in having sex in his later, compromised state? So much the worse for the earlier self, whose wishes should not be at issue.

I suspect that Boni-Saenz himself might agree with me and might like to see a regime in which his proposed sexual advance directive would be unnecessary. In another article, he argues that “the right to sexual expression should not be withheld due to cognitive impairment alone” and proposes a more forgiving standard for sexual competency than is currently the law. Absent a more forgiving standard, however, it may unfortunately be necessary to use devices like sexual advance directives to give at least some members of the persistently impaired population access to a sexual life.

There are, of course, serious concerns about the sexual abuse of vulnerable people who have become unable to make decisions due to Alzheimer’s disease or some other chronic condition. But even under Boni-Saenz’s proposal, we would need to examine the person at issue in the present to determine whether she is truly choosing to have sex now in a volitional way. So the sexual advance directive would not spare people an inquiry but would add a question to the mix—what did earlier John Doe want for his later self?

Like asking John Doe’s parents for permission for him to have sex, the answer “yes” is neither necessary nor sufficient to qualify Doe for the sex he wants. We should focus exclusively on him, on what he wants, and on whether he has the minimal cognitive function and emotional maturity necessary to make sexual choices. What his parents (or the moral equivalent—his earlier, more competent, self) have to say seems beside the point. For this reason, though I can see the appeal of sexual advance directives for calming the concerns of nursing homes seeking to avoid liability, I think it would be better if they were not necessary because they fundamentally ask the wrong question in seeking to determine the consensual nature of sex happening in the present.