Like ethnicity, gender, and sexuality,
Like ethnicity, gender, and sexuality,
disability is simply one of many
characteristics of being human.
When I see people with disabilities marry, I recognize that the march to the altar to stand before God is long. They must march past societal bigotry, family disapproval, religious intolerance, and agency dictates…
Dave Hingsburger
The Colorado Developmental Disabilities Council (CDDC) advocates in collaboration with and on behalf of people with developmental and intellectual disabilities for the establishment and implementation of public policy that furthers independence, community employment, and full inclusion into every aspect of life.
Colorado Developmental Disabilities Council +++ 1120 Lincoln Street, Denver, CO 80203 +++
The Colorado Developmental Disabilities Council is committed to including people with disabilities in all areas of community life. The Council works toward system change through public policy as well as building capacity and grant making. The Developmental Disabilities Council is comprised of 24 members appointed by the Governor, with a 60% representation of people with disabilities and their family members.
The Council’s values concerning sexual expression are the same for people with disabilities and the general public. Because there are often misconceptions and fears about discussing the topic of sexual expression, the Council has chosen to update its policy on sexuality with the hope of increasing not only awareness of rights, but also of increasing communication and discussions of the topic in families, schools, and provider agencies (referred to in this document as the “support team”) that support people with disabilities.
This policy was developed to provide guidance and to affirm, defend, promote and respect the inherent sexual rights and basic human needs for all people living in Colorado, including people with disabilities.
The Council supports the following for people living with disabilities:
► Living in one’s own home or apartment, not a nursing or group home owned by a service provider agency;
► Real jobs with real pay and benefits, not piecework for a human service agency at sub-minimum wages;
► Students attending their neighborhood school in general classrooms rather than in separate classrooms only for students receiving special education supports;
► Public transportation rather than special busses going to special places;
► The use of recreational activities/facilities that everyone has access to such as the YMCA or Parks and Recreation, rather than segregated activities or Special Olympics.
WHY IGNORING ‘THE ISSUE” CAUSES HARM
Dave Hingsburger, in his book, Just Say Know, related the story of a young man who lived in a group home and fell in love with one of his housemates. They arranged to have consensual sex downstairs when staff was routinely busy with tasks upstairs that did not involve them. The couple looked forward to spending time together at the group home as well as the workshop during the day. When staff found them having sex in the basement, the staff pulled them apart and the next day the young woman was immediately moved to another home and was found other work. What did the individuals learn from this? That all sex is wrong, that there is no time or place that is appropriate, that there is no individual with which sex is an OK expression of affection, and that sex is something to avoid talking about and doing. Sex is to be punished and never to occur under any circumstance. This loss of ‘figure-ground’ leaves a person with a disability unable to distinguish from ‘good sex’ and ‘bad sex’. There is no context in which to discuss the topic, much less grow and develop as a result of experience and discussions. The young man developed behaviors of staring at anyone of the opposite sex and going into a fantasy world. Staff noticed this behavior and thought he might be a pedophile and referred him to Mr. Hingsburger along with a rather large file of suspicions about his alleged pedophilia.
Luckily for the young man, Dave Hingsburger is very skilled and did not refer him on to the criminal justice system for a life of prohibitions and a suspension of his rights.
There are tragic consequences to this all-too-common approach. When an individual has been shown there is no appropriate time, place, or person for sexual expression, that person still has a desire in need of expression, and such expression may take forms that will be seen as aggressive and harmful to others. Additionally, someone who is sexually abused may fear being punished for being sexual and therefore will not come forward to tell of the abuse. In short, oppression and avoidance of sex will lead to the oppression of natural desire and behavior and may lead to other much more serious problems. Obtaining legal guardianship will not stop people with disabilities from being sexual.
PHILOSOPHY ON SEXUALITY
Sexuality is a basic biogenic need and integral to the way a person relates to their world. Much more than sexual activity, sexuality encompasses self-perception, self-esteem, personal history, personality, concepts of love and intimacy, orientation, and body image. Every person is a sexual being with inherent and basic human needs, including sexuality.
We are all sexual beings growing up with individually determined values of family, culture and community. Each of us deserves to have the opportunity to love and be loved and, as consenting adults, to establish relationships with the people we choose, and to express our sexuality. Support personnel, whether they are family or community support providers, can benefit from information and training to assist people in developing healthy and functional expressions of sexuality.
People living with a cognitive or developmental disability have the right to:
► develop self-identity, self-esteem, and self-respect;
► make choices regarding healthy and safe relationships and sexual expression;
► be supported to make informed choices;
► grow up and be considered an adult by their family and support team;
► be treated with respect and dignity;
► be supported in their decisions about sexual relationships through a person-centered process;
► have the support they need to meet their goals and aspirations, including sexuality and relationships.
To ensure this happens, the support team will:
► Value the voice of, and advocate for the rights of, people living with cognitive and developmental disabilities;
► Support and advocate with families;
► Promote inclusion;
► Involve people in decisions about their own lives;
► Provide support that promotes self-development and independence;
► Treat people and their families with respect;
► Respect the cultural, family, and community values of each person and their family.
POLICY STATEMENT ON FRIENDSHIPS AND RELATIONSHIPS
People living with a cognitive or developmental disability have the right to develop and participate in relationships and to determine the nature of their relationships.
While some individuals may need support in developing and maintaining friendships and relationships, others will not. Relationships may be physically affectionate and/or sexual. All people have a right to be physically affectionate with an agreeable party.
The support team will:
► Ensure that people are afforded the opportunity to choose friends and partners outside of their homes and to entertain friends and partners in their homes;
►Ensure that people are given support and education on how to develop the kinds of relationships that they desire;
► Acknowledge and honor all relationships that individuals may wish to have as long as there is not harm, abuse, or exploitation;
► Consistently support the right of individuals to have relationships in the manner that they feel most comfortable;
► Respect people’s right to make mistakes in relationships as long as they are not unduly hurt, exploited or harmed;
► Support people living in residential services who choose to invite friends and partners to visit and/or stay over as long as the health and safety of themselves and others is ensured
► Support people to understand their responsibilities within relationships
POLICY STATEMENT ON SEXUAL EXPRESSION
All people have sexual feelings and a right to sexual expression, including the rights to develop sexual relationships and to express their sexual identity and orientation.
People who have a developmental disability have sexual feelings and the right to express those feelings in a responsible manner.
The support team will ensure that:
► There are private environments in residential settings where people are free to express emotional and sexual feelings alone or with a consenting partner;
►All people shall have the opportunity to decide upon and express personal variations in sexual expression (e.g. celibacy, masturbation, homosexuality, bisexuality, transgender, heterosexuality);
►People can express their sexual feelings in a way that will not cause undue harm, abuse, or exploitation to themselves or others.
POLICY STATEMENT ON PRIVACY
All people shall have the right to privacy in seeking guidance and support in matters relating to their personal lives. They shall also have access to privacy for engaging in physical affection or sexual expression with another consenting adult of their choice.
People with developmental disabilities, like all United States citizens, enjoy the right to privacy provided by the US Constitution. Exercising one’s fundamental right to privacy includes the ability to engage in consensual sexual activity, purchase and use contraceptives, marry, procreate, and refuse medical treatment.
The support team will ensure that:
► People will have the opportunity to discuss sexuality with the people of their choice and in a setting that is comfortable for them, whether the conversation is happening on a formal, informal, or private level;
► Personal or intimate sexuality issues are not discussed in group settings (e.g. Individual Plans,etc.), or only at the discretion of the person. Support team consultations with other professionals may only occur with the permission of the person;
►Any information pertaining to sexuality, including Sexually Transmitted Infections, is kept in a separate file for privacy and confidentiality;
► Opportunities to privately pursue sexual expression either alone or with another consenting adult shall be provided.
► Sexual expression and choices of people to be sexual with are private and subject to the same rules of confidentiality as other matters.
POLICY STATEMENT ON SEXUAL BEHAVIORS
All people have a right to their sexual expression providing it is not illegal or imposed upon others.
People with cognitive and developmental disabilities may be more likely to be charged with a crime compared those without disabilities whenever sexual activity is reported. This may be due to an inability to hide behaviors as well as others do. Additionally, people with disabilities may not realize their behavior is unhealthy, hurtful, or illegal because of a lack of education and experience with appropriate social expression of sexuality or general decision-making. Frequently, others who do not know the individual well may misinterpret their behavior.
The support team will ensure that:
► There is support for people who have difficulty understanding boundaries relating to sexuality;
► The purchase of stimulating materials or sexual toys is completed in a discreet manner;
►Persons are provided with physical assistance and/or adaptations, when necessary, for purposes of sexual expression and activity;
►People who have maladaptive sexual behavior or sexual dysfunctions have access to meaningful education and support; the support team will also
► Adhere to the understanding that any behaviors that are not illegal are to be allowed if all parties are consenting and no apparent undue harm, abuse, or exploitation is indicated;
POLICY STATEMENT ON MARRIAGE AND PARENTING
All people have the opportunity to participate in commitment ceremonies, marry, and/or have children.
People have the right to make informed choices about committed relationships, their reproductive health and child bearing.
The support team will ensure that people:
► Will receive education and information that supports their informed decision-making in committed relationships including personal counseling and benefits counseling;
► Are educated about their reproductive health, including protection from Sexually Transmitted Infections;
► Have regular medical support and check-ups relating to their reproductive health;
► Have unbiased and adequate information regarding contraception options and side effects to support informed decision making about the use and selection of contraceptives,
►Have access to the contraception or family planning method of their choice;
► Will receive education and information about having and raising children that is individualized to reflect individual abilities to understand;
►Will make their own decisions related to having and raising children, with supports as necessary;
►Are supported to be the primary decision maker when deciding upon vasectomy, tubal ligation, or hysterectomy.
POLICY ON ACCESS TO EDUCATION AND SERVICES
All people have the right to access information, education, resources, support and services in a form they can understand and relate to.
Sexuality education and services are not limited to biological issues alone, but should also reflect the holistic nature of human sexuality.
The support team will ensure that:
►Education and training is available and individualized to meet the person’s needs and level of understanding. It should include the opportunity for actual practice, role play or assisted experience, or mentoring whenever possible;
► Education and training can include such topic areas as: puberty and adolescence; dating, relationship building, social skills including public and private considerations, decision making, values clarification, birth control, safe sexual practices and family planning, premarital and marital counseling, childbirth education and parenting, and awareness of laws relating to sexual expression.
► Specialized counseling is available to people interested in marriage and/or parenting, and on-going support and assistance is provided to couples;
►Information is provided on sexually transmitted diseases, including prevention, consent for testing, treatment, and rights to confidentiality;
►Training in self-protection and avoidance of exploitation is available. This includes assertiveness training, learning how to say “no”, reporting incidents of abuse and exploitation, and self-defense training.
►People are provided training in the appropriate and safe expressions of personal sexuality including masturbation and the use of sexual toys;
POLICY ON: SEXUAL ABUSE AND EXPLOITATION PREVENTION
All persons have the right to receive training and supports to learn how to avoid being exploited.
POLICY STATEMENT ON CONSENT
Adults living with cognitive or developmental disabilities have the right to make their own decisions about relationships.
A person of legal age and with the ability to give consent has the right to be sexually active in a way that is appropriate and safe for them and their partners. Family members, guardians, staff, or other interested parties can neither consent nor deny the right to sexual expression of a person living with a cognitive or developmental disability. Consent laws are in place to protect individuals from coerced sexual acts; however they should not deny two consenting adults the ability to enjoy a relationship to its fullest sexual potential. If a person is engaging in sexual behavior that causes undue harm, abuse, or exploitation to him/herself or partner, then efforts will be made to understand the behavior and to support the person to engage in healthy sexual activity.
Support teams may assist the person to access improved social opportunities, assistive technology, practice in decision making, or environmental changes that re-direct a person towards a lower-risk activity that he or she can manage right away (holding hands, dancing, going out to eat, etc.) until they have gained the needed skills. (Luckassen & Walker-Hirsch). (See Appendix 3: Consent and Guardianship for additional information)
The support team will ensure that:
► All people are given the opportunity to make decisions about their own lives.
► When a person is unable to consent verbally other means of seeking consent are used such as pictures, symbols, signs, or other assistive technology.
GUARDIANSHIP
Guardianship does not preclude an individual with a disability from having sex, as some guardians may hope. There are many ways of supporting an individual in lieu of obtaining full guardianship and in the process, restricting rights. In the past, total guardianship was the norm; now people with disabilities and their families are beginning to consider partial guardianships and/or assigning power of attorney. Establishing a guardianship may remove considerable rights from an individual and should only be considered after alternatives to guardianships have proven to be ineffective or unavailable. If a guardianship seems necessary, it will be important to consider what the guardian will have control over—where the youth will live, who he or she can see, what level of intimacy a person may pursue, if the guardian will authorize or prevent access to contraception. A court must authorize any guardianship for an adult.
SUPPORTED DECISION MAKING
Supported decision making empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving the assistance they need to make decisions for themselves. Supported decision making is similar to how each of us uses additional resources to make decisions, but it is unfortunately a novel idea relative to individuals with cognitive disabilities who may have little experience in decision-making. The experience of using Supported decision making has the potential to promote the self-determination of persons with intellectual disabilities consistent with how others make decisions as well as to build confidence by exercising choice-making.
IMPLEMENTATION GUIDELINES FOR CARE PROVIDERS AND AGENCY STAFF
AGENCY RESPONSIBILITIES
►Agencies develop, disseminate, and train their staff regarding policies and practices that ensure the free expression of sexuality for all persons with disabilities and
►Agencies ensure the participation of people with disabilities in the development of policies and practices which promote privacy and ensure sexual expression.
►Agencies make available to persons with disabilities on-going counseling, education, and support in human sexuality.
►Agencies identify and use community resources regarding human sexuality (e.g. support groups and family planning services).
►The agency has a plan to meet the sexuality needs of persons with disabilities. The plan will include identification of qualified staff or referral source to provide sex education, training and counseling.
►The agency makes available assistance and support to persons with disabilities in addressing sexuality issues with parents, family members and other providers. This may include obtaining an advocate.
►When sexual behavior is considered to be socially inappropriate, the agency intervenes in an objective manner which preserves the dignity of the persons involved.
►Agencies intervene in sexual activities of persons with disabilities only to the extent necessary to reasonably reduce risks associated with sexual practices and exploitation.
►Staff and volunteers are prohibited from sexually exploiting persons with disabilities.
►The agency has established procedures to screen allegations of sexual misconduct. Any suspected illegal activity is reported immediately to law enforcement and/or department of social services.
STAFF TRAINING
►Agencies provide on-going, comprehensive staff training and development in human sexuality and in the rights of people with disabilities to sexual expression.
►Agencies provide orientation to all new staff regarding sexuality policies and procedures.
►Agencies provide staff education to support social/sexual relationships of persons with disabilities, including sexual preferences different from those of staff or agency religious base.
►Staff are trained to discriminate between appropriate and inappropriate sexual activity and how to make the determination for themselves.
►Staff are trained to discriminate between legal and illegal sexual activities.
►Staff are also trained to recognize potentially harmful sexual behavior and to obtain resources to determine degree and type of necessary supports.
►Agencies provide training on universal precautions of handling body fluids to prevent the spread of infectious diseases.
CO DD COUNCIL POLICY ON SEXUALITY
APPENDIX #1:
DEFINITIONS
SEXUALITY
Sexuality is part of the totality of being human and includes all aspects of persons that relate to their sexuality. Sexuality is part of every individual’s life from conception to death and subject to lifelong dynamic change. Sexuality is essential to human health and well-being.
CONFIDENTIALITY
Confidentiality is the guarantee that information about a person is only made available to others with the knowledge and consent of the individual, or his/her legal guardian. Dissemination of such information involves the application of the “need to know” principle, by which others receive only as much information as they need in order to serve and benefit the individual in a sensitive manner.
PRIVACY
Privacy is the right to engage in sexual activities with the minimum amount of intrusion that is reasonably possible.
SEXUAL ABUSE (SEXUAL EXPLOITATION)
Sexual abuse is any sexual act which occurs as a result of coercion, physical force, or taking advantage of a person’s disabilities.
SEX EDUCATION/COUNSELING/TRAINING
The preparation for personal relationships by providing appropriate educational opportunities is designed to help the person develop understanding, acceptance, respect and trust for oneself and others.
Sex education includes the knowledge of physical, emotional and social growth, maturation, and understanding of individual needs. In cases where the person demonstrates required understanding, this education many include “counseling” in the traditional sense.
CO DD COUNCIL POLICY ON SEXUALITY
APPENDIX #2:
LAWS APPLICABLE TO SEXUALITY AND PEOPLE WITH DISABILITIES
Constitutional Guarantees
The First Amendment to the United States Constitution guarantees the Freedom of Speech, with exceptions.[1] It also provides for the Freedom of Association[2] and Freedom of Religion.
The Fourteenth Amendment contains the Due Process clause and Equal Protection clause.[3] As is discussed above, the Due Process clause is of particular importance to this issue because it guarantees privacy as a fundamental right. Exercising one’s fundamental right to privacy means the ability to: engage in consensual heterosexual or homosexual activity, purchase and use contraceptives, marry, procreate, have custody over one’s children, keep the family together, control the upbringing of one’s child, have an abortion (with some restrictions), and refuse medical treatment.
International Law
The United Nations Convention on the Rights of Persons with Disabilities, Article 23 provides guidance on respect for home and the family, including:
1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:
a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;
b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;
c) Persons with disabilities, including children, retain their fertility on an equal basis with others.
Federal Law
The Americans with Disabilities Act is a wide-ranging civil rights law that, in general, prohibits discrimination against people with disabilities in employment, public entities, public accommodations, and telecommunications.
The Fair Housing Act prohibits discrimination and any practice that otherwise makes unavailable housing opportunities for all citizens, including people with disabilities.
The Individuals with Disabilities Education Act mandates free and appropriate public education for all students with disabilities.
Section 504 of the Rehabilitation Act guarantees certain rights to people with disabilities and prohibits disability-based discrimination by programs and services that receive federal financial aid (such as airports, K-12 schools, and many universities and public libraries, to name a few).
Colorado Law
Adultery: Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited.[4]
Abortion: See C.R.S.18-6-101 regarding when an abortion is legally permissible in Colorado and when it is unlawful.
Bigamy: Any married person who, while still married, marries or cohabits in this state with another commits bigamy unless certain exceptions apply.[5]
Colorado Civil Rights Commission: This agency is charged with enforcing the State's Anti-Discrimination laws in the areas of employment[6], housing[7] and public accommodation.[8]
Consent: In the developmental disability system, consent means an informed assent that is expressed in writing and freely given. Consent shall always be preceded by the following: (a) A fair explanation of the procedures to be followed, including an identification of procedures that are experimental; (b) A description of the attendant discomforts and risks; (c) A description of the expected benefits; (d) A disclosure of appropriate alternative procedures together with an explanation of the respective benefits, discomforts, and risks; (e) An offer to answer any inquiries concerning procedures; (f) An instruction that the person giving consent is free to withdraw consent and to discontinue participation in the project or activity at any time; and (g) A statement that withholding or withdrawal of consent shall not prejudice future provision of appropriate services and supports to individuals.[9]
Consent: Under the Colorado Criminal Code, consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. Submission under the influence of fear shall not constitute consent.[10]
Discrimination against People with Mental Illness: No person who has received evaluation or treatment under Article 65 of the Colorado Revised Statues is to be discriminated against because of such evaluation or treatment. In this context, "discrimination" means giving any undue weight to the fact of hospitalization or outpatient care and treatment unrelated to a person's present capacity to meet standards applicable to all persons. Any person who suffers injury by reason of a violation of this section shall have a civil cause of action.[11]
Dissolution of Marriage: See C.R.S.14-10-102 for information about the dissolution of marriage in Colorado. Two purposes of the Statute are to promote the amicable settlement of disputes that have arisen between parties to a marriage and to mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.
Duty to report a crime: It is the duty of every corporation or person who has reasonable grounds to believe that a crime has been committed to report promptly the suspected crime to law enforcement authorities.[12]
Guardianship: Except as otherwise limited by the court, a guardian shall make decisions regarding the ward's support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the ward's limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian, at all times, shall act in the ward's best interest and exercise reasonable care, diligence, and prudence.[13]
Imposition of Legal Disability: Colorado courts have the statutory authority to impose a legal disability or remove a legal right from a person with a disability. The Court has to go through several steps before imposing a legal disability or removing a legal right.[14]
Individual’s Rights: Unless a person's rights are modified by court order, a person with a developmental disability shall have the same legal rights and responsibilities guaranteed to all other individuals under the federal and state constitutions and federal and state laws. No otherwise qualified person, by reason of having a developmental disability, shall be excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity which receives public funds.[15]
Marriage: See C.R.S.14-2-112 for information about marriage in Colorado; the purpose of the Statute is to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships and to provide adequate procedures for the solemnization and registration of marriage.
Right to Medical Care and Treatment: Each person receiving services shall have access to appropriate dental and medical care and treatment for any physical ailments and for the prevention of any illness or disability. Persons receiving services shall have a right to be free from unnecessary or excessive medication. Medication shall not be used for the convenience of the staff, for punishment, as a substitute for a treatment program, or in quantities that interfere with the treatment program of the person receiving services.[16] This section of the law would apply to medications like birth control.
Sexual assault: Any actor or perpetrator who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: (a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will; or (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or (c) The actor knows that the victim submits erroneously, believing the actor to be the victim's spouse; or (d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or (e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or (g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or (h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.[17] "Physically helpless" means unconscious, asleep, or otherwise unable to indicate willingness to act.[18]
Sterilization: No person with a developmental disability who is over eighteen years of age and has the capacity to participate in the decision-making process regarding sterilization shall be sterilized in the absence of the person's informed consent. Sterilization can include vasectomy, tubal ligation, and/or hysterectomy. Colorado law has a series of safeguards in place to ensure that people with developmental disabilities are not sterilized against their will.[19]
Legal implications submitted by Disability Law Colorado, July 2011.
To request extra copies of the pamphlet, call Colorado Developmental Disabilities Council, 720-941-0176
CO DD COUNCIL POLICY ON SEXUALITY
APPENDIX #3:
Consent and Guardianship
In the developmental disability system, consent means an informed assent that is expressed in writing and freely given. Consent shall always be preceded by the following: (a) A fair explanation of the procedures to be followed, including an identification of procedures that are experimental; (b) A description of the attendant discomforts and risks; (c) A description of the expected benefits; (d) A disclosure of appropriate alternative procedures together with an explanation of the respective benefits, discomforts, and risks; (e) An offer to answer any inquiries concerning procedures; (f) An instruction that the person giving consent is free to withdraw consent and to discontinue participation in the project or activity at any time; and (g) A statement that withholding or withdrawal of consent shall not prejudice future provision of appropriate services and supports to individuals.[20]
Under the Colorado Criminal Code, consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. Submission under the influence of fear shall not constitute consent.[21]
There are two legally acceptable determinations of a person’s ability to give consent to an activity: clinically or judiciously. Clinical determinations involve consulting professionals who gather information and report their findings to a decision-making team or committee. Judicial determinations occur when a court of law determines a person’s decision-making ability.
Informed consent tests consist of three, sometimes four basic elements that must be demonstrated by the person being assessed:
1. Capacity
a. Meeting the state’s minimal age requirement
b. Demonstrating relevant personal decision-making, functional understanding, and meaningful communication
c. Realizing the risks and benefits of the activities the person is engaging in.
2. Information or Knowledge
a. Being able to demonstrate that the person has knowledge about the nature of the activity and its consequences (physical, moral, ethical, psychological, and emotional)
3. Voluntariness
a. The person has made the decision free from any unreasonable coercion to engage in or to refrain from an activity
4. Some states add the person demonstrates their understanding of the social and moral implications of their acts.
If the person is determined to be not able to provide consent, support teams may assist the person in becoming able to consent, including access to improved social opportunities, practice in decision making, or environmental changes that re-direct a person towards a lower-risk activity that he or she can manage right away (holding hands, dancing, going out to eat, etc.) until they have gained the needed skills. (Luckassen & Walker-Hirsch).
CO DD COUNCIL POLICY ON SEXUALITY
APPENDIX #4:
SEXUALITY RESOURCES
The American Association of Sexuality Educators, Counselors, and Therapists
Couples with intellectual disabilities talk about living and loving. Melberg Schwier, K. 1994, Woodbine Press.
Enabling Romance: A Guide to Love, Sex, and Relationships for People with Disabilities, Ken Kroll & Erica Levy Klein, No Limits Communication, 2001
Health, Growth, and Development, comprehensive health curriculum made with Picture Communication Symbols™ (PCS™) for students in grade 5-12
Human Sexuality Education for Children with Special Needs
IMPACT Feature Issue on Sexuality and People with Intellectual, Developmental, and Other Disabilties. ICI U of MN.
Just Between Us: A Social Sexual Guide for Parents and Professionals with Concerns for Persons with Developmental Disabilities, Edwards and Elkins, Ednick Communications, 1988.
Just Say Know, David Hingsburger,
National Resource Center for Supported Decision Making
Parents, Families, and Friends of Lesbians and Gays (P-FLAG)
Sex, Dating, and Disability: How to Help Youth Make Healthy Choices (IMPACT-ICI)
Sexual Education for Physically, Emotionally, and Mentally Challenged Youth (Advocates for Youth)
Sexuality Education for Adults with Developmental Disabilities. Katherine McLaughlin, Karen Topper, Jessica Lindert, Planned Parenthood of Northern New England.
Sexuality Education for People with Disabilities. Sexuality Information and Education Council of the US
Sexuality of Children and Adolescents with Developmental Disabilities (Pediatrics)
Sexuality Products
Sexuality Resources for Families in English and Spanish, Sexuality Information and Education Council of the US
Sexuality Resources for Young People in English and Spanish, Sexuality Information and Education Council of the US, Resources for Young People in English and Spanish
Signs for Sexuality: A Resource Manual for Deaf and Hard of Hearing Individuals, Their Families and Professionals
There’s no Place Like Home for Sex Education, versions available for English and Spanish Speakers
The Ultimate Guide to Sex and Disability: For All of Us Who Live with Disabilities, Chronic Pain, and Illness, Miriam Kaufman, MD; Cory Silverberg, and Fran Odette, Kleis Press, 2007
The YAI Network
use their search box to access their resources on sexuality
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[1] Exceptions include obscenity, defamation, fighting words, harassment, commercial speech, and time, place and manner restrictions among others.
[2] Freedom of Association means that laws that punish group membership must be necessary to achieve a compelling governmental interest.
[3] The Equal Protection clause prohibits purposeful discrimination against a class. People with disabilities are a non-suspect class. This means that in order to be legal, the challenged governmental action must be rationally related to a conceivable government end. Fundamental rights under the Equal Protection clause include the right to interstate travel, the right to vote, and access to courts.
[4] C.R.S. 18-6-501
[5] C.R.S. 18-6-201
[6] C.R.S, 24-34-402
[7] C.R.S. 24-34-502
[8] C.R.S. 24-34-602
[9] C.R.S. 27-10.5-102(5)(a)-(g)
[10] C.R.S. 18-3-401(1.5)
[11] C.R.S. 27-65-115.
[12] C.R.S. 18-8-115
[13] C.R.S. 15-14-314
[14] C.R.S. 27-10.5-110
[15] C.R.S. 27-10.5-112(1)
[16] C.R.S. 27-10.5-114
[17] C.R.S. 18-3-402(1)(a)-(h)
[18] C.R.S. 18-3-401(3)
[19] C.R.S. 27-10.5-128, 129
[20] C.R.S. 27-10.5-102(5)(a)-(g)
[21] C.R.S. 18-3-401(1.5)
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The responsible exercise of human rights requires that all persons respect the rights of others.
World Health Organization Gender and Human Rights
All great establishments in the nature of boarding schools, where the sexes must be separated; where there must be boarding in common; and sleeping in congregate dormitories; where there must be routine, and formality, and restraint, and repression of individuality; where the charms and refining influences of the true family cannot be had—all such institutions are unnatural, undesirable, and very liable to abuse. We should have as few of them as possible, and those few should be kept as small as possible.
--Samuel Gridley Howe, 1866
All great establishments in the nature of boarding schools, where the sexes must be separated; where there must be boarding in common; and sleeping in congregate dormitories; where there must be routine, formality, and restraint, and repression of individuality; where the charms and refining influences of the true family cannot be had—all such institutions are unnatural, undesirable, and very liable to abuse. We should have as few of them as possible, and those few should be kept as small as possible.
Samuel Gridley Howe, 1866
Sexuality refers to the whole self—our thoughts, feelings, beliefs, behaviors towards ourselves and others…It is also our understanding of our own body and how it works…it is an intrinsic part of who we are, how we perceive ourselves and how we are perceived by others.
The Down Syndrome Association of Malta
Historically, families, professionals, and policy makers have erroneously believed that people with disabilities are not able to make responsible choices in regard to sexuality issues and, therefore, they have been denied access to sexuality education, freedom to establish loving relationships, and freedom of sexual expression.
TASH Resolution on Sexuality
Oppression of natural sexual desire and natural sexual behavior leads to other, more serious problems.
D. Hingsburger
Respect for Home and Family through measures to eliminate discrimination in all matters relating to marriage, family, parenthood, and relationships on an equal basis with others, ensuring among others, the rights to marry, to found a family, to decide freely and responsibly on the number and spacing of children, and to retain fertility.
Article 23 of the UN Convention on the Rights of Persons with Disabilities
They don’t teach kids enough about sex and the body, and what it’s for…They should start with little kids and tell them right things because they hear about it anyways. They figure people with disabilities don’t think about that stuff, but we do just like everyone else…Everyone has those feelings so staff and parents had just better get used to it.
Couples with Intellectual Disabilities Talk About
Living and Loving
People at the greatest risk for exploitation are those who are insulated, protected, or sheltered from what could happen. Skill development and information are powerful tools.
Terri Cowenhoven
Sexuality Educator and Parent
Consent laws are in place to protect individuals from coerced sexual acts; however they should not deny two consenting adults the ability to enjoy a relationship to its fullest sexual potential…
Guardianship need not limit the adult’s right of sexual expression and conduct, but dialog between the individual and his or her guardian can play a critical role in supporting the individual’s decision-making in this case.
Robert D. Dinerstein
Young people do want to hear from parents and other adults about sex, love, and relationships. They say they appreciate—even crave—advice; direction, and support from the adults who care about them. But sometimes, they suggest, adults need to change how they offer their guidance. Young people want real communication, not lectures and not threats.
Talking Back: 10 Things Teens Want Parents to Know about Preventing Teen Pregnancy
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