Journal of Forensic Neuropsychology

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Assessing Competency to Consent to Sexual

Activity in the Cognitively Impaired Population

Carrie Hill Kennedy

To cite this article: Carrie Hill Kennedy (1999) Assessing Competency to Consent to Sexual
Activity in the Cognitively Impaired Population, Journal of Forensic Neuropsychology, 1:3, 17-33,
DOI: 10.1300/J151v01n03_02

To link to this article: https://doi.org/10.1300/J151v01n03_02

Published online: 15 Oct 2008.

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 Assessing Competency to Consent
to Sexual Activity
in the Cognitively Impaired Population
Carrie Hill Kennedy
Drexel University

ABSTRACT. Sexuality is an integral factor when considering quality

of life. Psychologists and mental health providers have a responsibility
to promote patients’ rights to sexual expression, but also to protect
patients when impairments interfere with the ability to make informed
decisions. Rehabilitation facilities struggle with this issue, especially
the question of ability to consent. The Sexual Consent and Education
Assessment (SCEA), a tool which evaluates an individual’s capacity to
consent to sexual activity, was developed and administered to 80 cogni-
tively impaired adults. Of the subjects, 69 had varying degrees of men-
tal retardation, and 11 had traumatic brain injuries. Participation in the
study consisted of an interview with each individual and a person who
worked closely with him or her. Competency was defined as: under-
standing the nature of sexual conduct, understanding possible conse-
quences, and possessing the ability to make safe choices. Scores were
compared to independent interdisciplinary team evaluations and partici-
pant characteristics. The instrument had high internal stability and in-
ter-rater reliability, satisfactory test-retest reliability and its determina-
tion had high predictive validity with the team decisions. The ability to
consent was related to psychometric intelligence, previous sexuality
education, current sexual behavior and adaptive behavior age scores.
Current results indicate that the Sexual Consent and Education Assess-
ment is useful for psychologists, neuropsychologists, and forensic

Carrie Hill Kennedy is affiliated with Drexel University, Neuropsychology Pro-

grams, 32nd and Chestnut Streets, Philadelphia, PA 19104.
Address correspondence to: P. O. Box 331, St. Michaels, MD 21663.
The author wishes to acknowledge Eric Zillmer and Dale Zinn for their support of
this research.
Journal of Forensic Neuropsychology, Vol. 1(3) 1999
E 1999 by The Haworth Press, Inc. All rights reserved. 17
18 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

psychologists because it addresses both prescriptive and diagnostic

issues of sexual competency in the cognitively impaired population.
[Article copies available for a fee from The Haworth Document Delivery Service:
1-800-342-9678.E-mailaddress: getinfo@haworthpressinc.com<Website:http://
www.haworthpressinc.com>]

KEYWORDS. Sexual consent, competency, cognitive impairment

In the past two decades there has been an emphasis on integrating

people with developmental disabilities into their communities and
improving their quality of life. In assessing quality of life, a crucial
component is the consideration of opportunities to exercise choice in
developing personal relationships and expressing sexuality (Ames &
Samowitz, 1995). It is recognized by professionals that sexuality is a
‘‘basic, fundamental aspect of human development, personality, and
behavior’’ (Medlar & Medlar, 1990, p. 46). Yet the sexuality of people
with developmental disabilities has not only been ignored but often
actively suppressed in our society (Sundram & Stavis, 1994). Howev-
er, providers and other professionals are becoming aware of the social-
sexual needs of individuals with cognitive impairments (e.g., Nieder-
buhl & Morris, 1993), and opportunities for these individuals have
grown. Expanded vocational programs, community-based group
homes, alternative living units (ALUs) and competitive work experi-
ences have made it easier for developmentally disabled people to
develop friendships and intimate relationships (Sgroi, 1989, Sundram &
Stavis, 1994).
Problems have emerged with changing views regarding cognitively
impaired individuals and sexuality. States and providers have the dual
responsibility of respecting basic human rights while protecting non-
consenting individuals. The issue of sexuality coupled with cognitive
impairments makes balancing basic rights and the legal need to protect
people a difficult problem (Kaeser, 1992). In fact, Ames and Samo-
witz (1995) have suggested that ‘‘. . . the principal stumbling block for
many professionals, administrators, and parents in enabling individu-
als with developmental disabilities to exercise their rights to sexual
expression seems to be the issue of consent to sexual interaction with
others’’ (p. 264).
The issue of consent is a complicated one since it has no standard
definition or set criteria (Parker & Abramson, 1995). The ability to
 Original Research 19

consent to sexual relations can be compared to the ability to give

informed consent, the goals of which are to ‘‘promote individual au-
tonomy and to encourage rational decisionmaking’’ (Lidz et al., 1984,
p. 4). Morris, Niederbuhl, and Mahr (1993) believe that establishing
criteria for informed consent is difficult, as strict criteria may infringe
on individual rights, but lenient criteria may fail to protect individuals
from harm. Sundram and Stavis state three general elements of the
ability to give consent: ‘‘(1) knowledge of the important aspects of a
decision and its risks and attendant benefits; (2) intelligence, reason or
understanding which shows that the knowledge is comprehended and/
or it is applied in a manner consistent with a person’s values or beliefs;
and (3) voluntariness, meaning that the person is not subjected to
coercion and understands that there is a choice and he or she has the
ability to say ‘yes’ or ‘no’’’ (1993, p. 450).
An evolving area of competency research is consent to treatment in
individuals with Alzheimer’s Disease. There exist some basic similari-
ties between this ability in cases of dementia and the ability to consent
to a sexual interaction in the mentally retarded population. According
to Marson, Chatterjee, Ingram and Harrell, ‘‘giving informed consent
to treatment is an act of complex decision making with important
medical and legal consequences’’ (1996, p. 668) and the same is true
regarding sexual consent. In both types of consent (i.e., sexual activity
and treatment) in the two populations there is a question of cognitive
capacity due to a form of brain dysfunction. In addition, both are
complex issues involving equalizing individual rights and protecting
individuals who are unable to make complex decisions.
While there are fundamental similarities between the two abilities,
there also exist substantial differences. The methods with which to
assess each group must diverge significantly due to the differing cog-
nitive features characteristic of each population. For example, one
popular method of assessing competency in Alzheimer’s Disease is to
present a patient with a written vignette regarding informed consent
and then ask questions about what they have read (see Janofsky,
McCarthy & Folstein, 1992). This method would fail to provide accu-
rate results in the mentally retarded population due to low or non-exis-
tent reading levels. Even if the vignette were read aloud, decreased
oral comprehension would negate understanding for many individu-
als. This method seems to be successful in achieving a level of com-
prehension of a single complex decision (e.g., medical treatment) for
20 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

some individuals. However, the assessment needs within the mentally

retarded population are decidedly different. Mentally retarded individ-
uals may require varied modes of assessment which encompass di-
verse methods to assess knowledge (e.g., direct questioning, use of
assistive communication devices, and anatomically correct dolls in the
case of sexuality) and functional abilities (e.g., functional assessments
and interviews with staff/caregivers).
In addition to assessment needs, the differences between the ability
to consent to treatment and the ability to consent to sexual activity are
significant. In the case of the former (consent to treatment), an individ-
ual is given information, family support/input and medical advice,
which is then thoroughly discussed with the individual, other people
give their opinions, and the pros and cons are weighed. The individual
then makes a single decision with support from others. This is not so
in the case of sexual consent. First, the individual in question will be
alone in making the decision, probably in a situation where other
people cannot be consulted, and a relatively quick and independent
choice will have to be made. Second, the individual will have to act
independently on this decision, relying on previous education, infor-
mation and safety skills obtained. The two types of competencies,
while sharing some basic similarities, are quite distinct.
Different states have made varied legal decisions regarding the
necessary criteria for individuals to be deemed capable of giving con-
sent to sexual activity. Sundram and Stavis (1994) reported that Ala-
bama, Colorado, Hawaii, Idaho, New York, and New Mexico require
individuals to understand the nature of their sexual conduct, the pos-
sible consequences of their actions, and to appreciate the moral dimen-
sions involved regarding their decision to engage in sexual activity.
Arizona, Illinois, Indiana, Iowa, Kansas, and Louisiana require indi-
viduals to understand the nature of sexual conduct and the possible
consequences of sexual behavior. New Jersey law requires individuals
to understand the nature of their sexual conduct, but does not require
that people understand the possible consequences. Those states not
listed here have not had criteria-deciding court cases involving cogni-
tively impaired individuals and the issue of sexual consent. Other
factors which have been determinants in the legal arena are the differ-
entiation between chronological age and mental age, IQ, level of men-
tal retardation, functional abilities, attendance or residence at a school
 Original Research 21

or special program, and the ability to resist coercion of authority

figures (Sundram & Stavis, 1994).
The criteria for sexual consent in this study were consistent with the
general criteria for informed consent and with those criteria set forth
by Arizona, Illinois, Indiana, Iowa, Kansas, and Louisiana and in-
cluded: understanding the nature of sexual conduct, understanding
possible consequences, and possessing the abilities to resist coercion
and implement a choice. The moral quality dimension was not uti-
lized, as this standard is not used as a determination of competency to
consent in the non-impaired population. Morris, Niederbuhl, and
Mahr agree that ‘‘ . . . it is important to recognize that individuals with
mental retardation should not be held to different standards than those
commonly applied to individuals within the general population’’
(1993, p. 264). This issue, in particular, is a complicated one in that the
competency of the non-impaired population is typically not in ques-
tion, even in cases where individuals are engaging in maladaptive and
potentially self-destructive sexual behavior. Professionals need to be
cognizant of this disparity in order to avoid holding cognitively im-
paired individuals to higher standards.
The goals of the current study were as follows: (1) to evaluate an
assessment tool designed to determine a cognitively impaired individ-
ual’s ability to consent to sexual activity; (2) to provide a means of
determining what skills and knowledge are needed by individuals who
are not competent, so that they might be safer and/or eventually be
able to consent to sexual activity; and, (3) to identify some of the
characteristics of individuals likely to be determined competent to
give sexual consent.

METHOD

Participants

Eighty cognitively impaired adults (42 men and 38 women, mean

age = 41.8 years, median age = 39 years, range 21-76 years) com-
pleted the study. Three individuals terminated their interviews before
completion due to discomfort with the material. Of the participants, 11
had experienced a significant traumatic brain injury (TBI) which re-
sulted in the need for 24-hour supervision in a community-based
residential facility (mean years post injury = 14.3, SD = 8 years). The
22 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

remaining 69 participants were mentally retarded (Mild = 36, Moder-

ate = 21, Severe and Profound = 12). Of these individuals, 7 resided in
an independent apartment with ‘‘drop-in’’ supports and 62 lived in
supervised group home placements. No individual had ever been mar-
ried. Of the participants, 20 reported that they were sexually active at
the time of the interviews.
Materials
The Sexual Consent and Education Assessment (SCEA, Kennedy,
1993) was created for the evaluation of competency to consent in the
cognitively impaired population. Items for use in the SCEA were
formulated using the aforementioned legal criteria with input from
residential and vocational agencies serving developmentally disabled
and brain injured individuals. Specific items and problem areas were
gathered from professionals serving cognitively impaired individuals
through interviews. Information was also obtained from workshops on
general sexuality and the determination of ability to consent to sexual
activity, sponsored by the Maryland Developmental Disabilities Ad-
ministration. The first draft of the assessment was given to the Human
Rights Advisory Committee Chairman of the Chesapeake Center, Inc.,
an agency serving brain injured and mentally retarded adults, as well
as to an attorney at the Maryland Disabilities Law Center for review.
Input resulted in several revisions, the last of which was utilized for
this study.
The SCEA is composed of two scales (see Table 1): Knowledge of
Human Sexuality (K-Scale) and Safety Practices (S-Scale) based on
the two different types of abilities an individual needs to possess to be
considered capable of consenting to a sexual interaction. The K-Scale
evaluates the extent of knowledge an individual possesses regarding
the issue. The S-Scale, on the other hand, assesses the functional
capacity of an individual to use this information in an independent
situation. The K-Scale, Knowledge of Human Sexuality, consists of 12
items from very basic (#1-- Individual can identify basic body parts) to
more difficult (#12-- Individual understands the concept of illegal
sexual activity). Higher scores indicate more knowledge, while lower
scores indicate less knowledge. Only two items on this scale are con-
sidered critical items, as they meet minimum legal criteria for consent
(#7-- Individual understands and demonstrates knowledge of sexual
intercourse and #8-- Individual can identify the major consequences of
 Original Research 23

TABLE 1. Individual Scales and Item Content of the SCEA

K--Scale/ Knowledge of Human Sexuality

Item K1 --Individual can identify basic body parts.
Item K2 --Individual can identify own gender.
Item K3 --Individual can differentiate between males and females.
Item K4 --Individual can identify male and female genitalia.
Item K5 --Individual demonstrates knowledge of the basic functions of male and
female genitalia.
Item K6 -- Individual demonstrates understanding and knowledge of masturbation.
Item K7 -- Individual demonstrates knowledge of sexual intercourse.
Item K8 -- Individual can identify the major consequences of sexual activity.
Item K9 -- Individual demonstrates knowledge of birth control.
Item K10 -- Individual demonstrates knowledge of AIDS and other sexually
transmitted diseases.
Item K11 -- Individual can discriminate between appropriate and inappropriate
places for sexual activity.
Item K12 -- Individual understands the concept of illegal sexual activity.
S--Scale/Safety Practices
Item S1 -- Individual demonstrates preferences for some people over others.
Item S2 -- Individual makes choices based on preferences.
Item S3 -- Individual demonstrates effective personal safety practices.
Item S4 -- Individual effectively communicates to another person that he/she
does not want to participate in an activity.
Item S5 -- Individual rejects unwanted advances or intrusions.

sexual activity). Thus, they must be answered correctly in order for an

individual to be deemed capable of giving sexual consent. Incorrect
responses on any K-Scale item indicate a need for sexuality education.
The S-Scale, Safety Practices, is a set of five questions which are
asked of a person who has worked closely with the individual for at
least one year. The questions are based on the individual’s ability to
make choices and protect himself/herself. Positive responses to these
questions indicate that the individual is able to protect himself/herself.
Negative responses to any of these items reflects the need for safety
education.
Scoring involved a pass (1) or a fail (0) decision for each item. Only
items which are defined legally are used in the assessment determina-
tion of competence (K-Scale Items #7 and #8 and all S-Scale items).
An overall SCEA score (i.e., totaling K + S) is not used to determine
competency. Scoring examples are provided in Table 2. The additional
K-Scale items, while not used in the competency determination, assess
24 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

TABLE 2. Administration and Scoring Criteria of Selected Items of the SCEA

Item K11--Individual can discriminate between appropriate and inappropriate places

for sexual activity.
Given examples, the individual is able to recognize acceptable places to engage in
sexual activity. The interviewer will ask the individual:
‘‘Is it okay to be naked (not have any clothes on, be nude, etc.) in your bedroom?’’
‘‘Is it okay to be naked in the dining room?’’
‘‘Is it okay to be naked in the bathroom?’’
‘‘Is it okay to have sex (use the slang expressions that they do if necessary) with
someone in the living room?’’
‘‘Is it okay to have sex with someone in your bedroom?’’
‘‘Is it okay to have sex with someone in a hotel room?’’
‘‘Is it okay to have sex with someone at the movies?’’
‘‘Is it okay to touch your girlfriend/boyfriend’s vagina/penis (again, use the language
that the individual knows) in the grocery store?’’
Correct answers may vary if someone is often home alone, has a roommate, etc. If
the area is free of others and the individual communicates this fact, then the
response will be considered correct. All questions posed to the individual must be
answered correctly for a correct response to be scored for this item.

Item S4--Individual will effectively communicate to another person that he / she does
not want to participate in an activity.
The interviewer will ask the caregiver ‘‘In what way (if any) does the individual (use
the individual’s name) communicate that he/she does not want to participate in a
certain activity?’’ If the caregiver can think of only one way or can think of none, the
interviewer will provide a list of examples to the caregiver. The interviewer will say:
‘‘Upon a request from a staff member, friend, family member or supervisor the
individual:
--states ‘no’ or ‘I don’t want to.’
--shakes head from side to side.
--remains in room and will not come out.
--remains in bed, chair, etc., and will not get up.
--pushes someone away.
--hides.
--yells or hits the individual making the request.’’
If the individual has one or more methods of saying no or refusing activities which is
clearly demonstrated to an individual who is not familiar with the person in question,
this item will be scored as a correct response.

very basic (Items 1-6) and more advanced areas of knowledge (Items
9-12). These items target specific educational needs for both non-com-
petent and competent individuals. For non-competent individuals, the
SCEA assesses the extent of an individual’s knowledge and provides
specific programmatic requirements for education towards competen-
cy. For competent individuals, who do not receive a pass decision for
 Original Research 25

all 12 items, the SCEA provides specific information regarding what

advanced concepts and information need to be provided to enable an
individual to make the most informed choices possible.
Design and Procedure
Fifteen agencies serving people with cognitive impairments on the
Eastern Shore of Maryland were contacted for participation in this
study. Five agencies responded and made the study available to their
program participants. Each client, or legal guardian when necessary,
provided informed consent. Participation in the study required each
person to submit to a 20 to 60 minute interview, grant a review of
his/her records and give permission to interview at least one person
who had worked closely with him/her for at least one year. Interviews
of these staff members typically lasted 15 to 25 minutes each.
Interviews of all research participants took place at each individu-
al’s residence or work site in a private room. Participants were inter-
viewed by a Master’s level clinician with 3 years experience working
with sexual issues of cognitively impaired adults, under the supervi-
sion of a licensed psychologist. Interviews of research participants
were conducted prior to interviews of staff members so that no precon-
ceptions could be formed by the examiner. Records were reviewed
after both interviews were complete.
Following the interviews and record reviews, each individual’s In-
terdisciplinary Team met. The team decision was considered the best
determinant of issues regarding competencies. The five agencies dif-
fered slightly on team membership, but typically the teams consisted
of the individual, Program Director, Program Coordinator, Case Man-
ager, State Psychologist, residential staff members, vocational staff
members, and family. Each team’s coordinator was instructed on the
legal criteria by this researcher (i.e., whether or not the individual in
question understood the nature of sexual conduct, knew the conse-
quences of sexual activity, and if they were able to protect themselves
by utilizing choices). Each coordinator presented this information to
their agency’s team, and a decision (i.e., majority vote) was made for
each person independent of this researcher and the SCEA. Individual
teams met within two weeks to a month following the interviews and
record reviews, following which the agency coordinators submitted
the decisions. Data gathered from individual interviews and record
reviews regarding ability to consent, adaptive behavior age, previous
26 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

sexuality education and IQ were then analyzed. The adaptive behavior

age was determined by the Vineland Adaptive Behavior Scales, Inter-
view Edition (Sparrow, Balla, & Cicchetti, 1984). IQ records con-
sisted of the Wechsler Adult Intelligence Scale-- Revised (WAIS-R,
Wechsler, 1981) for all participants with the exception of the individu-
als labeled with Severe and Profound Mental Retardation. These indi-
viduals were administered the Stanford-Binet Intelligence Scale-- IV
(Thorndike, Hagen, & Sattler, 1986).
Three years following this original study, 10 individuals were se-
lected at random to examine test-retest reliability and inter-rater reli-
ability. Subjects who had received education following the initial
phase of the study or who had become sexually active for the first time
were excluded. During this second phase, a Developmental Disabili-
ties Administration Psychologist was present to observe the testing
session and record/score the SCEA independently of the examiner.
These results were subsequently compared.

RESULTS
Internal consistency reliability was measured using Cronbach’s al-
pha for the K-Scale and the S-Scale of the SCEA. Alphas were 0.89
and 0.74, respectively. An item analysis of the K-Scale showed that
inter-item correlation ranged from 0.0 to 0.9 (i.e., introductory items
K1 and K2 were not related to any item). An item analysis of the
S-Scale showed that inter-item correlation ranged from 0.28 to 0.67.
Test-retest reliability was calculated by dividing the number of actual
matching ratings by the overall possible number of matches. Test-re-
test reliability was 0.84 for the K-Scale and 0.80 for the S-Scale.
Test-retest reliability for the overall competency determination was
0.80. Inter-rater reliability was calculated using Kappa, which mea-
sures the agreement between raters not attributable to chance. Kappa
for the individual scales was 0.96 for the K-Scale and 0.92 for the
S-Scale. Inter-rater reliability for the overall competency determina-
tion was 1.0.
A factor analysis was then calculated in order to examine the under-
lying psychological dimensions of the SCEA. Prior to factor analysis,
the suitability of the correlated matrix was determined by computing
Bartlett’s Test of Sphericity (x2 = 853.9, p < .0001), the Kaiser-Meyer-
Olkin Measure of Sampling Adequacy (.81), and by the number of
 Original Research 27

off-diagonal elements in the anti-image covariance matrix greater than

.09 (23%; Dzuiban & Shirkey, 1974). All of these indices fell within
normal limits (Zillmer & Vuz, 1995). The number of factors extracted
was determined a priori by the Scree Test (Cattell, 1966). Two factors
were prominently displayed on the Scree plot. A principle components
analysis revealed a 2-factor solution that accounted for 57.6% of the
total variance. This unrotated and orthogonal solution was satisfactory
and interpretable and thus no additional rotation of the factor model
was attempted. The dimensions displayed in Table 3 can be described
as follows: Factor 1, Knowledge of Human Sexuality, composed pri-
marily of items on the K-Scale and Factor 2, Ability to Protect Self,
composed primarily of items on the S-Scale.
Next, the scores on the SCEA were compared to the independent
interdisciplinary team evaluations and participant characteristics. The
instrument’s determination was compared to the team’s decision for
the 69 mentally retarded individuals using a discriminant analysis.
TBI subjects were not included in this particular analysis due to the
small sample size. The SCEA had high predictive validity with the
team decisions, x2 (7, N = 69) = 80.55, p < .01, with the critical items
of the K-(Items #7 and #8) and S-Scales (all items) of the SCEA
having a 91.3% correct classification rate (see Table 4). Using the
entire sample, Chi Squares showed significant differences between the

TABLE 3. Two-Factor Pattern Matrix

Variable Factor 1 Factor 2

Knowledge Item 5 0.88
Knowledge Item 7 0.84
Knowledge Item 8 0.84
Knowledge Item 12 0.84
Knowledge Item 9 0.78
Knowledge Item 10 0.77
Knowledge Item 11 0.76
Knowledge Item 6 0.62
Safety Practices Item 3 0.62
Knowledge Item 4 0.58
Safety Practices Item 2 0.8
Safety Practices Item 5 0.75
Safety Practices Item 4 0.72

Note. Factor loadings < 0.30 have been omitted. Factor 1 = Knowledge of Human
Sexuality. Factor 2 = Ability to Protect Self.
28 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

TABLE 4. Discriminant Analysis Classification Results

Predicted Group Membership Using the SCEA

Competent Not Competent
Individuals Deemed Competent by the 29 2
Interdisciplinary Team 93.5% 6.5%
Individuals Deemed Not Competent by the 4 34
Interdisciplinary Team 10.5% 89.5%

Note: Percent of Grouped Cases Correctly Classified by the SCEA = 91.3%, Prior
probability for each group = 0.50, discriminant functions retained in the analysis = 1,
eigenvalue = 2.56, Percent of variance = 100%, canonical correlation = 0.85, Wilks’s
Lambda = 0.28

competent and non-competent groups in the areas of previous sexual-

ity education, x2 (1, N = 80) = 21.65, p < .01 and current sexual
activity, x2 (1,k N = 80) = 10.05, p < .01. ANOVAs were significant
when evaluating IQ scores, F (1, 78) = 12.97, p < .01 and adaptive
behavior age scores, F (1,78) = 9.22, p < .01. Specifically, those who
were judged by the SCEA to be competent to consent were more likely
to have had sexuality education or sexual experience and had signifi-
cantly higher psychometric intelligence (FSIQ = 65, SD = 11) and
adaptive behavior age scores (9.4 years, SD = 3.6 years) than those
individuals judged incapable of consenting (FSIQ = 46, SD = 12,
adaptive behavior age = 6.7 years, SD = 2.9 years). Performance on
the two scales of the SCEA by the different groups is presented in
Table 5.

DISCUSSION
The present data show that the SCEA is an indicator of the ability to
consent as defined by this study. Current results indicate that this scale
is reliable and valid. It exhibits high internal stability and inter-rater
reliability, as well as satisfactory test-retest reliability. Internal stabil-
ity of the K-Scale could be improved by removing items K1 and K2
from the analyses but since they serve an important clinical purpose
(i.e., putting the individual at ease since they are introductory, easy
and not sexual in nature) and have high face validity, they were re-
tained for all analyses with the exception of the factor analysis and
discriminant analysis.
 Original Research 29

TABLE 5. Performance on the SCEA by Group

Group K-Scale S-Scale

Mean (SD) Mean (SD)
Traumatic Brain Injury 7.82 (0.34) 2.45 (0.15)
Mild Mental Retardation 7.06 (1.43) 2.40 (0.26)
Moderate Mental Retardation 6.17 (1.44) 2.17 (0.51)
Severe/Profound Mental Retardation 5.25 (1.14) 1.83 (0.78)

Note: For the K-Scale the data presented are the number correct out of a total of 12. For
the S-Scale the data presented are the number scored positively out of a total of 5.

A factor analysis indicated that the SCEA is made up of two under-

lying constructs. Factor 1, Knowledge of Human Sexuality, represents
a general sexuality information component. Factor 2, Ability to Pro-
tect Self, consists of items targeting the ability to make choices and act
upon those decisions. Characteristics that influenced an individual’s
ability to consent included previous sexuality education, current sexu-
al behavior, IQ, and adaptive behavior age. Specifically, individuals
who had received prior sexuality education and individuals who were
sexually active at the time of the interview were more likely to be
found competent to consent to sexual activity. Higher full scale IQs
and adaptive behavior ages were also related to competency. These
findings indicate the importance of sexuality education and experience
and the role of intelligence and functional behavior in the competency
of cognitively impaired individuals.
Potential limitations of the study include the presence of a second
person during the test-retest/inter-rater reliability phase and the small
sample of TBI participants. It is hypothesized that test-retest reliability
findings may have been influenced negatively by the presence of the
second individual in the room by increasing discomfort with the mate-
rial and potentially causing individuals to be less likely to give more
elaborate and subsequently correct responses. The small sample size,
particularly of the traumatically brain injured group was also a limita-
tion. Given the distinct differences between these two populations, it
will be advantageous to separate them for future research. Consent
research as a whole is limited by the nature of the current methods
available to assess competency to consent to sexual activity (i.e., court
30 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

decisions and team decisions). Criteria differ from state to state and
courts have made decisions based on numerous factors. The nature of
the interdisciplinary team is problematic since there is no standardized
membership or method of making decisions about individuals.
Despite the limitations listed above, preliminary findings of the
utility of the assessment are positive and provide several potential
clinical applications. First and foremost, the SCEA can be used to
protect the rights of cognitively impaired individuals. This is particu-
larly important for those individuals who are not participating in a
formal program and do not have an interdisciplinary team to assess
specific competencies. Second, the SCEA may be used in many set-
tings, including hospitals, group homes, rehabilitation facilities, and in
forensic cases in which there has been a suspected sexual assault of a
cognitively impaired individual. Within the forensic realm, many
cases have arisen which involve an individual without cognitive im-
pairment engaging in sexual relations with an individual who does
have cognitive deficits. Typically, a family member is the individual
who makes the charge against the non-impaired individual. In this
case, the SCEA provides an important role in the determination of the
competency of the cognitively impaired individual and subsequently
whether or not a crime is likely to have been committed (i.e., second-
degree rape or other sexual offense). Third, the assessment identifies
specific information (K-Scale) and/or skills (S-Scale) needed by any
given individual to be deemed competent or identifies areas of needed
education to increase effective safety practices in competent individu-
als. This is particularly important as this assessment exists to promote,
not stifle, sexual rights. The SCEA outlines concretely what each
individual requires to be deemed competent, and since some educa-
tional programs currently exist for cognitively impaired people (see
Kempton, 1988), in many cases, specific interventions can be recom-
mended and implemented. In the case of an individual who is not
deemed competent and is unlikely to be able to acquire the necessary
skills and information, the assessment at a minimum will lead to
concrete recommendations to increase the safety skills of that individ-
ual. Fourth, the nature of the assessment allows a relatively quick
preliminary determination of competency, which can then be assessed
further through functional assessments and formal neuropsychological
measures, if necessary.
In addition, this study opens other avenues of inquiry. First, the
 Original Research 31

SCEA should be validated with other cognitively impaired popula-

tions and its use with brain-injured individuals must be expanded. In
particular, within the traumatically brain injured population, deficits
such as impulsivity, decreased abilities to plan and organize, disinhibi-
tion and poor judgment are likely to interfere with the ability to make
good decisions in many realms including that of sexual activity. It is
important to study the functional aspect of these deficits in order to
effectively assess competency to consent to sexual activity. It is likely
that severely traumatically brain injured adults will have little to no
difficulty with the information required by the K-Scale but will be
unable to pass the items requiring social judgment on the S-Scale.
Second, further investigation of the cognitive components involved in
the ability to consent to sexual activity should be expanded upon using
comprehensive neuropsychological procedures. Neuropsychological
testing of cognitively impaired individuals will be of interest in order
to delineate specific cognitive abilities utilized for consenting to sexu-
al activity. In turn, this will assist professionals in creating and utiliz-
ing the most appropriate and effective educational programs and inter-
ventions for cognitively impaired individuals.
A larger goal of this research was to educate forensic neuropsychol-
ogists of the issues involved in sexual consent in the cognitively im-
paired population. It is important that providers and caregivers have
guidelines with which to determine the competency of clients to con-
sent to sexual activity. Obtaining a balance between preserving human
rights and protecting nonconsenting individuals is often difficult. The
lack of a psychological tool to determine ability to consent creates a
social environment in which many individuals are denied rights or are
placed in precarious situations. Individuals who are denied rights are
kept from developing intimate relationships, which can have wide-
ranging health benefits. Individuals who lack basic safety skills or
integral information are placed at risk by being unable to resist un-
wanted advances or protect themselves from unwanted pregnancies
and diseases.
With the continued emphasis on integrating individuals with cogni-
tive impairments into communities, issues of the right to privacy and
the right to freedom of expression have become more complicated.
Nowhere is this more evident than in the question of sexual consent.
Use of an assessment procedure which incorporates consistent legal
criteria is needed to ensure appropriate and consistent decisions across
32 JOURNAL OF FORENSIC NEUROPSYCHOLOGY

the many types of professionals who may be asked to assess this

specific competency. This research provides the first step in quantify-
ing an assessment approach of sexual consent, and it offers a means of
evaluating the education needs of these same cognitively impaired
individuals.

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RECEIVED: 10/27/98
REVISED: 05/19/99
ACCEPTED: 06/21/99

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