Abstract:
In South Africa, the Sexual Offences Act protects people from unwanted sexual activity through the crime of rape, and simultaneously respects their sexual decision-making capacity by only criminalising sexual activity that takes place in the absence of consent. For persons with mental disabilities, including mild Down syndrome, the courts determine capacity to consent by questioning how much an individual with such a disability understands about the nature of the sexual act and its reasonably foreseeable consequences, an approach known as the ‘capacity framework.’ Under the ‘capacity framework,’ only those women whose disability meets the stipulated severity threshold will be deemed as lacking capacity to give valid legal consent to sexual intercourse. The law therefore, recognises that some women with mild Down syndrome can give valid legal consent to sexual intercourse. This approach is more progressive compared to the ‘status framework’ adopted in Malawi, Uganda and Zambia, which criminalises sexual activity with all women and girls with intellectual disabilities regardless of the severity of the disability.
This study argues that the ‘capacity framework’ is problematic because it fails to recognise the universal legal capacity of all women with mild Down syndrome to consent to sexual intercourse, in contravention of article 12 (2) of the Convention on the Rights of Persons with Disabilities (CRPD). Article 12 (2) provides that all persons with disabilities have universal legal capacity in all aspects of life, including sexual decision-making. The ‘capacity framework’ therefore perpetuates the de-sexualisation of women with mild Down syndrome. Although the ‘capacity framework’ is used as a starting point, the study recognises that the de-sexualisation of women with mild Down syndrome is not a legal problem that can be addressed by merely critiquing and amending the law, but a wider societal issue. In this context, the law is merely an instrument of cultural expression. The study’s main focus therefore, is on the interrogation of societal systems, institutions and practices that have led to the de-sexualisation of women with mild Down syndrome.
Accordingly, this study argues for a re-conceptualisation of the ‘capacity framework’ through the application of Martha Fineman’s vulnerability analysis, which expands the scope of inquiry beyond individual impairment to include wider societal factors. The study also deploys the support paradigm found in article 12 (3) of the CRPD as well as de-colonial theory to formulate ways of enhancing the sexual decision-making capacity of women with mild Down syndrome through the provision of support that is tailored specifically for the South African context. Moreover, using Michel Foucault’s genealogical theory, the study explains how relations of power have, over time, produced our current knowledge about the sexuality and sexual identity of women with mild Down syndrome and how power can also be utilised to change the narrative in favour of the recognition of their sexual autonomy.
