Cognitive disabilities are defined as long-term mental impairments, including those of intellectual and developmental order. The terms cognitive and intellectual are often used interchangeably, with intellectual disabilities defined as a limitation in academic functioning based on standardized intelligence tests and IQs, associated with IQ scores <75; limitations in learning behavior to one or all three skill types—conceptual skills, social skills, and practical skills; and manifestation of the disability before the age of 18 years [1,2]. Noncognitive mental conditions, including psychiatric and psychosocial conditions, are associated with anxiety, mood, and personality disorders.

Sexuality is a holistic concept encompassing sex, gender identity, orientation, eroticism, intimacy, and reproduction [3]. It is influenced by physical, psychological, social, financial, cultural, legal, historical, and spiritual factors [3]. Sexuality includes sexual expression. The central debate surrounding the rights of people with cognitive disabilities, who wish to express their sexuality, may affect the balance between harm reduction and free sexual expression [4]. If a person living with a cognitive disability is proven to have a reduction in consensual capacity, the protection versus empowerment paradox may begin to emerge [5,6]. The legal, clinical, or ethical system needs to find a balance between the 2 competing interests; protect the person from sexual abuse, by restricting their sexual expression; or allow them to express their sexuality, but in limited capacity as a safety measure [5]. An important factor affecting the resolution of the protection versus empowerment paradox is the degree to which an individual can demonstrate their capacity to consent in a sexual relationship.

In the United States, the legal definition of consent is rooted in the 3 legal criteria of consent as reported by Stavis [7] in 1991. A placeholder definition of consent requires that a person communicates a “knowing, intelligent, and voluntary agreement to engage in a given activity” [8,9]. Assessments that measure consensual ability for a sexual relationship are often based on a person being able to satisfy all three of the following criteria [3,7,10,11]:

These 3 legal criteria of consent are quite controversial, because thresholds vary from basic to complex levels of acceptability, depending on differences in state laws [12]. People with cognitive disabilities may be unable to fulfill requirements in one region of the United States, yet their ability to demonstrate consent could be acceptable in another region. Outside of the United States, consent definitions may differ among countries such as the United Kingdom, Australia, Ireland, and Canada. In Canada, criminal offenses, including those regarding consent, are governed by the Criminal Code [13]. Criminal law powers are under the exclusive jurisdiction of the federal government; however, the fulfillment of these laws is often handled by provincial regulations (eg, dealing with sexual assault on university campuses) [14]. The Criminal Code defines consent with a capacity element, which checks if an individual understands the nature of sexual activity, identity of those involved, and their ability to communicate the choice itself [13].

The capability of people to satisfy sexual consent criteria is often determined by either medical professionals or neuropsychological experts in the judicial system. Common paradoxes have emerged, owing to the philosophical arguments surrounding people’s ability to give consent. These paradoxes include whether people can demonstrate rudimentary versus contextual understanding of the sexual relationship [15] and the degree of flexible versus inflexible behavioral allowances in such a relationship [16]. Power dynamics, regarding those who are legally able to discern a person’s consensual ability, are met with arguments of feminism, ableism, and disability rights movements [17,18]. The 3 legal criteria of consent have been accused of failing to consider an individual’s values, culture, and life history [10,19]. Outside the United States, the United Kingdom and Wales follow the Mental Capacity Act 2005, which has its own criticisms. Although the Mental Capacity Act has similar themes to the 3 legal criteria of consent, it too is criticized because “its best-interests approach is paternalistic” [20]. The Mental Capacity Act does not exactly guarantee the rights of an individual, instead only working if practicable to do so [21]. Some experts argue that an individual’s sexual preference is a form of personal expression, not always systematic or organized, including the weighing of risks and benefits, unlike the 3 legal criteria of consent by the medical and judicial systems in the United States [10,19]. Consent capacity is considered a state instead of a trait, meaning it is expected to change over time [11], and it must be determined in the present moment: not a decision made ahead of time [22]. Assessments of a person’s ability to demonstrate capacity in 1 or all 3 prongs of consent can be determined by questionnaires such as the Mini-Mental Status Exam (MMSE) to determine rationality or the Tool for the Assessment of Levels of Knowledge Sexuality and Consent [11]. However, the use of these assessments is controversial because of the following:

There is no clear definition, criteria, or standard for determining a person’s sexual consent capacity [5,9].

In the late 1960s, the United States Supreme Court declared constitutional rights for people with cognitive disabilities, who were cared for under the powers of the state governments. These constitutional rights were created to protect vulnerable people from harm related to sexual exploitation and abuse, while also upholding their rights to sexual expression. These rights include several categories, including those related to family matters [7] and sexual self-determination [4]. Although it may seem obvious that people have default rights to privacy, sexuality education, and freedom of choice for sexual expression [3,25], these rights can be restricted by either informal or formal control systems. Informal control systems such as civil liability [26], immutable family policy [22], and residential policy [4,27,28] may interfere with a resident’s rights to sexual expression, whereas restrictions from formal control systems may be decided by clinical, ethical, and legal issues [26]. The central reason to why these systems may restrict a person’s right to sexual expression is based on the theme of consent [1,15,18,29]. New York Penal Law Section 130 states that a lack of consent is an element of every conceivable sexual offense, as written in the article, and adults in a sexual relationship must all be consenting [30]. Since 2012, the United Nations has moved toward an equalization stance on the sexual rights of people living with cognitive disabilities. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) states that people with cognitive disabilities reserve equal rights to legal capacity as all other people within all aspects of their lives, including the rights to intimate relationships [31]. Canada has accepted and ratified Article 12; however, with reservation, resulting in continued use of substitute decision makers (SDMs) to assist those living with cognitive disabilities in Canada [32]. The United States has been hesitant to fully accept and ratify the UNCRPD statement on the rights of people with disabilities [33]. It is important for legal systems to establish the components of human rights, because this increases the awareness of any potential violations.

Sexual abuse occurs when one person forcefully or covertly performs nonconsensual sexual acts, including touching, kissing, oral sex, and anal or vaginal intercourse [3,34]. Sexual abuse may also involve threatening, coercing, tricking, or manipulating another person into unwanted sexual contact or into such contact in which the other person does not have the capacity to consent [11]. According to the Criminal Code of Canada, an alleged case of sexual assault requires a juridical system to check if people take reasonable steps to ascertain consent [13]. Other elements are also checked for, such as the presence of physical force, threats, underaged individuals, fraud, sexual intentions and motivations, recklessness, incapacitation, and chemical impairment and those in positions of authority or trust [13].

People with cognitive disabilities have a greater risk of being sexually abused [3,25]. Although the statistics on sexual abuse are difficult to determine, one report predicts that 39% to 68% of female children and 16% to 30% of male children with cognitive disabilities will be sexually abused before they are aged 18 years in North America [35,36]. After interviewing over 40,000 abused victims in Israel, including children up to the age of 14 years and ranging from minor to severe cognitive disabilities, the incidence of sexual abuse was found to be consistent with the previously stated percentages [37]. A survey of over 5000 adult women living with cognitive disabilities in North Carolina reported that 48% of sexual assaults were committed by people who were currently or previously in an intimate relationship [38]. A 15-year longitudinal study in Ireland determined the following statistics after 118 proven and confirmed episodes of sexual abuse [39]:

The zeitgeist to uphold and safeguard the sexual rights of persons with cognitive disabilities may differ from past ideals, which were weighted toward the protective sides of the protection versus empowerment paradox [5,40]. Societal views on the amount and types of sexual expression that people with cognitive disabilities were expected to experience were driven by moral aesthetics, which are beliefs and morals that affect the general public’s preference to accept certain behaviors while rejecting others. Thus, people with cognitive disabilities were historically denied the right to express their sexuality, because society may have considered them to be the following:

The moral aesthetic to control how people with cognitive disabilities express their sexuality are bound to clinical, ethical, and legal issues [26]. There is a potential overlap among these issues.

Social acceptability struggles to find a balance between sexual acts that are safe versus unsafe, normal versus deviant, and legal versus illegal and what role sexual functioning has in the first place [34].

Clinical policies in a LTC facility could be undeveloped or inconsistent with those living with cognitive disabilities and their sexual expression, resulting in the facility facing repercussions if sexual expression is allowed to continue [26,56]. LTC facilities for people with cognitive disabilities default to a protective care paradigm, with staff and family members restricting such residents from sexually expressing their behaviors to reduce the risk of potential sexual abuse [29]. The result is that such residents may resort to opportunistic moments of privacy to act on their sexual desire [48,57], which may lead to unsafe sexual behaviors [56,58]. Alternatively, they could be affected by iatrogenic loneliness, which is a type of loneliness created by extensive long-term residence policies that prevent them from having privacy and intimacy, resulting in feelings of frustration and unhappiness [28,59]. LTC staff views on sexual expression differ according to the experience levels of staff members, with frontline staff being more accepting of such behaviors than the managers; however, gay residents are more likely to be restricted to such behaviors in general [29]. Ethical views, independent of those with cognitive disabilities, include moral and religious beliefs that others enforce regarding sexual behavior [26]. In theory, a LTC facility must support such a resident’s rights to sexual autonomy; however, this obligation is abandoned once the administration, facility staff, or individual’s family members oppose the behavior [4,22]. Fear of legal repercussions and public ridicule are potential reasons why such people’s sexual interests are downplayed or avoided by family, caregivers, or long-term facility staff [23]. Overall, the community is capable of supporting the sexuality of people with cognitive disabilities, upholding attitudes of community inclusion and opportunity; however, personal belief systems are affected by societal attitudes and are what prevent caregivers from providing experiential guidance [34,60]. Negative attitudes, such as the eugenics movement, were perhaps too difficult for North American society to discard entirely [48,61]. Thus, society morphed them to the new era, resulting in new-genics or neogenics [62]. The intention of determining a person’s capacity to consent to sex has remained a plague in the societal attitude to desexualize people with cognitive disabilities, under the moral esthetic to either protect such individuals from themselves or to protect the world from them [63].

Sterilization is the process of inhibiting a person’s reproductive ability. It inflicts physical and moral injuries to those who do not consent to it [21,64]. The eugenics movement of the late 19th century led to an increase in nonconsensual sterilization practices, sometimes with the use of deception [21]. Eugenicists believed that the human race could be improved by practicing either positive or negative eugenics, which either encouraged the selective breeding of those with desirable traits or the prevention of defectives from having offspring [65]. In the early 1960s, 28 US states had sterilization protocols, some made compulsory and executed upon people with cognitive disabilities, without their consent [3].

The justification for sterilization was often influenced by the eugenics movement, which believed that feebleminded people would reduce the overall intelligence of the population, especially if they were allowed to reproduce [21]. It was believed that people with cognitive disabilities would threaten the heritage of intelligence [40,66,67]. In actuality, the eugenics idea to use selective breeding to control for inherited psychological traits was proven to be false [21,68]. Feeblemindedness was previously used as a conveniently vague grouping, used to classify those who were outside the obvious diagnostic labels such as schizophrenia [21]. Some countries sterilized those diagnosed as feebleminded; however, it was later realized that many of these people were actually affected by a lack of education [21]. In a report from India that surveyed nearly 20,000 women, higher levels of education increased the likelihood of modern contraceptive use over sterilization; however, the degree of cultural, socioeconomic, educational, and accessibility to modern contraceptives had a profound effect on choice [69]. In India, sterilization was more common in women living in low socioeconomic classes, especially in socially disadvantaged women with low education levels [69]. Sterilization was sometimes ordered because of the protection versus empowerment paradox. Some systems believed that women with cognitive disabilities would fail to provide adequate care for any children they would have; thus, these potential mothers were prevented from leaving their institutions unless they agreed to become sterilized [70]. With the exception of reducing pregnancy and reducing bodily fluids, sterilization of people with cognitive disabilities was found to be ineffective in achieving any of its goals [71,72]. There is limited evidence available to support sterilization for the management of menstruation, with some experts agreeing that cases involving clinical control of menstrual bleeding are better handled by long-term contraceptive injections [73].

There have been major changes in legislation regarding the practice of nontherapeutic sterilization [21]. In Canada, a major case occurred in 1986. This E (Mrs) versus Eve case argued that court-ordered sterilization of people, living with cognitive disabilities, would be an infraction against their rights. The mother requested sterilization of her daughter, Eve, aged 24 years, to avoid the risk of pregnancy. After a contentious appeal, the request was denied. The Supreme Court of Canada ruled in favor of Eve, due to a lack of evidence suggesting that forgoing sterilization would have a detrimental effect on physical or mental health in Eve [74]. The choice to allow nontherapeutic sterilization of people with cognitive disabilities, in which a procedure would leave a person sterile despite having no life-threatening condition to begin with, was deemed a choice the courts could not safely exercise [21,74]. Later reports have claimed that some countries have implemented human rights protection to prevent nonconsensual sterilization practices; however, some countries have no such safeguards in place [21]. The following references contain additional information pertaining to the statistics and country policy on sterilization: Stein and Tepper [3], Rowlands and Amy [21], Braun et al [64], Tilley et al [70], Shea and Kevles [75], and Park and Radford [76].

There are psychological and physical benefits of safe sexual expression. Improved self-esteem, cognitive functioning, social relationships, mood, and feelings of independence have been reported as potential benefits [77,78]. Sexual expression may reduce the risk of cancer and cardiovascular disease [77]. There are associations between sexual expression and weight loss, reduced risk of heart disease and stroke, and bolstered immune systems [79]. For older adults with cognitive disabilities, sexual expression has been reported to reduce sensitivity to pain, improve cardiovascular health, reduce the likelihood of depression and loneliness, and improve overall well-being [80]. Sexuality is central to an individual’s health and well-being [4].

Approaches endorsing the use of functional capacity have shifted away from diagnostic-based assessments (eg, IQ and mental age scores) of decision-making ability to alternative identifiers. There was an overall emphasis in the literature to rely less on mental assessment outcomes when determining the sexual decision-making capacity of people with cognitive disabilities [17,28,85,91,102]. The problem with mental assessments is the risk of social or cultural factors, concluding that people with cognitive disabilities are incompetent in society, which results in such people being placed in the cloak of competence [104]. Repeated assessment measures show mixed results for the same person, varying between having and not having a sexual consent capacity [3]. Thus, even if people with cognitive disabilities are able to demonstrate sexual consent capacity, social judgment may still suspect such people as being less than capable when compared with normative scores of intelligence and adaptive behavioral ability [91].

Despite the shortcomings of mental assessments, reports vouching for functional capacity approaches recommended to either expand the assessment’s ability to check for adaptive behavioral domains [1,19], featuring the use of neuropsychological assessments [88] or relegate such mental assessments to a supporting role [103]. Although a mental state assessment such as the MMSE may provide a basic idea on how well a person with cognitive disabilities makes rational decisions, it was recommended to consider other domains of functional capacity such as literacy skills, self-care skills, independent care ability, and physical upkeep [1]. A secondary diagnosis, including checks for both cognitive and functional ability, should be used when making a capacity judgment [103]. A report by Bogacki et al [90] introduced the Social Sexual Awareness Scale, a scale based on the 3 legal criteria of consent that checks a person’s knowledge for contextual and safety factors such as risk of disease, contraceptive use, age of partners, and the handling of unwanted advances [90]. Another recommendation was to assess decision-making capacity on act-specific decisions (eg, being able to make a decision on a sexual relationship, retain that decision, and have a rudimentary understanding of the sexual act) instead of theoretical ability [96]. One report suggested a holistic approach, complete with a progressive committee [19], supplemented with theories of Consensual-Minimalism and Consent-Plus by Wertheimer [105]. Consensual-Minimalism checks for the most straightforward sense of consent among those in a relationship, whereas Consent-Plus pertains to situations where consent is necessary in addition to other factors that are additionally required to make the sexual relationship permissible (eg, social, religious, and cultural factors) [105].

The person-centered approach is philosophically driven to promote ethical integrity when working with people to determine their consent capacity [4]. Discussions with the people themselves will enable a better understanding of both their sexuality and cognitive disabilities, which are essential for determining their preferences [15,99]. The person-centered approach needs to be flexible to accommodate the specific needs of each individual, promote their dignity and autonomy, and uncover potential contexts that could identify risks associated with sexual expression [16,18]. In terms of philosophical components throughout the literature, the person-centered approach was recommended to include the following (people living with cognitive disabilities, who are to be provided such services, will be referred to as clients in this list):

One report presented a system for nurses to use, which adheres to some of the previously mentioned philosophical components. The system comprises the 4 themes of the code, Professional Standards of Practice and Behavior for Nurses and Midwives [106]. The 4 themes are prioritize people, practice effectively, preserve safety, and promote professionalism and trust [16]. It includes considerations such as withholding bias, open communication, and the committee approach. A report by Wilkins [107] suggested an emphasis among a substituted judgment, best interest standard, or a mix of the two. The substituted judgment standard emphasizes the use of advanced directives, whereas the best interest standard emphasizes the balance between risks and benefits, allowing some restricted forms of client sexual expression if the potential benefits are worth the risks.

This is perhaps the most comprehensive approach in terms of providing a detailed care plan for determining sexual consent capacity in people with cognitive disabilities, while also discussing plans for enhancing consent capacity if necessary. The key features of the integrated approach include an interdisciplinary team discussion process, using aspects of a person-centered approach, complete with other holistic considerations. With the service user’s permission, the interdisciplinary team can be comprised an array of practitioners including physicians, occupational therapists, psychologists, social workers, nurses, and legal guardians of the person involved in the discussion [22]. The integrated approach is likely to encompass the following themes:

Friends and family of the evaluated person are encouraged to play a role in the discussion process [22]. Team input determines the restrictions of sexual expression, if any and medications to be prescribed, if any, while also noting contextual factors of the relationship, such as potential risks of coercion or abuse [22,92]. Overall, the integrated approach focuses on holistic contextual factors throughout the assessment process, including factors such as the person’s communication ability, access to privacy, informed consent ability, family involvement, religious beliefs, and social history [22,88].

The contextual approach was aimed at individuals with mild cognitive disabilities and has 2 components [12]. First, whenever a judicial system assesses the consent ability of an individual living with a cognitive disability, the ruling must meet the same standard as anyone else. Second, it is recommended that consent ability be focused on the situational context rather than on intellectual attributes. For example, an individual with a cognitive disability may show consent capability in a healthy relationship but not when their partner uses coercion or threats.

The first component becomes especially important when consent definitions require an understanding of tests involving the nature, consequences, and moral dimensions of sexual acts [12]. It is important to keep assessments among individuals the same, whether they have intellectual disabilities, because this focuses on social innerworkings within an intimate relationship [12]. This component also respects the capabilities of individuals with cognitive disabilities. The second component realizes that consent ability is affected by social constructs such as communication, social skills, and community support. A contextual approach reassures the balance of protection toward vulnerable persons while respecting their consensual rights to sexual relationships.

There was a pattern in the reports explaining how education could improve the sexual decision-making ability of people living with cognitive disabilities. The pattern starts by mentioning the 3 legal criteria of consent components (knowledge, understanding, and voluntariness), followed by a defined set of basic skill checks to determine whether such people could address these components. Note that the 3 legal criteria of consent have a knowledge component, which defaults to being improved by sex education; however, its other components, such as understanding, may benefit from education as well [3,5,40,86]. The basic skill checks included areas that expanded upon the three legal criteria of consent [3,5,11,40]:

The reports endorsing educational approaches described measures that check for these areas, such as the Sexual Consent and Education Assessment [86], Sex Knowledge, Experience and Needs Scale for People with Intellectual Disabilities [40], and Tool for the Assessment of Levels of Knowledge Sexuality and Consent [11]. For educational programs themselves, the recommendations were the Living Your Life—The Sex Education and Personal Development Resource for Special Education Needs [86,108] and comprehensible evidence-based programs with simple language [3]. It is important for the aforementioned assessments to be used only for the identification of gaps in a person’s knowledge of safe sexual acts, followed by providing educational programs to rectify such gaps if necessary [48,92].

In addition to people with cognitive disabilities, it was encouraged for staff in LTC facilities to receive education to better identify the difference between healthy and unhealthy sexual behaviors and how to resolve such situations accordingly [27,34]. Both families and LTC staff were recommended to receive education to better understand the rights to intimacy, sexuality, and privacy for people with cognitive disabilities [27]. It was suggested that staff use LGBTQ toolkits, which are manuals that describe ethical approaches when working with older female adults who have these sexual identities [94].

Criminal justice systems were encouraged to use education and training programs to increase the awareness of communication disorders, while also considering alternative communication platforms and multidisciplinary collaborations with relevant disciplines [109]. Children and people with communication disabilities are at a disadvantage when disclosing their experiences of sexual abuse to a criminal justice system, often because the system’s procedures may not be adapted to meet the needs of such people [109-111]. Sexual abuse cases showed improved outcomes when collaborative support was combined with communication awareness, such as for law enforcement and child protection services [111]. Improved access to sexual and gender-based violence education for vulnerable populations, such as refugees, was also recommended in addition to encouraging inclusion in community support programs [109].

There were 3 articles that argued for both disability and feminist rights movements to overcome negative attitudes within communities [17,18,102]. Doyle [18] described how social construction theory for feminism relates to people with cognitive disabilities, defining it as culturally set norms, rights, and commitments that detail expectations on how people of differing statuses relate to one another [112]. Doyle [18] also explained that script theory is a form of construction theory that influences a person’s sexual behaviors by external and internal factors, defined as society’s mutually shared conventions and norms and personal motivations, respectively [18,113]. Script theory explains how the sexuality of a person with cognitive disabilities is potentially influenced by critical factors beyond just sex drive and instinct: it has learned behavior characteristics, influenced by social contexts, affecting how people express themselves [18].

Negative cultural attitudes, such as rape culture, should be countered by plans using lifelong sexuality education and policy change with intermovement collaboration, addressing the aforementioned internal and external factors [17]. A person with a cognitive disability could be incapable of demonstrating or understanding consent capacity, due to a lack of knowledge or having misaligned sexual scripts [18]; however, educational interventions may allow that person to reach capacity [5]. Note that a strict education approach emphasizes sexuality instruction to fill missing gaps in knowledge and understanding of consent criteria, although the attitude approach is often based on social construction theory, suggesting the use of education to reframe a person’s sexual scripts.

The attitude approach also discussed how a person with cognitive disabilities and their external factors such as government, legal systems, administration, practitioners, staff of LTC facilities, and family could be influenced. A study by Syme et al [85] determined that a proactive approach to policy development in LTCs was recommended, in addition to addressing negative staff and family attitudes. Addressing the lack of awareness of sexual expression in people with cognitive disabilities, making necessary environmental changes to ensure privacy, identifying staff or family attitudes, and tracking the person’s sexuality with recurrent assessments were the top areas to address in LTC facilities [85]. The study by Syme et al [85] found that all nursing directors (n=20) endorsed the use of sexuality education, with many endorsing attitude discussions with staff and family about aging sexuality, changing negative attitudes, increasing people’s awareness of their own attitudes, and emphasizing sexual health. A report by Victor [23] mentioned the use of staff attitudes about intimacy and dementia survey proposed by Kuhn [114] to measure staff or caregiver attitudes on this topic. A collaborative reform process was recommended to change legal terms (eg, mentally impaired to vulnerable or protected persons) when reframing government views that hold people to a disproportionately higher standard [92]. For committee approaches, members were tasked with reducing the risk of personal bias within the leading assessor, by providing a balanced exchange of ideas in a competent and thorough manner, throughout the consent capacity determination process [5].

Advanced directives are contingency plans that allow people to consent to specific sexual acts ahead of time or grant decision-making power to an SDM for an applicable future context [115]. The plan involves the person, who is legally capable of providing sexual consent at the time, the past self, to set up a contingency for an impending period when their sexual decision-making ability may become compromised, the future self. This compromised ability to provide sexual consent may occur owing to impending conditions from events such as dementia, stroke, or brain surgery. There are two types of advanced directives [115]: instructional directives and proxy directives. The instructional directives can be either permissive, allowing permissions to take place when they legally could not or restrictive, halting actions from happening when situations would normally favor them [115]. The proxy directive features the use of SDMs, either as a surrogate decision maker or the power of attorney [115].

A person’s ability to consent to sex can change over time, varying across situations in terms of capacity and sexual preference [3,5,11]. Unless legal exceptions have been established, it is illegal for consent to be given by someone else [7]. Advanced directives are noted for upholding a person’s core values and religious beliefs when resolving decisions involving sexual relationships, perhaps preserving the sexual preferences of a person living with a cognitive disability [77]; however, the drawback is that the person is locked into certain conditions that may not coincide with the desires of the future self [28]. The use of advanced directives in this manner is referred to as the substituted judgment standard [28]. One report presented the Prior Consent Thesis, a philosophy-driven argument that states that a competent person can give valid prior consent to a competent partner, in which consent could remain even after mental capacity in one person becomes compromised [100]. Sexual advance directives are not promises that could lead to the promiser being locked in servitude. The advance directive is not about owing a commitment; a person’s advance directive merely states that such an encounter be allowed if they token consent [100].

Using the cognition-plus test, this approach contains three steps [81]: (1) check if the individual is capable of communicating a desire for an intimate relationship, (2) check if the individual is aware of the nature and consequences of sexual decisions, and (3) determine the adequacy of an individual’s decision-making support network.

If step 1 is unfulfilled, the test ends. Individuals who cannot determine an intimate relationship cannot qualify as sexual agents. If steps 1-2 are fulfilled, the individual is deemed to have consent capacity without the need for assistance. Step 3 becomes active only if step 2 is unfulfilled. The determination of an individual’s support network is contextual-based, guided by the fiduciary law [81]. The legal system would need to check if the support network is free from conflict of interest, while showing an understanding of the individual’s sexual preferences, with contingencies to protect the individual against consequences of sexual encounters, such as pregnancy or sexually transmitted disease [81]. The support network is expected to be different among individuals but may comprise the individual’s friends, family, institutional staff, and SDMs. SDMs are not recommended to act alone in a support network [81]. It is possible that people in the support network may have disagreements on the individual’s preferences, in which case these disagreements will need to be resolved in a civil manner before this approach is implemented [81]. The legal system should not intervene whenever a civil dispute occurs: its focus should only be on checking the support network’s adequacy [81]. It is important to note that support networks should not exist to make decisions for people with cognitive disabilities but only to assist them in achieving their decisions [81].