Prejudices of Sanism

    In regards to the civil and sexual rights of the institutionalized mentally ill, this is where ‘sanism’ is most pivotal.

“It infects out jurisprudence and our lawyering practices, is largely invisible and largely socially acceptable, and is based predominently upon stereotype, myth, superstition, and de-individualization.”(486 Perlin).

This is perpetuated by our reasoning of alleged “ordinary common sense.” Perlin says that only if we contextualize the notion of patient sexuality within our sanist society, can we adequately theorize and understand this problem. Perlin says that there is no American law “on the books” that deals with precise situation of patient sexual freedoms. Most jurisdictions mandate a limited right for sexual interactions for institutionalized mental patients.

“…why has this area– one that deals with the most personal rights–not been the subject of greater scrutiny, in court degrees, or even in substantial scholarly writing?”(489 Perlin).

He says that although nurses and psychiatric literature have paid some attention to this particular issue, there has been no attempt to call our legal policies into question. Furthermore, there has been virtually no discussion of our lack of policies regarding this crucial issue.



Rights Denied

    The international human rights law grants “the right to freedom of association with others” from the International Covenant on Civil and Political Rights. However, the Principles for Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, expressly assert the application of these rights for the mentally ill. The U.N. Convention mandates nations to

“[p]rovide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes.”(490 Perlin).

Perlin says that all of these documents provide ample evidence for securing the rights of these institutionalized individuals. The lack of community response for these lack of rights, is apart of  fundamental social policy issues. Societal fears of patient sexuality emanate from the stereotypes of sanism, and also the stereotypes which perpetuate misconceptions about patients and their potential for dangerousness. Here, there is societal short sightedness in how we approach problems such as these.

Fear of Litigation

    Perlin says the fear of litigation among institutions is a driving force in why our society has not tried to address this problem and fulfill the status quo of rights to individuals including the mentally ill. Perlin poses this question:

“[H]ow will the well-documented fear of many mental health professionals of being sued –– what some commentators term “litigaphobia”–– affect the adoption of, or compliance with, any policy that appears to increase the potential for patients’ sexual activity (for fear that litigation might quickly follow unwanted births or the spread of sexually transmitted diseases)?”(493 Perlin)

However, this fear completely disregards the possibility of patients suing for violations of their statutory rights. Besides statutory rights, they may also sue over their international human rights, or their Americans with Disabilities Act rights. The risk that under these policies, a patient could sue for deprivation of sexual autonomy, is never argued over in this specific policy debate.
    Furthermore, Perlin argues that a failure to take the issue of patient sexual autonomy seriously, also fails to understand the importance intimate relationships between patients. The opportunity for patients to engage in intimate relationships is crucial to a patients ability to reintegrate themselves into society upon release.


Paste a Video URL

This episode of is a about a man in custody at a mental hospital who claims he witnessed a rape in a break room. Despite the witness’ shaky credibility the SVU begins an investigation, but the victim denies being assaulted because of her fear that the ‘sane,’ (the rapist) will ultimately have his word over her’s, the ‘insane.’ The detectives struggle to understand what happened to this young woman, especially since her aunt and mother say she has been repeatedly institutionalized, and has reported what they thought to be false rape claims in the past. The detectives eventually learn that the mother and aunt were lying to protect the ‘sane’ rapist. This episode highlights the many misconceptions about institutionalized individuals, and their ability to have intimate relationships. However, the coercion of the patient in the episode also portrays the perception of many hospital administrators who presume that all intimate relationships between inmates, or between inmates and outsiders who come into the institution, are coerced. Institutions generally discourage sexual expression of all types, with no regards to the specific patients and their diagnosis or needs.

Presumptions of Coercion

    Perlin discusses the problem of institutions that neglect to grant sexual freedoms to their patients because of their presumptions of coercion. Sexual coercion is a valid issue within institutions, but the way we understand and take precautions for potential coercion is crucial. Perlin says that it is not enough for hospitals to deny a patient of their freedom of expression based on presumptions of coercion. However, Perlin advises that they must instead make policies that protect unwanted sexual activity, while still allowing patients to maintain their right to autonomy. The legal reality is that institutionalized patients are guaranteed at least some rights to sexual expression and autonomy. By rejecting this legality,

“…public opinion creates a social disconnect and allows for an irrational universe in which the extent to which a patients rights may be vindicated may well rest on triviality…”(496 Perlin).

The triviality which Perlin is talking about has to do with the geographic location the patient is housed in. This is the same for the reproductive and sexual rights of incarcerated pregnant women, where only three states in the U.S. have policies which prohibit the use of restraints during delivery. It is in the nature of institutions like these, to thoroughly limit and control every aspect of inmate life.

The American Correctional Health Services Association


      The American Correctional Health Services Association website discusses the use of shackles on pregnant inmates. Similar to the sexual freedoms of the institutionalized, the issue of shackling women during labor is a matter of sexual and reproductive freedoms of incarcerated women. According to the Bureau of Justice Statistics,

“…there were 115,779 females incarcerated in US prisons (6.9%) and 99,673 females incarcerated in US jails in June of 2008 (12.6%).(1) It has been reported that 6 % of all incarcerated females are pregnant.(2) Currently only three states and the Federal Bureau of Prisons have policies that expressly prohibit the use of restraints or shackles during labor and delivery; many states’ policies do not specifically address the issue.”

1.Bureau of Justice Statistics, March 2009, NCJ225619.
2. Fearn N. E, Parker K. Washington State’s residential parenting program: An integrated public health, education and social service resource for pregnant inmates and pregnant mothers. California Journal of Health Promotion. 2004; 2(4): 34–48.

The website, the American Correctional Association, and the standards of the National Commission on Correctional Health Care, mandate that correctional facilities meet recognized community standards for inmate healthcare.    

 The NCCHC’s position statement on women’s health advocates for the collaboration of both Women’s Advocacy Groups and Correctional Health Services, to construct policies and procedures that are informed on the special health needs of women who are incarcerated. The position statement also recommends that guidelines established by specialty professional groups such as the American College of Obstetricians and Gynecologists (ACOG) should be construct policies, and to guide the care of incarcerated females. The ACOG have publicly supported a ban on the use of shackles during labor and delivery,

“physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk. Typically these inmates have armed guards on-site, which should be more than adequate to protect personnel helping a pregnant, laboring woman or to prevent her from fleeing.” (3)

(3) Open letter dated June 12, 2007 to Malika Saada Saar, Executive Director, The Rebecca Project for Human Rights.

The website says that The United Nations Human Rights Committee 

“reported in their Eighty-seventh session, July 2006, that the continued shackling of detained women during childbirth after a previous recommendation to cease this practice went unheeded by the United States was against the International Covenant on Civil and Political Rights.”(4)

4. United Nations Human Rights Committee, Eighty-seventh session, July 2006, page 11.

Additionally, the ACHSA recommends that women be handcuffed in the front instead of the back during their second and third trimester of pregnancy.
    The site advocates for patients by extending information about conferences, statistics about incarcerated women and pregnancy, membership access, and career paths. However, the corporations main goal is to educate. They provide education, skill development, and support for personnel, organizations, and correctional health decision makers. The rights of these incarcerated women in relation to the sexual freedoms of the institutionalized is evident. Each group is apart of an inpatient atmosphere, where their lives are dictated by the facilities they live in. Additionally, each group is marginalized and suppressed by their affiliation with either the criminal justice system, or mental insanity. In each case, their human dignity comes into question. Furthermore, both the correctional facilities and the mental institutions, have an obligation to ensure autonomy in decisions about their inmate patients and promote a safe environment.

    In one New York hospital the policies


    In one New York hospital the policies on sexual conduct are different for male and female patients. Perlin says that in this hospital, male patients are allowed to leave the facility unsupervised for community leave, and may be given condoms upon request. However, female patients had to have their ‘competency’ assessed before they could access birth control of any kind. Not only does this issue encroach upon gender issues and sexism, it also brings us back to the problem of reintegration. In this particular hospital, will the male reintegrate into society more adequately than the female when it comes to sexual relationships? And if the woman does not meet the standards for competency, even if she is competent enough to participate is sexual activities, will this increase her likelihood to have an unwanted pregnancy? The answers to these questions are unclear, but it is clear that these patients are not granted their fundamental freedoms. The U.N. Convention on the Rights of Persons with Disabilities has proclaimed (under sections b and c)

“Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, reaffirming the interrelatedness of all human rights and fundamental freedoms and needs of persons with disabilities to be guaranteed their full enjoyment without discrimination.”