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2 Disability L.J. 1 (2022)

handle is hein.journals/dislwjn2 and id is 1 raw text is: SEXUAL CONSENT AND DISABILITY Jasmine E. Harris ABSTRACT Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent's implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled popu- lation. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique govern- mental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault laws and social norms looked quite different than those of today. Current scholarly discussions about sexual consent and mental dis- ability suffer from an outdated empirical baseline that masks critical information about the profile and experience of sexual violence. This Arti- cle creates a new empirical baseline for modern scholarship on sexual assault and disability. Based on an original survey of all fifty states and jurisprudence from the past twenty years of state sexual assault and rape appeals where the victim has a mental disability, this Article updates and critiques four major claims about sexual consent and disability in the cur- rent literature. First, through a review of statutes across the country, it complicates the traditional notion that statutes are unduly vague in their definition of disability, and as a result, either overor underemphasize 1