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Is it "Rape" to have sex with a retarded person?

Posted by Neil Shouse | Jun 03, 2014 | 0 Comments

We all know it's rape to use physical force or threats to make someone submit to having intercourse. Most of us are also pretty well aware that having sex with an unconscious person -- such as someone who is passed-out drunk -- also constitutes rape under California law.

What is less known is the rule that having sex with an "incompetent" person can also get you charged with rape. In Penal Code 261, California rape law defines an "incompetent" as a situation where "a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act."

All of this goes back to the central definition of rape in Penal Code 261, which is non-consensual intercourse. Even if an incompetent person is an adult, and has sex willingly, and is conscious, the law may deem the person unable to give legitimate consent if she is retarded or mentally or developmentally disabled.

Unfortunately, the law doesn't give much further guidance in defining mental competence. If someone is accused of rape because the sexual partner was retarded or incompetent, the issue of the alleged victim's mental state becomes a question of fact for the jury. In other words, the jury must decide whether the person had the mental faculties to give meaningful consent. Expert witnesses would generally be called at trial to offer opinions on the matter.

One could certainly question the fairness and implications of this law. Does it mean that a mentally retarded adult should be denied the chance to have a sex life because anyone having intercourse with him or her could potentially be charged with rape?

Refer to our related article, "What are the penalties for crimes against the disabled in California?"

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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