Last Updated on August 21, 2024
Under California law, rape doesn’t require the victim to say “no.” Instead, sexual assault occurs whenever a person has sex with someone who does not consent. In some cases, like those involving statutory rape, the other party may not even be able to legally agree to have sexual intercourse—even if they say “yes.” This policy makes sense when someone is too drunk to legally consent to have sex, but things become more complex when one party suffers from a mental, physical, or developmental disability. While the government must create laws to protect disabled individuals from rape, they also must not infringe on these individuals when they voluntarily wish to enter a sexual relationship. If you are concerned about the intricacies of disabilities, consent, and sexual assault under California law, contact a criminal attorney before engaging in any intimate activities.
Can Someone be Too Physically Handicapped to Consent to Sex?
Yes. If someone is in a coma, they cannot express themselves and, therefore, cannot agree to have sex. As long as someone can communicate, even through a translator, though, they can agree to intercourse. If someone cannot speak, write, or use sign language though, it may be difficult to argue that they willingly consented to a sexual act.
One problematic area is that people are always permitted to revoke consent during a sexual encounter, so if someone has a disability that prevents them from speaking, it is advisable to agree on an easily identifiable gesture they can use during sex to indicate they wish to stop.
Can a Mentally Disabled Person Give Consent?
The complications involved with obtaining legally-acceptable consent from a person with a severe physical disability are minor compared to those you may face when it comes to someone who is mentally incapacitated. Even specialists can’t agree when it comes to the exact level of mental competence someone must demonstrate before they are considered able to consent to sex. There is no single IQ range or developmental age that solidly ensures someone understands the true nature and possible complications of sexual intercourse. And, unfortunately, just because you think a mentally incapacitated person is capable of providing consent doesn’t mean their family, therapist, caretaker, or case worker will agree.
Generally speaking, if a person is considered competent enough to live independently, you’re probably ok from a legal perspective. Otherwise, while it may be awkward, you may want to engage that person’s caretaker, family, or therapist to ensure they agree that your potential partner can and has decided to have sexual relations with you. It’s better to feel awkward than to go to prison.
Fighting the Charges
If you are charged with raping a physically or mentally incapacitated person, your attorney may be able to bring expert witnesses to testify that the person in question was, indeed, qualified to give consent and that it is unfair to deny such a person any chance at a healthy sex life simply because they are handicapped.
Remember that you can fight these charges, but anything you say to the police could be used against you later. If you have been accused of a sex crime, do not speak to the police until you have a lawyer present. Please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.
