Under California law, rape doesn’t only occur when a person has sex with someone who said “no,” it actually occurs when 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 consent -even if he or she says “yes.” That’s where the concept of consensual sex with severely mentally or physically disabled people can enter a legal gray area. If you are concerned about the intricacies of disabilities and rape law, and whether or not a person would legally be able to consent to have sex, you may want to contact a lawyer experienced with rape and consent law before you engage in any sexual activities.
Physical Disabilities and Rape
When it comes to physical disabilities and rape, it can be very clear when some people are unable to consent -for example, no one in a coma is able to agree to engage in sexual acts. On the other hand, if a person cannot speak or perform sign language, it could be problematic to prove that he or she agreed to participate in a sexual activity. Fortunately, with most physical disabilities, the person has some way to communicate and if you involve that person’s translator (even if that may feel awkward), you should be able to ensure that there is a record that he or she did consent before hand.
Of course, a person may also revoke consent at any time during a sexual encounter, so you, the translator and the disabled man or woman in question may work to create an easily identifiable gesture that the other party can perform to stop the sexual acts if he or she feels uncomfortable at any time.
Mental Disabilities and Rape
Overall, the complications involved with obtaining clear consent from a person with a severe physical disability are minor compared to those you may face obtaining consent with a person who has a mental disability. That’s because the answer to “at what point does a person become too mentally incompetent to consent to sex?” is extremely complex and even specialists cannot come to a solid conclusion when it comes to mental disabilities and rape.
There is no single IQ range or developmental age that would define a person as competent enough to consent. And just because you think the other person is capable of consenting and he or she has offered consent doesn’t mean that person’s family, therapist, care taker or case workers will agree that your behavior is consensual.
Generally speaking, if a person is competent enough to live on his or her own, you’re probably going to be ok from a legal perspective. Otherwise, while it may be awkward, you may want to involve that person’s care takers, family or other persons who spend a lot of time with the person to ensure they agree that your potential partner can and has agreed to sexual relations with you. It’s better to feel awkward than to go to prison.
Enhanced Penalties in Cases Involving Disabilities and Rape
If you are charged with raping someone with certain disabilities, you could even face enhanced sentencing, so it is particularly important you are absolutely sure you have sufficient consent before initiating sex with a person who has these types of severe disabilities. If you are charged with raping a disabled person though, your sex crimes 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 he or she is handicapped.
Remember that you can fight these charges, but that anything you say to police could be used against you later, so if you have been accused of any type of sex crime, do not speak to police until you have a lawyer present. Please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.
