There are multiple interesting posts on The Volokh Conspiracy regarding this 9th Circuit Opinion regarding statutory rape laws and the mentally handicapped. Basically, it was a criminal case in which a man was charged with statutory rape for having sexual intercourse with a woman whose mental age was somewhere in the 5-8 range. He sought to have his conviction overturned by arguing, along with many other things, that the recent Supreme Court rulings declaring anti-sodomy laws unconsitutional created a 14th Amendment right to consensual sex that would outweigh the statutory rape statute OR. REV. STAT. § 163.375, which read:



(1) A person who has sexual intercourse with

another person commits the crime of rape in the first

degree if:

. . .

(d) The victim is incapable of consent by reason

of mental defect, mental incapacitation or physical

helplessness.



OR. REV. STAT. § 163.305(3) indicated that “Mentally defective” means that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person.



The majority found the argument unpersuasive:



"Anderson argued that the recent Supreme Court holding in Lawrence v. Texas, 123 S. Ct. 2472 (2003), established a new constitutional right that compelled us to remand this case to the district court for reconsideration of the statutory vagueness claim. We address Lawrence only so far as to state that it has no impact on Anderson’s vague-ness claim. The Lawrence Court held that the Due Process Clause of the Fourteenth Amendment protects the right of two individuals to engage in fully and mutually consensual private sexual conduct. The holding does not affect a state’s legiti-mate interest and indeed, duty, to interpose when consent is in doubt."



The dissent disagreed:



The first reason why section 163.305(3), as written and as read to the jury at Anderson’s trial, could implicate constitutionally protected conduct is that it is susceptible to a construction that JH will never be able legally to consent to sex. The jury could have easily interpreted the phrase “incapable of appraising the nature of the conduct” to mean that either JH is always capable of consenting to sex or she never is. This binary view of mentally retarded individuals generally and JH in particular might well be an unconstitutional imposition on their sexual liberty. Despite the lack of a consistent clinical definition of what constitutes a “valid” consent, see infra note 10, there is clear consensus among experts in the field of men-tal retardation that mentally retarded individuals experience sexual desire and can meaningfully consent to sex in some situa-tions. 9 The prosecution expert witnesses conceded as much at trial. Moreover, JH has evidently engaged in voluntary sexual intercourse on a number of occasions in a manner that offended neither her mother nor the state. Given the general clinical belief that mentally retarded individuals desire and can “ethically” consent to sex, as well as JH’s own desire and demonstrated capacity to understand and appreciate sexual contact, it could well be unconstitutional for Oregon law to hold that JH can never legally consent to sex. Section 163.305(3) is readily susceptible to this type of potentially unconstitutional application. . .



I am convinced that section 163.305(3) implicates constitutionally protected conduct for a different reason. Specifically, the statutory provision alternatively invites those applying the law to invoke their own sexual mores and override JH’s sexual choice when deciding whether JH is capable of consent in a particular instance. During the pre-trial hearing, the prosecutor first interpreted the statutory scheme in precisely this contextual manner. The prosecution’s initial attempt at interpreting the statute was to propose a rule that JH’s mother could provide consent on JH’s behalf. Realizing the problem with that interpretation, the prosecution suggested that JH’s consent would be legally valid in the con-text of a “boyfriend-girlfriend” relationship. Finally, the pros-ecution arrived at the following reading of the statute: “I guess, what we would argue is that she is incapable of consent under all circumstances. It’s just that in some circumstances we would not charge a crime and those were circumstances that were condoned by her mother, condoned by her in the sense of relationship and that gave her an individual right to life — life like the rest of us lead.” . . . That the state may not burden a particular sexual choice out of distaste or disagreement is the central holding of Lawrence. 123 S. Ct. at 2478 (“When sexuality finds overt expression in intimate conduct with another person . . . [t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”). Taking Anderson’s version of the facts as true (the jury having rejected the only other version of the facts available), JH’s sexual choice was clearly demon-strated and uncoerced.



The extensive postings on the Volokh Conspiracy here, here,and here, and Clayton Cramer's post here make for a fascinating debate on the issue.



I wonder if the psych experts would agree there is a mental "age" of consent as well as a physical one - in other words, is a person who is not physically incapable of having adult intercourse always presumed mentally capable of consenting to it under the correct circumstances? Or is there a certain mental age beyond which society should prohibit sex altogether, just as we do with children? Although it could be argued that the person being protected by the law have the constitutional right to override it by indicating consent in some affirmative manner, would society have to allow that? We don't let adults put pressure on a five-year-old child to "consent" to sex, should we allow the same pressures on a mentally five-year-old adult? Of course, because of the physical maturity of the subject, society would still have to allow a defense based on affirmative proof that accused was (reasonably??) unaware of the subject's incapability to consent. All in all, a very interesting issue.



UPDATE:

The American Bar Association Journal also has an article on the ramifications of the Lawrence case. Not as comprehensive as the Volokh stuff, though.