"Raping" the Retarded.

As NYC pointed out, there commonly exist provisions that prohibit sexual interactions with the mentally disabled even if overt objections do not exist to this activity, such as the New York law:

Pursuant to New York law, an element of every sex offense is that the sexual act was committed without consent of the victim. Penal Law §130.05(1). Lack of consent results from, inter alia, incapacity to consent. Penal Law §130.02(2) (b). A person is deemed incapable of consent if he/she is "mentally disabled" as that term is used in Penal Law §130.05(3) (b).

Abusive or coercive sexual activity forced either physically, or through psychological means, upon a mentally disabled person, is a crime. Even if the person does not overtly object to such activity, the law protects persons who are legally recognized as being unable to consent.

The capacity to consent to sexual intercourse requires the ability to substantially understand what one is doing. 32 N.Y. Jur2d, Criminal §3913. As noted above, a mentally disabled person may be capable under the law of providing consent for some personal choices, but not others, e.g., purchasing personal items, but not for sexual intercourse. In order to judge whether the conduct was criminal, an assessment must be made whether the person understands the nature of the sexual act and, with such comprehension, consents to such an act. People v Cratsley, 86 N.Y.2d 476 (1995), People v Easley, 42 N.Y.2d 50 (1977) Cf People v. Onofre, 51 N.Y.2d 476 (Ct. App., 1980) (N.Y. Court of Appeals struck down Penal Law §130.38, which criminalized consensual sodomy, as violative of the constitutional right to privacy.)

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The alleged reason for the necessity of such a prohibition is the inability of intellectually disabled persons to offer informed consent to sexual interactions and such. However, as should be apparent, the informed consent of the intellectually disabled is not considered a necessary facet of many of their daily interactions. If sexual activity sans informed consent is sexual assault, why is transportation sans informed consent not kidnapping or containment within a building sans informed consent not unlawful imprisonment? The rational response would presumably be that those latter actions may be necessary to sustain the welfare of an intellectually disabled individual, while a sexual interaction is not likely to contribute to that. However, this has shifted the focus from the inviolable standard of "informed consent" to a welfarist standard instead. In light of that, why not decriminalize those sexual interactions with the mentally disabled which will generally not incur harmful consequences, which would likely include rudimentarily consensual interactions to which there are not "overt objections"?

So? Hell, I think that many of us have retrospectively realized that many of our partners were retarded anyway. :rofl :shrug:

I dunno. That's New York, I guess.
Here mentally disabled people are allowed to have sex, get married, even raise kids.
Growing up, I knew some kids (of normal intelligence) who had one or more mentally retarded parents.
The state sort of keeps an eye on families like this, especially since they're nearly always on various forms of assistance.

It seems kind of screwed up of new York to legally prohibit mentally handicapped adults from having sex with the partners of their choosing.
Sounds like discrimination to me.

Well, the prohibition seems to specifically apply to those so severely mentally disabled that it can be definitively concluded that they cannot offer informed consent to those interactions.

Agnapostate said:

Well, the prohibition seems to specifically apply to those so severely mentally disabled that it can be definitively concluded that they cannot offer informed consent to those interactions.

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Well, yeah... if they're so profoundly disabled that they require institutional care, then one had probably best not be diddling them, whether they claim to want it or not.
Yet every two or three years, we have a female patient turn up pregnant over at the State MHMR. Sometimes it turns out to be the result of rape by one of the attendants, sometimes by a male patient. It's sad.

But the moderately mentally retarded are no longer institutionalized.
Rather, they are placed in section 8 housing, two or three to an apartment, and visited at intervals by social workers, and provided with groceries and bus passes, and in some cases assisted in getting jobs.

I guess it's all a matter of degree.

Agnapostate said:

The alleged reason for the necessity of such a prohibition is the inability of intellectually disabled persons to offer informed consent to sexual interactions and such. However, as should be apparent, the informed consent of the intellectually disabled is not considered a necessary facet of many of their daily interactions. If sexual activity sans informed consent is sexual assault, why is transportation sans informed consent not kidnapping or containment within a building sans informed consent not unlawful imprisonment?

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Do you have the text for the laws pertaining to kidnapping or unlawful imprisonment? My guess is that rather than outlawing transportation without consent, they outlaw transportation against a person's will. I could be wrong, but I believe the requirement for somebody to specifically consent is unique to sexual assault laws and medical procedures and other such things.

Kernel Sanders said:

Do you have the text for the laws pertaining to kidnapping or unlawful imprisonment? My guess is that rather than outlawing transportation without consent, they outlaw transportation against a person's will. I could be wrong, but I believe the requirement for somebody to specifically consent is unique to sexual assault laws and medical procedures and other such things.

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That's the point. I'm questioning the reason for the inconsistency, and have included that it's based in a welfarist perspective.

The difference is that, for riding a bus or staying in a building, expressly-informed consent is not required.

Double standard? Maybe.
Morally wrong? Possibly.
Perfectly legal? Yes.

That's a factual statement, not an ethical claim.

Agnapostate said:

Well, the prohibition seems to specifically apply to those so severely mentally disabled that it can be definitively concluded that they cannot offer informed consent to those interactions.

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When does good sex ever have to do with informed consent?

It is an animal act, you both go animal, no contracts need be read; but who you hunt says everything about who you are.

Agnapostate said:

As NYC pointed out, there commonly exist provisions that prohibit sexual interactions with the mentally disabled even if overt objections do not exist to this activity, such as the New York law:



The alleged reason for the necessity of such a prohibition is the inability of intellectually disabled persons to offer informed consent to sexual interactions and such. However, as should be apparent, the informed consent of the intellectually disabled is not considered a necessary facet of many of their daily interactions. If sexual activity sans informed consent is sexual assault, why is transportation sans informed consent not kidnapping or containment within a building sans informed consent not unlawful imprisonment? The rational response would presumably be that those latter actions may be necessary to sustain the welfare of an intellectually disabled individual, while a sexual interaction is not likely to contribute to that. However, this has shifted the focus from the inviolable standard of "informed consent" to a welfarist standard instead. In light of that, why not decriminalize those sexual interactions with the mentally disabled which will generally not incur harmful consequences, which would likely include rudimentarily consensual interactions to which there are not "overt objections"?

So? Hell, I think that many of us have retrospectively realized that many of our partners were retarded anyway. :rofl :shrug:

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Have you ever met any mentally-impaired people? There are many levels at which a person is considered mentally-impaired.

Some mentally-impaired people may not know that they are having sex because they have no concept of what sex is. There was an episode of Law and Order SVU that dealt with this. Season 3, "Competence". The girl had Down's Syndrome and was pregnant. She had sex but didn't even realize what it was. She called it "exercise" at one point during the episode because that is what the guy told her they were doing. They found several other girls with Down's Syndrome who this guy had worked with who had children. He was using their ignorance of sex against them. They didn't even know they should say no.

For the mentally handicapped, there are some things that may be harder for them to understand than others. Sex and relationships in general tend to be some main ones. This is why its important to make sure that mentally handicapped people are taught about sex. Unfortunately, their caregivers, especially when the caregivers are family and/or older, tend to be more inclined to shelter them from any talk of sex. I noticed this with my uncle. He wouldn't watch anything that had an above PG rating. And my grandparents slept in separate rooms for at least as long as I can remember. I don't even think that he knew what sex was or how babies were made.

That's the basis for my point. I'm asking why "informed consent" is considered a necessary criterion of such interactions with the mentally disabled when it's not considered a necessary criterion of other interactions with them.

I think you may be missing the point of what "informed consent" means. It means that the person must be aware of what they are actually consenting to for the act to be legal. I don't know if you actually watched that episode I mentioned or not, but many things were brought up about this. I didn't personally agree with their assessment that because the prosecutor testified that the girl was cognizant enough to be able to make her own decisions that it could be argued that it wasn't rape. Only a stupid judge would actually believe that with how the girl was. But I guess there are some stupid judges out there. A mentally impaired person can be able to make their own choices for much of their day-to-day life and still not understand what some things like sex are. You can tell someone that sex is wrong, but if they aren't told what sex is, than they don't know exactly what the act is that they aren't supposed to be doing. Like the girl in the episode. She had been told by her mother (when I watched the ep., I found out I was wrong, it wasn't her grandmother) that sex was bad, but she hadn't been informed about what sex actually was. So when her boss told her that they were "exercising", she didn't know she was having sex. She simply believed that she was exercising, something that in other circumstances, would have been an acceptable activity for her to participate in.

Now as for the other acts, how could you apply this? I just don't see how not being informed about what the person is doing when they get in a car or are taken to a specific place has to do with what they understand or not about sex.

Maybe NY can't stomach the mental image of a retard person having sex, so they pass a law on it. Who knows the motivation behind a lot of what happens in NY.

roguenuke said:

I think you may be missing the point of what "informed consent" means.

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No.

roguenuke said:

Now as for the other acts, how could you apply this? I just don't see how not being informed about what the person is doing when they get in a car or are taken to a specific place has to do with what they understand or not about sex.

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It's based on identification of the inconsistent application of the standard of informed consent, where a sexual interaction sans informed consent is "rape" while placement inside a secured home or facility sans informed consent is not "false imprisonment" and transportation sans informed consent is not "kidnapping."