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. But what about having sex with an incompetent person?
1. Is it a crime in California to have sex with an incompetent person?
As a general rule under California criminal law, having sex with an “incompetent” person can get you charged with rape.
Under Penal Code 261, California’s law on rape, an “incompetent person” is someone incapable of giving legal consent because of a mental disorder or developmental or physical disability.1
Even if a person has sex with a willing retarded or mentally/developmentally disabled adult, the act is still rape because the person cannot give legitimate consent.
2. Does California law provide further guidance on “mental competence”?
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?”
