University of Illinois Law Review
In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mental retardation. It next demonstrates how old stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. As a result, courts are hurting the very people they are supposed to protect and failing to respect those people's dignity. To remedy this incongruity, the article proposes that courts making consent determinations apply a contextual approach, which incorporates modern knowledge about the adaptive capabilities of mentally retarded individuals as well as the situational context of the sexual conduct. Finally, the article discusses the regulation of sexual relations in the context of institutions and residential homes for mentally retarded individuals. The article concludes that most mentally retarded individuals have the capacity to consent to sexual relations, they have the right to do so, and unnecessarily broad and moralistic restrictions infringe upon that right.
Deborah W. Denno,
Sexuality, Rape, and Mental Retardation, 1997 U. Ill. L. Rev. 315
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/121