When Consent Can’t Be Given: What To Know About Sex & Disability Laws

In early February, Rutgers Professor Anna Stubblefield was sentenced to 12 years in prison for two counts of aggravated sexual assault. Stubblefield was convicted of assaulting a man named D.J. who has cerebral palsy, according to The New York Times. Though the philosophy professor claimed they “fell in love”  through a controversial method of speaking called “facilitated communication,” her argument depended on the assumption that D.J. was intellectually capable of giving consent — which  a New Jersey jury and judge rejected.

Though the Stubblefield case may feel like an anomaly, it’s anything but. In fact, the National Center on Domestic and Sexual Violence reports that as many as 83 percent of developmentally disabled females and 32 percent of developmentally disabled males are the victims of sexual assault.

But crafting laws that fully protect this vulnerable group can be hard to come by. While the main goal is to protect them from being taken advantage of, how is their autonomy factored in? “If we say that it’s a crime to have sex with the mentally ill or disabled, because they lack the legal capacity to consent, that consigns them to a sexless and often therefore emotionally diminished life (or at least limits their pool of prospective sexual partners to those who are willing to commit serious felonies),”Washington Post article points out. And it’s a difficult balancing act that officials are struggling with.

On occasion, this balance has been outright ignored. In July, Armstrong State University caught flak for some awkward wording in their “yes means yes” policy which essentially determined that disabled persons — regardless of intellectual capability — cannot give consent. “In addition, persons under the age of 16 and persons who have a physical and/or mental impairment are unable to give consent,” the policy read.

Does that mean someone who has sex with someone who requires the use of a wheelchair is committing rape? Though the university told the Washington Examiner that it was an oversight and they added the phrase “that inhibit” to the policy, it’s a testament to just how easy it is to miss the mark and create a dangerous precedent.

And if this concept wasn’t murky enough,age of consent” is another complicated aspect when it comes to sexual assault of disabled persons. In some states, statutory rape applies even when a person may be physically an adult but mentally under the age of consent. Meaning, someone who is 40 years old but may have the mentality of a 12-year-old wouldn’t be able to consent to sex.

However, many states are diligently defining consent for people with mental disabilities (and to an extent, those with physical handicaps as well), which is very important to this discussion. One state that stands out is New York, which defines “lack of consent” through several categories, two of which include:

Physically helpless: A “person who physically unable to indicate a lack of consent.” Meaning “the victim […] has a physical disability that makes one unable to physically or verbally communicate lack of consent.”

Mentally disabled: “A person suffers from a mental illness or a condition that renders them incapable of understanding the nature of the conduct. (Lack of consent in this situation requires corroboration of the sexual act and the defendant’s connection to that act.)”

South Carolina uses similar language as New York’s sexual assault laws (Penal Law 130).  An offender can face up to 10 years for sexual assault of someone deemed to be “mentally defective or incapacitated or physically helpless [who] have a mental or physical disability.”

Another state that sticks out is California. Though the state’s rape law (Penal Code 261) says the crime occurs when someone has intercourse with “a person [who] is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act,” there is no concrete definition outlining competence — which leaves it up to the interpretation of a judge or jury, according to Shouse California Law Group.

All in all, it’s a complicated subject, but one that’s gaining attention in the media as issues of consent become more commonplace.

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