In People v. Dean (3d Dept. 2/18/2010), the defendant was convicted of Rape 2º and Endangering the Welfare of a Mentally Incompetent Person. The victim's ability to consent to sexual intercourse was at issue in this case. Both the defendant and the victim had mental impairments. The defendant's IQ was 64, and the victim's was 52. The court indicated that while the law recognizes mental limitations that may preclude one's ability to legally consent to sex, establishing such legal incapacity is a high burden. Just because someone is mentally disabled does not mean that the individual is automatically unable to consent to sexual intercourse; moreover, proof of such incapacity must stem from evidence other than the mental retardation itself.
One factor a court must consider is the nature of the sexual encounter. If the encounter is exploitive of the victim, the burden of proof may be satisfied. Here, none of the evidence suggested that the defendant exploited the victim. For example, the record revealed that the victim obtained a driver's license and had a previous romantic relationship, which indicated her intelligence and ability to make independent decisions. In addition, photographs and testimony depicted the relationship between the defendant and victim as one of mutual affection. Moreover, the victim was given autonomy by her medical care providers regarding her reproductive rights. They allowed her to choose to carry her pregnancy to full term when she conceived a child fathered by the defendant; they also acquiesced in her later decision to use birth control.
For all of these reasons, the Third Department was unpersuaded that the People sufficiently met the high burden of establishing the victim's mental incapacity to consent to sex with the defendant. The judgment was therefore reversed (on the facts), and the indictment was dismissed. (DAL/LC)
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