# Is porn of the mentally handicapped illegal?
**URL:** https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633
**Category:** Factual Questions
**Created:** [November 23, 2013, 7:22pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633 "2013-11-23T19:22:48Z")
**Posts on this page:** 20
**Page:** 2
### Author:  [@DevilMayhem666](https://boards.straightdope.com/u/DevilMayhem666)
#### Post date: [November 23, 2013, 9:45pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/21 "2013-11-23T21:45:04Z")
> [@Exapno\_Mapcase](#):
>
> Then it should be no problem for you to back it up.
It’s certainly illegal in my state(NJ) and from what I am heard many other areas due the fact that they can not fully comprehend what is going on(which is a pretty reason to make it illegal).
> [@](#):
>
> Lack of consent is the crucial component of sex crimes. Sexual conduct becomes criminal when sexual touch is not consented to, either because the offender forces another person to be sexual against his or her will, or because the other person is considered incapable of consenting or has a diminished capacity to consent. **States generally criminalize sex with** a minor under the age of fourteen or fifteen,\*\* a developmentally disabled person\*\*, someone who is mentally ill, or a person who is incapacitated – drugged, drunk or unconscious – or otherwise physically helpless. When sexual contact is with a developmentally disabled or mentally ill person, the issue of consent may be whether the person had the capacity to knowingly consent to sexual contact.
> **[Sexual Assault Laws and Penalties](https://www.criminaldefenselawyer.com/crime-penalties/federal/Sexual-Assault.htm)**
>
> The term sexual assault, in lay person terms, usually refers to an attack on a person that is sexual in nature. The legal definition of this term actually differs, h
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### Author:  [@armedmonkey](https://boards.straightdope.com/u/armedmonkey)
#### Post date: [November 23, 2013, 9:46pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/22 "2013-11-23T21:46:26Z")
> [@ZenBeam](#):
>
> I’m pretty sure that what you quoted _is_ what the OP is getting at.
Just sit back and let our OP clarify himself.
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [November 23, 2013, 9:47pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/23 "2013-11-23T21:47:40Z")
> [@DevilMayhem666](#):
>
> It’s certainly illegal in my state(NJ) and from what I am heard many other areas due the fact that they can not fully comprehend what is going on(which is a pretty reason to make it illegal).
>
> [Sexual Assault Laws and Penalties](http://www.criminaldefenselawyer.com/crime-penalties/federal/sexual-assault.htm)
Only a subset of mentally handicapped people have diminished capacity to consent. The issue isn’t the mental handicap or illness per se, it’s the resulting inability to consent that can result from the mental handicap.
So to rework your OP, “Is it illegal to make porn with a person who can’t consent?” I’d bet, yes.
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### Author:  [@ZenBeam](https://boards.straightdope.com/u/ZenBeam)
#### Post date: [November 23, 2013, 9:48pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/24 "2013-11-23T21:48:33Z")
nm.
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### Author:  [@DevilMayhem666](https://boards.straightdope.com/u/DevilMayhem666)
#### Post date: [November 23, 2013, 10:40pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/25 "2013-11-23T22:40:29Z")
> [@drachillix](#):
>
> Maybe you should rephrase the question…like is it possible for the mentally handicapped to give meaningful consent for purposes of starring in a pornographic movie?
While by porn I speaking more in the context of sexting and such. Like with teenaged minors.
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### Author:  [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)
#### Post date: [November 23, 2013, 10:52pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/26 "2013-11-23T22:52:10Z")
> [@ZenBeam](#):
>
> For Tennessee:
>
> 39-13-503. Rape
> (a) **Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a
> victim accompanied by any of the following circumstances**:
> (1) Force or coercion is used to accomplish the act;
> (2) The sexual penetration is accomplished without the consent of the victim and the
> defendant knows or has reason to know at the time of the penetration that the victim did not
> consent;
> (3) _**The defendant knows or has reason to know that the victim is mentally defective,
> mentally incapacitated or physically helpless**_; or
> (4) The sexual penetration is accomplished by fraud.
> (b) Rape is a Class B felony.
>
> ETA: First link on a Google search for _tennessee code unlawful sexual contact_
Still, you have the initial clause that requires the sexual contact to first be unlawful, then second involve any of the listed circumstances. This seems to imply that sexually penetrating a person that one knows or has reason to know is mentally defective, mentally incapacitated or physically helpless is not _per se_ a violation of this statute, it’s only a violation if the sex would otherwise be _unlawful_ even if the alleged victim was mentally competent and physically able.
Is there a generic “unlawful sex” statute that defines a basic, unaggravated standard as to what kinds of sex are inherently unlawful and subject to aggravating penalties if it is done using force, without consent, against an incapacitated person, etc?
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### Author:  [@ZenBeam](https://boards.straightdope.com/u/ZenBeam)
#### Post date: [November 23, 2013, 11:03pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/27 "2013-11-23T23:03:27Z")
I already addressed that in post 17. “unlawful” is descriptive, not an additional requirement.
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### Author:  [@Bear\_Nenno](https://boards.straightdope.com/u/Bear_Nenno)
#### Post date: [November 23, 2013, 11:12pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/28 "2013-11-23T23:12:48Z")
> [@robert\_columbia](#):
>
> Still, you have the initial clause that requires the sexual contact to first be unlawful, then second involve any of the listed circumstances. This seems to imply that sexually penetrating a person that one knows or has reason to know is mentally defective, mentally incapacitated or physically helpless is not _per se_ a violation of this statute, it’s only a violation if the sex would otherwise be _unlawful_ even if the alleged victim was mentally competent and physically able.
>
> Is there a generic “unlawful sex” statute that defines a basic, unaggravated standard as to what kinds of sex are inherently unlawful and subject to aggravating penalties if it is done using force, without consent, against an incapacitated person, etc?
So you’re saying, then, that we are free to have _lawful_ sexual contact \*without the consent of the victim \*? As long as it’s not _unlawful_ sex without consent, we’re good. Right?
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### Author:  [@armedmonkey](https://boards.straightdope.com/u/armedmonkey)
#### Post date: [November 23, 2013, 11:20pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/29 "2013-11-23T23:20:59Z")
> [@DevilMayhem666](#):
>
> While by porn I speaking more in the context of sexting and such. Like with teenaged minors.
Again… what?
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### Author:  [@DevilMayhem666](https://boards.straightdope.com/u/DevilMayhem666)
#### Post date: [November 24, 2013, 12:33am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/30 "2013-11-24T00:33:12Z")
> [@armedmonkey](#):
>
> Again… what?
> **[Sexting](https://en.wikipedia.org/wiki/Sexting)**
>
> Sexting is sending, receiving, or forwarding sexually explicit messages, photographs, or videos, primarily between mobile phones. It may also include the use of a computer or any digital device. The term was first popularized early in the 21st century and is a portmanteau of sex and texting, where the latter is meant in the wide sense of sending a text possibly with images. Sexting is not an isolated phenomenon but one of many different types of sexual interaction in digital contexts tha The f...
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### Author:  [@Ferret\_Herder](https://boards.straightdope.com/u/Ferret_Herder)
#### Post date: [November 24, 2013, 12:38am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/31 "2013-11-24T00:38:39Z")
> [@DevilMayhem666](#):
>
> While by porn I speaking more in the context of sexting and such. Like with teenaged minors.
…Need answer fast?
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### Author:  [@armedmonkey](https://boards.straightdope.com/u/armedmonkey)
#### Post date: [November 24, 2013, 12:48am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/32 "2013-11-24T00:48:37Z")
> [@DevilMayhem666](#):
>
> [Sexting - Wikipedia](http://en.wikipedia.org/wiki/Sexting)
I know what “sexting” is, it’s just…
Nevermind, I don’t think think I’ll come back to this thread.
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### Author:  [@Senegoid](https://boards.straightdope.com/u/Senegoid)
#### Post date: [November 24, 2013, 1:06am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/33 "2013-11-24T01:06:50Z")
I think the issue is that _consent_ is necessary, and mentally handicapped people (at least for some values of “mentally handicapped”) are presumed to be incapable of consenting.
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [November 24, 2013, 1:46am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/34 "2013-11-24T01:46:53Z")
> [@DevilMayhem666](#):
>
> [Sexting - Wikipedia](http://en.wikipedia.org/wiki/Sexting)
Perhaps if you actually fleshed out a fully formed OP (or more complete answers to questions) explaining what you’re talking about, defining terms and explaining the question throughly we wouldn’t have to play these back-and-forth games. You do have a certain responsibility to craft an OP and follow up answers that promote discussion.
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### Author:  [@The\_Man\_In\_Black](https://boards.straightdope.com/u/The_Man_In_Black)
#### Post date: [November 24, 2013, 2:01am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/35 "2013-11-24T02:01:33Z")
Are you asking if a mentally handicapped person can sext minors? Same law applies to every adult. I actually remember years ago hearing on the news that a 14 year old girl prostituted herself to a mentally handicapped adult. It was the adult that was charged, as it should be.
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### Author:  [@sailor](https://boards.straightdope.com/u/sailor)
#### Post date: [November 24, 2013, 2:02am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/36 "2013-11-24T02:02:04Z")
> [@DevilMayhem666](#):
>
> I’m surprised that people are surprised at what I said.
I’m surprised that you are surprised that people are surprised by what you said.
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### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [November 24, 2013, 2:06am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/37 "2013-11-24T02:06:42Z")
After reading the thread in GQ where a quadraplegic is complaining about not having been able to obtain sexual release for years and being constantly horny, this one.
Making intercourses with mentally challenged people illegal in all circumstances as it’s apparently the case in at least some places is yet another great idea. :rolleyes:
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### Author:  [@DevilMayhem666](https://boards.straightdope.com/u/DevilMayhem666)
#### Post date: [November 24, 2013, 3:28am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/38 "2013-11-24T03:28:24Z")
> [@The\_Man\_In\_Black](#):
>
> Are you asking if a mentally handicapped person can sext minors?
No, I’m asking if a mentally handicapped sexting is treated the same way as a minor sexting.
> [@](#):
>
> Same law applies to every adult. I actually remember years ago hearing on the news that a 14 year old girl prostituted herself to a mentally handicapped adult. It was the adult that was charged, as it should be.
As it should be? Even if the person’s mental age below the girl’s?
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [November 24, 2013, 3:42am UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/39 "2013-11-24T03:42:01Z")
> [@Senegoid](#):
>
> I think the issue is that _consent_ is necessary, and mentally handicapped people (at least for some values of “mentally handicapped”) are presumed to be incapable of consenting.
I agree with this. The TN law is certainly vague and overly broad, but one can see that the intent is to prohibit the exploitation of someone who is truly mentally retarded/ challenged such that he or she is almost childlike and unable to meaningfully consent to sex. The law certainly doesn’t, or shouldn’t, apply to an otherwise functional adult person who happens to be dimwitted. No need to conduct an IQ test before taking someone home from a bar.
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### Author:  [@Purplegwiazda](https://boards.straightdope.com/u/Purplegwiazda)
#### Post date: [November 24, 2013, 7:26pm UTC](https://boards.straightdope.com/t/is-porn-of-the-mentally-handicapped-illegal/674633/40 "2013-11-24T19:26:02Z")
> [@IvoryTowerDenizen](#):
>
> It’s illegal for mentally handicapped adults to have sex?
I didn’t think it was either if the mentally disabled adult was consenting to it…though guess it depends on your definition of mentally disabled, it being illegal to have sex with the mentally retarded I could understand.
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