Is porn of the mentally handicapped illegal?

[bup]

As distasteful as this whole thing is, I think there’s a legitimate factual question in there.

If a person is mentally handicapped enough to* not be able to give consent to sex*, would porn featuring that person be illegal?

So, the act is illegal - is making a video/film of it illegal? Is owning a film of it? Is distributing it? Is looking at it?

I’d guess ‘yes’ to all those, but I acknowledge it’s a guess and nothing more.

[WhyNot]

@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.

It may be “presumed” by most people, but I do not believe it is so presumed by doctors and judges. This is one of those areas that makes lawyers rich - arguing in court over the precise definition of “mentally handicapped,” and how it relates to ability to consent to sex. There are certainly people with developmental delays and with mental illness who are legally able to consent to medical treatment, sign contracts, own property and live independently. I’m think you’ll have a hard time convincing a jury that someone who pays rent and files taxes cannot meaningfully consent to sex.

@DevilMayhem666

Even if the person’s mental age below the girl’s?

“Mental age” is not a meaningful phrase is medicine. Sometimes doctors and therapists will use it as a rough shorthand to communicate the severity of someone’s impairment, but a 25 year old person with a developmental disability doesn’t have the mental age of a 12 year old, they have the mental age of a 25 year old with a developmental disability. There will be some ways in which they think, reason or behave as a younger person, but others in which they are closer to their age mates. They may not be able to read, but may be very concerned with forming partner bonds and forming loving families. When they’re 40, they may still not be able to read, but may be interested in passing their knowledge on to the younger generation. The psychosocial development of people with mental deficits is often not very changed from “normal” at all - it’s just complicated by difficulties learning, processing information and sometimes interacting with other people in a culturally appropriate way.

And yes, just like we talked about in that other thread, that seniors don’t lose the desire for sex because they get old, people don’t lose the desire for sex and intimacy because they have mental handicaps. And…

@IvoryTowerDenizen

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 no, I don’t think anyone’s proven that having sex with a person with a mental handicap is illegal, or if it is on paper, that it’s treated as such in real life. Certainly there are websites with dating and sex and marriage and parenting advice for people with developmental disabilities. Here’s one: http://www.srcp.org/for_some_parents/developmental_disabilities/the_specifics/marriageDD.html

Is it legal for a person with a developmental disability to get married? You won’t find the answer in our Constitution or in the Americans with Disabilities Act. That’s because matters of marriage are handled on the state level, and different states address marriage laws differently. As a general rule, though, people with developmental disabilities have the same right to be married as anyone else. That right, however, can be taken away if a court determines that a person is incapable of entering into a marriage contract.

Is it legal for a person with a developmental disability to have children? Yes, but states have laws that can limit the parental rights of people with developmental disabilities. In thirty-two states, a parent’s developmental disability can be one of the grounds for termination of parental rights. Although recent research has shown that parents with disabilities are not more likely to maltreat their children than parents without disabilities, studies have found very high rates of termination of the rights of parents with disabilities.

Both the Americans with Disabilities Act and the Rehabilitation Act prohibit state and local governments from discriminating against people with disabilities in their programs and services. However, one area that these anti-discrimination laws do not cover is child custody and child protection proceedings, and many parents with disabilities still face discrimination in these arenas.

To find out more about the laws on marriage and parental rights in your state, speak with someone at a local disability rights organization. They should also be able to tell you how marriage can affect an individual’s social security status.

I think if you as a lawyer have a client who has been found competent to enter into contracts and has not been found incompetent to consent to sex, you’re going to have a fairly difficult time proving that they were incompetent to enter a contract to have sex in front of a camera.

On the other hand, if your client has someone acting as his power of attorney for healthcare because he’s been found incompetent to give medical consents, his mom has the lease under her name and he hasn’t been allowed to get a driver’s license because his doctor thinks it would be unsafe for him to drive due to a lack of judgement and personal insight, you’ll have a lot better chance of convincing a judge that both enticing him into sex and filming it were scummy, rapey and illegal things to do.

[Mister_Rik]

@sailor

I’m surprised that you are surprised that people are surprised by what you said.

I agree with Sailor Olson!

[md2000]

Idon’t understand the back and forth here? The OP was poorly worded, but the obvious question asked (implied) was “if they can’t consent to sex, what about porn?”. As others have pointed out, the law forbids exploiting the handicapped, not forbids the handicapped.

@The_Man_In_Black

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.

Challenged or not, he’s breaking the law. The only question is, is he competent to stand trial?

Of course you notice none of the laws quoted had “Romeo and Juliet as Dumb and Dumber” exemption? Very few laws are written to cover every exemption. My Grade 3 teacher made this point once, when the class was talking about emergencies and the law “…but don’t ask me - what if the guy has no arms or legs, how does he call the police?” They don’t write 3,000 page laws to cover every possible scenario (unless it’s Obamacare?). The extremes are at the discretion of the police and the DA.

So a guy who’s a little slow, but still functional, better already know you don’t mess with underage girls. Whoever gives him “the talk” has to be more explicit and blunt than with a normal 12 year old. The “mental age of 12” has one significant exemption, the man (or woman) has the body and urges of a 25-year-old; they just have the mental restraint of a 12-year-old and need to be better schooled in yes-no.

(I recall a local McDonalds had a Downs guy helping out, doing some cleaner work. They had to get him out when he started hugging the girls working there. At first they were too polite to tell him no, but eventually it became too frequent and creepy.)

For the OP - Obviously, whoever made porn videos, the partner who is not retarded would simply be seriously incriminating themselves if they do it on camera. The camera crew and producer, etc., would be conspiring to commit the crime. If it involved two mentally handicapped, then presumably the one arranging it and filming it would be an accessory to a crime, even if the participants could not be charged.

To answer the question about sexting - there are several issues. Like the case TMiB mentions, is the person understanding what they are doing? Would the DA understand the person is challenged? Considering they have charged, convicted, and given the death sentence to underage children and the mentally challenged, don’t expect the DA to show a mental age of over 12 either. Ultimately, I assume there would be the judge’s evaluation of the defendant and possibly a court-ordered psychiatric evaluation to determine if they are competent to stand trial. (which goes back to the other posts - not everyone with a low IQ is incapable of functioning as an adult) I can’t think of any laws off hand against luring a mentally handicapped person into sexting, but if there is any physical contact during this, a creative DA might construe it as sexual assault of some sort.