Well, in the Commonwealth of Virginia, you are not legally incompetent unless you are a legal minor, or have been adjudicated to be incompetent. So, mental illness, or mental retardation must have been legally noted by a court.
However.
If you are receiving services under any program run by, or supported by the Commonwealth or the United States, any employee of that service provider, and any employee of the Commonwealth is prohibited from having any sexual contact with you whatsoever. This includes sexual activities not at the place of services, or at the place of employment.
Uncoerced sexual acts between mentally retarded people are not criminal acts. They are damned near impossible though. Long ago the view was that normal emotional and sexual growth was only possible if such behavior was allowed, and even passively facilitated. Times change, though.
Mentally ill people are somewhat more difficult to discourage. Folks in the nut house have sex rather more often than folks outside of it. Among the things they might be doing, it rates several rungs down from the top on the list of stuff to keep people from doing.
One point, though. The absence of legal ability to consent is a matter of fact, and foreknowledge of that fact is not necessary for the act to be rape. “She looked old enough to me!” isn’t a legal defense.
This is the website of the people who published the book where I found what I quoted, it was printed in 2002, and after looking at it again, it does say what I put up. However, it does not actually quote the laws and is written for the teenagers, not the law students.
Nitpick, along with the standard disclaimer: this varies widely by jurisdiction.
In particular, in a number of states the wording of the “rape” statute insists upon penetration of the rapee by the rapist, thus this situation would at most count as sexual assault.
You’re really overanalyzing it, cooperwindow. The law is not one great big game of “gotcha!”, lying in ambush to haul us off to jail merely for casually living our lives.
As doreen and Triskadecamus have mentioned, there are specific parameters (varying per jurisdiction) that the Court, or even the investigative agency, must follow in order to even proceed with a case, and specific parameters based on written law and precedent for when it is that a particular sexual act constitutes (N)th degree sexual battery, or whatever it is that the term is used. Burden-of-proof still applies, the state has to show that those conditions were met.
True, but: (1) I did say intercourse, and (2) I’ll assume we’re not discussing Spain or a random Third World country that happens not to have enacted an age of consent. With that, my statement is essentially true: an adult woman who copulates with a 13-year-old boy is chargeable with statutory rape essentially in all jurisdictions. In point of fact, many would in practice place the charge at a lesser included offense, such as “sexual assault,” “carnal abuse,” or “sexual misconduct” – but the principle is there: the laws are (everywhere I know of) gender-neutral on this.
And on rereading your post, I see I missed your point: yes, in a jurisdiction which in fact insists on penetration of rapee by rapist, you are correct. My apologies. As a casual question related to this, do you have any source that would indicate where this is in fact the case? I’m curious as to the relative prevalence of that sort of statute.
Good Lord. It’s not legally binding at all, and a near guarantee you that if you present this to your potential f-buddy, s/he will not do any of the things stipulated in the contract.
I’ll admit I haven’t looked up this particular statute to see if it’s been changed in a while, but in Maryland in the mid-to-late-90s the wording was such that the rapist had to penetrate the rapee – a technicality I specifically pointed out before. It’s unclear (though I’ll give the benefit of the doubt) whether a woman could be charged for wielding an instrument, but in intercourse she is definitely not the penetrator.
Checking the code online (it’s in the 3-300s), that section has been updated since we harangued about this in my high school social studies class. However, a close reading shows that nonconsensual (forcible or statutory) sex is only “rape” if it’s vaginal intercourse. So to everyone on frat row at UMD, after dragging the drugged girl upstairs, make sure to do her in the butt.
Okay, let me rephrase. If a 43 year old man with Alzheimer’s disease or mental retardation or whatever has sex with a 12 year old girl, was there 0, 1, or 2 rapes occuring?
Y’know, I really shouldn’t, but hell, somebody’s gonna, might as well…
copperwindow, what’s with the reiterative hypotheticals? (which this time around it seems it took you a month to come up with the latest one!) Is there a point you wish to make?
How can you say what the chances are? What evidence do you have to support whether there is high, little, or no chance? I’m trying to understand how the law defines rape in particular situation, regardless of what the chance of it happening is. Any answers?
The answers have been given, copperwindow, as to what the Law is. What the law does not do is nail down absolutely every imaginable convergence of circumstances; that’s why we name thinking humans to the bench, to handle the nuances.
In your latest hypothetical scenario, I’l simplify it further:* “What if two people, neither of whom under the law is competent to give valid consent or apprise the nature of their conduct, engage in sex.” *
IANAL but it seems to me in such a situation the case would be brought forward, and the parties examined according to established rules and protocols, and** if truly both parties are legally completely noncompetent ** then it’s plausible that the court would not proceed to a criminal conviction, but instead an action would be taken for both their “protection” whereby it’s ordered a social services or mental health “intervention”. Which is not the same as “nothing happened”…