Consent and mental incapacity

[Oleg Volk]

The original discussion http://www.livejournal.com/users/olegvolk/42833.html?nc=10

We normally hold very drunk people as incapable of giving legal consent for activities such as intercourse. Mentally incompetent people who are wards of others are considered incapable of entering contracts. Do mentally incompetent adults have the ability to consent meaningfully to sex? If no, then does it harm or help them? What about the children from such activity who would, of necessity, be cared by others at the cost to the other of the opportunity to apply the same time and resources on behalf of their own offspring?

[Bemidjiblade]

As I understand it, mentally challenged persons are considered able to consent only to persons of similar awareness.  Someone who's spent a lot of time in Protective services et cetera told me that consenting relationships would require a third party supervisor to make sure that the challenged person in question was not being exploited.  I'm afraid I don't know much more beyond that, as it's only come up in one or two conversations with professionals who would know.

Um... I think perhaps the best analogy is that drunk persons are capable of consenting with equally drunk persons, but a sober person having sex with a drunk person is in extreme danger of being charged with a sex offense.

[crt360]

Funny how you can be too drunk to be a responsible party to a sexual encounter, too drunk to be responsible for a contract that you signed, but no level of intoxication will relieve you from any responsibilty behind the wheel of an automobile.

What was the old saying about alcohol helping ugly people have children?

I don't know how often truly mentally incompetent people (those under a guardianship) have sexual encounters, except when they are being assaulted by a worker at a hospital or living facility.  The few I've known didn't exactly have "getting laid" at the top of their priority list.  I have no idea how a sexual thing goes down between them ("have your guardian call my guardian, so we can get it on"???), but I'd imagine it is highly discouraged.  Does it harm or hurt them?  I guess it depends on how they do it and how it affects them psychologically, as well.  I don't want to offend anyone here, but I would not want to be conceived by two mentally incompetents.  The kid might turn out to be wonderful and run for president, but I suspect the odds are highly against it.  As far as taking care of the child, there are pro-life organizations that seem to think we have more adopting parents in waiting than needy children available.  If they were right, this would be no problem.  I tend to disagree.

[Oleg Volk]

On adoption: not many want kids with known or likely mental problems. In any case, it would seem that a person who can't understand the consequences of sex would be better off on a pemanent contraceptive...which pretty much goes back to the pre-1970s practices of sterilizing those who are wards of others or the state. The concept of one person making like-altering decisions for others, even for their own good, isn't comforting.

[Strings]

Oleg, I think that would boil down to who's rights trump whose: does the ward's right to procreate (or have the ability to) trump our right to enjoy our own money?

 While I don't like the idea of having someone make such a big decision for another human being, I also don't like the idea of paying for the offspring of any such person. It's a quandry, no?

[280plus]

I recall a cute little couple I knew once. Both mentally challanged but still able to function in society. They had been inseparable for years and it turned out they'd never had sex. The reason? THEY DIDN'T KNOW HOW!! So my former girlfriend, who was a bit of a horn dog, took his girlfriend aside and well, gave her some "instruction" on the finer points of having sex and they went on to enjoy life that much more. I don't know if any children came of it or what would have happened if there had. I haven't seen them in years now. Interesting question though.

[El Tejon]

It depends, doesn't it always?

There are lots of degrees of mental incompetence.  For example, what do you call a mentally incompetent person in a black dress?  Right, "your honor".

Is the "mentally incompetent" person declared a ward of the court?  Is the "mentally incompetent" person under care in a hospital or institution?  Or, is the "mentally incompetent" person living independently with employment.  (One of the charities my Kiwanis Club is involved in finds employment for the mentally challenged).

Ability to consent on a Rape or Criminal Deviant Sex or Sexual Battery is always a fact sensitive question.  Some states draw bright lines, some do not.