On one hand, if legal capacity to consent turns on the mental and emotional ability to make choices, the mentally ill or disabled may lack that ability to a considerable degree, often even more than older children would though of course it usually is just a matter of degree. Mental Retardation Versus Mental Illness Mental illness is separate from but can coincide with mental retardation. What is less known is the rule that having sex with an "incompetent" person can also get you charged with rape. The End of Silent Acceptance? Indeed, as the trial court recognized, the evidence demonstrated that Kendall lived in her own apartment, spent unsupervised time there, and was able to make decisions about her household chores and carry on interpersonal relationships, including those on the computer. Unlike the IQ test, which is given in one setting, this evaluation may require several observations and several examiners to compile a composite of the individual's functioning. States often have statutes for the intellectually disabled person separate from the general sex offense statutes. Yet, because of technological advances that sustain infants with very low birth weight, the prevalence of mental retardation is considered to be constant. These roles lie predominately in the areas of IQ, opinions of competency, and sexual history documentation.
Thus, medical documentation and physician competency rulings form a solid foundation for future work toward legal recourse for the abused. Mental age MA is used to describe a person's intellectual level in terms of what would be expected at a certain chronological age CA in a nonretarded individual. University of Illinois Law Review. A competent individual is able to give informed consent. Totality of circumstances All the facts surrounding the case are weighed up, to determine the cause of the incident. If there are serious deficits in understanding these 3 main criteria, then the primary physician is fully qualified to prepare the proper documents for the court, including relevant descriptions of the patient and opinions from family members, occupational therapists, psychologists, and other observers. Even today, the standard method used by states to estimate its mentally retarded population is simply to take 2. Medical sexual history documentation is a crucial area no longer immune to the eyes of the court; medical records have been recalled and even used against the victim. These roles lie predominately in the areas of IQ, opinions of competency, and sexual history documentation. Legal codes adjudicating sexual abuse cases of the mentally retarded often offer scant protection and vague terminology. The AMA and APA use the deviation from the means method, and an individual's IQ must be at least 2 standard deviations below the mean to be classified as mental retardation. Kendall got involved in a romantic and then a sexual relationship with Craig Martise, which apparently involved a good deal of sadomasochistic behavior. Sexual abuse of adults with mental retardation: Patterns of sexual abuse and assault: Such abuse is often extensive and ongoing. Morality The individual must have a moral understanding of the sexual activity and also understand the nature and consequences of sexual conduct. State court guidelines have evolved not from a comprehensive, well-designed plan but from a series of court decision precedents; thus, comprehensive legal protection for the mentally retarded individual is nearly nonexistent. In Penal Code , California rape law defines an "incompetent" as a situation where "a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. There is an approximately 2-fold increase in psychopathology among mentally retarded persons. Physicians should be aware that many such individuals may be taking psychoactive medications. Third, 6 major tests are used as such a standard to assess the legal capacity of the mentally retarded individual to consent to sexual conduct. Does it mean that a mentally retarded adult should be denied the chance to have a sex life because anyone having intercourse with him or her could potentially be charged with rape? States vary for ages of consent to birth control and abortion. The Tennessee Bureau of Investigation has not exercised editorial control over the contents of this publication; thus, the opinions, conclusions, and recommendations expressed within are solely those of the author and do not necessarily reflect the opinions, position, or policies of the MFCU or the Tennessee Bureau of Investigation. Although, predictably, state laws governing the finding of incompetency and incapacity are both vague and varied, generally there are provisions to establish a guardianship or conservatorship in the case of a ruling of incompetence. Thus, it is crucial to document and report any irregularities as early as possible since such sexual abuse is often part of a wider pattern that may also affect other mentally retarded individuals.
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