University of Illinois Law Review

In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mentally retarded individuals, concluding that throughout history society has viewed mentally retarded persons as either asexual and childlike or hypersexual and at risk of producing offspring "as defective as themselves." Professor Denno then demonstrates how these stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. Such a standard is so strict that it can preclude consensual sex with mentally retarded persons under any circumstances. As a result, courts are hurting the very people they are supposed to protect and failing to respect those people's dignity. To remedy this incongruity, Professor Denno proposes that courts making consent determinations apply a contextual approach, which incorporates among other things modern knowledge about the adaptive capabilities of mentally retarded individuals as well as information about the situational context of the sexual conduct.

Finally, Professor Denno discusses the regulation of sexual relations in the context of institutions and residential homes for mentally retarded individuals. This issue is important for two reasons. Such regulation demonstrates the maximum extent to which legal standards can infringe upon the rights of mentally retarded individuals, and it illustrates the most complicated dimensions of the contextual approach. In light of this discussion, this article concludes that most mentally retarded individuals have the capacity to consent to sexual relations, they have the right to do so, and unnecessarily broad and moralistic restrictions infringe upon that right.

* Associate Professor of Law, Fordham University School of Law. B.A. 1974, University of Virginia; M.A. 1975, University of Toronto; Ph.D. 1982, J.D. 1989, University of Pennsylvania. Portions of this article were presented at the 1994 Annual Meeting of the Law & Society Association in Phoenix, Arizona, where I benefitted from questions and suggestions.