Vukodinovich

Statistics show that 1 percent of the United States population has developmental disabilities. (Note, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity (1997) 83 Va. L.Rev. 799, 801.) Given this percentage, there has been a “movement toward the normalization and mainstreaming of . . . individuals [with developmental disabilities]” in our society. (Id. at p. 799.) “Greater integration into society has created opportunities in education, vocational training, and recreational activities.” (Ibid.) It has “also led to more opportunities to develop consensual intimate relationships that are often positive. While opportunities for consensual relationships have increased, the sexual exploitation and abuse of [individuals with developmental disabilities] continues to be a major problem.” (Ibid.)

Penal laws in California help address this problem by making it a felony to engage in, among other things, sexual intercourse, oral copulation, and digital penetration with a person who “is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.” (Pen. Code, §§ 261, subd. (a)(1) [sexual intercourse],…