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MINNESOTASection 609.342, subd. 6. Mentally impaired. "Mentally impaired" means that a person, as a result of inadequately developed or impaired intelligence or a substantial psychiatric disorder of thought or mood, lacks the judgment to give a reasoned consent to sexual contact or to sexual penetration.EXAMPLES OF LANGUAGE FROM OTHER STATESArizona: (b) The victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. For purposes of this subdivision, “mental defect” means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another. ArkansasThere is a lack of consent if a person engages in a sexual act with another person by forcible compulsion or with a person who is incapable of consent because he or she is physically helpless, mentally defective or mentally incapacitated, or because of a victim’s age. Arkansas Code §§ 5-14-103; 5-14-125.“Mentally defective” means that a person suffers from a mental disease or defect that renders the person incapable of understanding the nature and consequences of a sexual act; or unaware a sexual act is occurring. Note: a determination that a person is mentally defective shall not be based solely on the person’sIQ. Arkansas Code §§ 5-14-101(4).Delaware(a) “Cognitive disability” means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. “Cognitive disability” also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation.Rhode Island“Mentally disabled” means a person who has a mental impairment which renders that person incapable of appraising the nature of the act. Maryland“Substantially cognitively impaired individual” means an individual who suffers from an intellectual disability or a mental disorder, either of which temporarily or permanently renders the individual substantially incapable of:(1) appraising the nature of the individual’s conduct;(2) resisting vaginal intercourse, a sexual act, or sexual contact; or (3) communicating unwillingness to submit to vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301Michigan(i) “Mentally disabled” means that a person has a mental illness, is intellectually disabled, or has a developmental disability. Tennessee“Mentally defective” means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of the person's conductTexasUnder Texas law, sexual assault “without the consent” of the other person arises when. . . (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting itVermont(D) knows that the other person is mentally incapable of resisting, or declining consent to, the sexual act or lewd and lascivious conduct, due to a mental condition or a psychiatric or developmental disability as defined in 14 V.S.A. § 3061. Washington(16) “Frail elder or vulnerable adult” means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. “Frail elder or vulnerable adult” also includes a person found incapacitated under chapter 11.88 RCW, a person over eighteen years of age who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW.WyomingThe actor knows or reasonably should know that the victim through a mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim's conduct.MODEL PENAL CODE – SEXUAL ASSAULT AND RELATED OFFENSES, Tentative draft #2, (2016)(1) Rape of a Vulnerable Person. An actor is guilty of Rape of a Vulnerable Person, a felony of the second degree, if he or she knowingly or recklessly engages in an act of sexual penetration with a person who at the time of such act: (a) is sleeping, unconscious, or physically unable to communicate by words or actions a refusal to engage in such act; or (b) is unable to express refusal, by words or actions, to engage in such act of sexual penetration, because of mental disorder or disability, whether temporary or permanent; or (c) lacks substantial capacity to appraise or control his or her conduct because of drugs, alcohol, or other intoxicating or consciousness-altering substances that the actor administered or caused to be administered, without the knowledge of such other person, for the purpose of impairing such other person’s capacity to communicate, by words or actions, his or her refusal to engage in such act. (2) Sexual Penetration of a Vulnerable Person. An actor is guilty of Sexual Penetration of a Vulnerable Person, a felony of the third degree, if he or she knowingly or recklessly engages in an act of sexual penetration with a person who, at the time of such act: (a) is mentally disabled, developmentally disabled, or mentally incapacitated, whether temporarily or permanently, to the extent that such person is incapable of understanding the physiological nature of sexual penetration, its potential for causing pregnancy, or its potential for transmitting disease; or (b) is mentally or developmentally disabled to the extent that such person’s social or intellectual capacities are no greater than that of a person who is less than years old; or(c) has not expressly refused to consent to such act, but is unable to express by words or actions his or her refusal to engage in such act, because of intoxication, whether voluntary or involuntary, and regardless of the identity of the person who administered the intoxicants. ................
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