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Name: People v. Thompson
Case #: E038743
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 09/15/2006

A group home for developmentally disabled people hired appellant to care for its residents, including Renee R. Appellant sexually assaulted Renee R., who did not resist, but dissociated. the sexual assault included intercourse, oral sex, and digital penetration. At trial she testified about what appellant did to her, but said she was in a “deep sleep.” Although the record was clear that Renee, who had Downs Syndrome and several other disabilities, did not consent, it was unclear whether appellant knew she did not consent, and also unclear as to whether force had been used. Because of this, the prosecutor proceeded on the sole theory that Renee was incapable of giving legal consent. Since appellant admitted having sex with Renee, the disputed issue at trial was whether Renee was capable of consent. Renee had some knowledge about sex and testified that she had once had sex with her developmentally disabled boyfriend. She did not know what oral sex was and did not know what foreign object penetration was. Appellant was convicted and argued on appeal that there was insufficient evidence that Renee was incapable of giving consent. He also argued that even if there was sufficient evidence, the statute was unconstitutionally vague. The appellate court rejected the argument and affirmed. Under these circumstances Renee was incapable of giving consent. That does not mean that she could never have consensual sex. Further, since the defendant must know or should know that such a victim is incapable of giving legal consent; the statutes are not unconstitutionally vague.