Statutes criminalizing sex acts with people who are incapable of giving legal consent due to developmental disability do not violate federal and state rights to privacy. Defendant was the bus driver for a nonprofit agency which provided jobs for individuals with disabilities. He drove the 49-year-old, developmentally disabled L. to her job. Over several years, he engaged in numerous sex acts with L. A jury convicted him of a number of sex offenses and he appealed. Held: Affirmed. It is a felony to engage in sexual acts with a person who is incapable of giving legal consent because of a mental disorder or developmental disability. (See Pen. Code, §§ 261, subd. (a)(1) [sexual intercourse], 288a, subd. (g) [oral copulation], 289, subd. (b) [penetration by a foreign object].) Citing Lawrence v. Texas (2003) 539 U.S. 558 (holding that defendants’ criminal convictions for adult consensual sodomy violated their privacy and liberty interest protected by the Due Process Clause of the Fourteenth Amendment), defendant argued that statutes criminalizing sexual conduct with persons incapable of giving legal consent due to a developmental disability are unconstitutional because they violate federal and state rights to privacy. However, the decision in Lawrence did not extend beyond protecting the private sexual conduct of two consenting adults. Laws protecting those persons incapable of giving legal consent are necessary to protect individuals with disabilities.

There was substantial evidence that L. lacked the ability to give legal consent to participate in sexual acts. Legal consent is the “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (See Pen. Code, § 261.6.) Here, there was evidence that L. had an IQ of 37, and the mental age of a three- or four-year-old. She could not cook, read or write, and lacked knowledge about sex. Under the reasoning of prior cases, there was substantial evidence that L. was incapable of giving legal consent during the charged sex acts with the defendant. While defendant claimed that some of L.’s statements that she wanted to have sex with defendant reflected her consent, the statements did not prove capacity to give legal consent. “What appears to be consent from somebody who lacks capacity to consent is, in effect, nothing at all.”