Consent to Sexual Activity Requires More Than Awareness; the Need for Judgment and Appraisal of Significance
In State v. Wallace, 561 P.3d 602 (Or. 2024), the Oregon Supreme Court held that consent to sexual activity requires more than just a general awareness that the act is sexual in nature. Instead, the court clarified that the ability to consent requires an exercise of judgment, including consideration of the potential personal and social consequences of sexual activity.
Facts of the Case
Wallace is a case about Ms. J, a young adult woman with an intelligence quotient (IQ) of 62 and a diagnosis of mild intellectual disability (ID). Because of her disability, Ms. J lived under the legal guardianship of her grandmother and required assistance with most daily activities (e.g., shopping, transportation, finances, and working at a part-time retail job). Ms. J additionally struggled with abstract reasoning, tending instead to think in “very black and white” terms (Wallace, p 606). Socially, Ms. J tended to ascribe positive intentions to others’ actions, leaving her susceptible to manipulation.
In approximately 2016, Ms. J met defendant Chance Neal Wallace at church, and the pair began dating a year later. The court noted that Mr. Wallace “was generally aware of Ms. J’s intellectual difficulties” and that Ms. J’s grandmother had alerted him to some of her specific limitations (Wallace, p 606). Despite this knowledge, Mr. Wallace engaged in multiple sexual acts with Ms. J, including undressing her, taking nude photographs of her, performing and soliciting oral sex, and engaging in vaginal penetration. Ms. J testified that she found these acts “strange,” “uncomfortable,” “scary,” and even “sickening” (Wallace, p 606). Despite her discomfort, she agreed to certain acts out of trust. During other encounters, however, Ms. J described Mr. Wallace’s use of physical force, such as pulling her toward him when she resisted and covering her mouth with his hand when she screamed.
Notably, Ms. J’s testimony at trial demonstrated her significantly limited understanding of sexual concepts. Prior to her relationship with Mr. Wallace, Ms. J expressed curiosity about sex and learned a bit about it by watching movies; otherwise, her “sex education” was very limited. She was unfamiliar with basic reproductive terms, and she lacked a meaningful knowledge of concepts such as pregnancy and rape. Her testimony ultimately reflected an incomplete, often inaccurate, and highly simplistic comprehension of consent, sexual activity, and its consequences.
The state argued that under Or. Rev. Stat. § 163.305(3) (2023), Ms. J was unable to consent to sexual activity with Mr. Wallace, given that her intellectual disability “rendered her incapable of appraising the nature of her conduct” (Wallace, p 609). Mr. Wallace moved for judgment of acquittal, arguing that Ms. J’s awareness of sexual activity demonstrated her ability to consent. He further asserted that the state had failed to prove that Ms. J’s ID prevented her from making an informed decision regarding their sexual interactions. The trial court denied Mr. Wallace’s motion, and a jury convicted him on one count of first-degree rape, two counts of first-degree sodomy, and one count of first-degree sexual abuse. The Oregon Court of Appeals reversed the convictions, holding that the state had failed to establish a direct causal link between Ms. J’s ID and her inability to exercise judgment in consenting to sexual activity as required under existing law in State v. Reed, 118 P.3d 791 (Or. Ct. App. 2005).
Ruling and Reasoning
The Oregon Supreme Court reversed the decision of the court of appeals, affirmed the judgment of the trial court as to some counts against the defendant, and remanded the case back to the circuit court for further proceedings. The court ruled that the appellate court erred. The court found that, unlike in Reed, the prosecution in this case had sufficiently demonstrated that Ms. J’s ID directly impaired her ability to make reasoned decisions about sexual activity. They rejected the argument that Ms. J’s general awareness of sexual conduct was sufficient to establish capacity. Although Ms. J may have recognized that Mr. Wallace was engaging in sexual acts, the court found that “mere awareness that conduct is sexual” (Wallace, p 614) does not equate to an ability to appraise the nature of that conduct. Instead, appraisal requires an understanding of the potential consequences of engaging in sexual activity. Because Ms. J exhibited substantial confusion and distress during and after the encounters, and because she lacked a meaningful understanding of sexual activity, the court held that a rational jury could conclude that she was incapable of exercising judgment regarding consent. The court clarified that the state was not required to prove that Ms. J would always be incapable of appraising sexual activity, only that her ID prevented her from doing so in the specific instances in question.
Discussion
Although capacity to consent to sexual activity has been discussed by disability researchers and advocates for decades, the Wallace decision highlights the relevance of this matter to forensic practitioners. Notably, no formal forensic evaluation of Ms. J’s capacity to consent was conducted in this case; instead, the courts were left to infer her abilities based on testimony and other evidence. But evaluation and testimony from a forensic practitioner could have offered legally relevant clinical expertise regarding her decision-making abilities. Even in sexual assault cases like Wallace, in which an alleged victim has a pre-established ID diagnosis, there may be added benefit of further assessment regarding how the alleged victim’s ID affects the victim’s understanding of the nature and consequences of sexual conduct.
Such capacity-to-consent evaluations must be highly individualized, as not all persons with ID lack that ability. Moreover, although clinical standards for these evaluations have been proposed (e.g., Lyden M. Assessment of sexual consent capacity. Sexuality and Disability. 2007;25(1):3–20), states’ varying statutory definitions of consent have made it difficult to develop standardized guidelines. Instead, evaluators must rely on clinical judgment, research findings, and jurisdiction-specific legal definitions (Baladerian NJ. NAPSA webinar: Addressing capacity to consent to sex for those with intellectual & developmental disabilities [Internet]; 2020. https://www.napsa-now.org/wp-content/uploads/2020/05/2020-5-21-Addressing-Capacity-to-Consent-to-Sex.pdf. Accessed March 17, 2025). Importantly, research indicates that individuals with mild ID may wear a “cloak of competence,” presenting as more capable than they actually are, a phenomenon driven by a desire to conceal their disability and often enabled by the presence of external supports (Edgerton RB. The Cloak of Competence: Revised and Updated. Berkeley and Los Angeles, CA: University of California Press; 1993). Wallace exemplifies this risk, as Ms. J appeared capable in some areas of daily living but lacked the ability to make informed sexual decisions. Forensic practitioners must account for these nuances and consider whether an individual’s competence is more impaired than it initially appears.
Although Wallace highlights the importance of protecting individuals with ID from exploitation, these efforts must be balanced with an ongoing respect for their autonomy. Indeed, overprotective policies can limit opportunities for sexual expression while failing to eliminate the risk of abuse (Murphy GH, O’Callaghan A. Capacity of adults with intellectual disabilities to consent to sexual relationships. Psychological Medicine. 2004;34(7):1347–57). Instead, some researchers advocate for providing extra support to individuals with mild ID (e.g., access to sex education and trained sexual support advisors; Onstot A. Capacity to consent: Policies and practices that limit sexual consent for people with intellectual/developmental disabilities. Sexuality and Disability. 2019;37(4):633–44), which could enable them to make informed decisions about sexual activity.
Ultimately, the ruling in Wallace suggests that forensic practitioners may be increasingly called upon to evaluate capacity to consent. As legal systems continue to grapple with this complex problem, the need for specialized training and clearer forensic guidelines will grow.
- © 2025 American Academy of Psychiatry and the Law
