A 17-year-old girl had sex with a 16-year-old boy who has Down Syndrome, can the girl be charged with rape?

The sex was consensual.  Also, if the family doesn’t want to press charges, can the girl still be prosecuted, and under what circumstances?

Asked on October 12, 2011 under Criminal Law, New Jersey

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Potentially a seventeen (17) year old girl who is a minor who had sex with a sixteen (16) year old boy who has down syndrome could be charged with raping him if he did not consent to the act or did not have the mental capacity to understand what was going to happen or did happen.

There are different degrees of down syndrome, some exteme and some not so extreme as to the ability of the person having the condition to understand or not undertstand what is before him or her.

If the boy's family does not want to press charges for the alleged rape, the district attorney's office could still prosecute the claim. Most likely it will not. I suggest that the girl's family consult with a criminal defense attorney before things get out of hand.

Good luck.


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