Still more on sex and the mentally retarded:

Clayton Cramer faults the dissenting judge in the Ninth Circuit decision that I point to below (Marsha Berzon) for her interpretation of Lawrence v. Texas:

For all that supporters of Lawrence talk about love, commitment, and relationship, the fact of the matter is that by scrapping all notions of sexual morality between adults, Lawrence is opening the door to scrapping laws intended to protect an adult with the mental capabilities of a chid from exploitation by a guy who barely knew this woman. . . .

I sympathize in some measure with Cramer's point, and I think there's a good argument here that the sexual autonomy rights of the mentally retarded should be determined by legislatures, and not as a constitutional matter.

But at the same time, it seems to me that Cramer's argument misses an important point: Sure, the mentally retarded are vulnerable to sexual exploitation. But if statutory rape laws were fully enforced, then the mentally retarded would be vulnerable to a lifetime with no sexual relationships, even loving, nonexploitive relationships. And even if they aren't fully enforced, then they are vulnerable to a lifetime of sexual relationships only with people who are willing to face time in prison to have such a relationship with them.

Even if one believes that the law should enforce sexual morality, what does sexual morality tell us about this situation? That people who are mentally retarded ought never be allowed to have legally tolerated sex with anyone? That they may only have sex if they're married -- even though such a "marriage" might be a sham, because they cannot comprehend the moral or legal obligations that go with such a marriage, and because they cannot meaningfully consent to the marriage any more than they can meaningfully consent to nonmarital sex? (Should state law even allow marriages among people who are mentally retarded enough that they can't consent to sex, and can't enter into many other much less important contracts?)

Again, I'm far from sure what the right answer is here. And I agree that talk of autonomy and freedom of choice isn't fully apt (and perhaps isn't apt at all) when we're dealing with people who lack the mental capacity to fully comprehend the nature and consequences of their choice. But talk of legally enforced sexual morality doesn't seem to be entirely helpful here, either; and while talk of avoiding exploitation is important, I'm not sure that it provides a complete answer, for the reasons I give above.