Is Sex With a Brain-Damaged Man Assault?
Last week, my boss asked me to write a program that would send frequent text messages to our customers, without first getting their assent, or ‘‘opt in.’’ Aside from my general distaste for unsolicited business communications of any kind, I became aware (via Googling) of various terms of service and industry regulations
that specifically prohibit the sending of commercial text messages without first getting a recipient’s explicit permission.
If the situation were reversed — if a cognitively damaged woman who could not live on her own became
pregnant by a cognitively normal man — assault charges would most likely have been brought.
In your account, the man, despite his deficits and significant aphasia, also seems to have appropriate and coherent beliefs and desires: He knows he has a child, wants to see
that child and grieves because that child has been kept from him.
Even if the sex itself wasn’t violative, the man may not have been in a position to discuss whether
he wanted to have a child with this woman, and therefore to think about contraception.
You don’t give us reason to think that, in a sexual situation, he wouldn’t be able convey the sentiment ‘‘I don’t want this.’’ For
that matter, we don’t know whether he or the woman initiated the sexual activity.
But from my perspective — despite the fact that I have some stock options, I am mostly a rank-and-file worker and don’t have as much at stake — what jumps out is
that by writing the code I am being asked to write, I may be breaking a law, or at least some very clear industry standards.
If she had been trying to get access to his resources — his financial situation is comfortable, you say
— this would be a further wrong: exploiting another person’s vulnerabilities to your own advantage.)