Kansas prosecutor drops sex case over definition of consent

A nurse’s aide accused of sexually assaulting a severely brain-damaged patient won't be prosecuted because the woman could have been capable of consent, prosecutors in suburban Kansas City say.

Although a doctor said the woman in her 40s had the mental capacity of a 3-year-old, she could have met the requirements for consent under Kansas law, Johnson County assistant prosecutor Michael McElhinney said at a court hearing Monday.

The prosecutor's office dropped a sodomy charge that had been filed against Brent A. Wheeler, 38, of Lawrence. He formerly worked at a Gardner, Kan., rehabilitation hospital where the incident allegedly took place.

The case illustrates the difficulty of prosecuting cases in which the victim has a mental disability, and some people are calling for a law change that would outlaw sexual relations between caregivers and their patients.

"I'm just kind of amazed — this is very disheartening," said Palle Rilinger, CEO of the Metropolitan Organization to Counter Sexual Assault.

McElhinney said a doctor at the hospital originally told prosecutors that the woman could not have knowingly consented. The doctor changed his mind after reading the definition of consent under Kansas law, McElhinney said.

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