The crux of the plaintiff’s claim is that it was improper for the trial court to allow the defendant to present evidence that Kendall consented to the sexual conduct between her and the defendant on the ground that Kendall was legally unable to consent because she was a conserved person…. [A] conservator only has the authority specifically assigned to him or her and any other decision-making authority remains in the conserved person. On the basis of the statutory scheme for conservatorships, we cannot conclude that any conserved person is legally unable to consent to sexual conduct. Instead, we conclude that the issue of whether a conserved person is able to consent to sexual conduct is a factual question for the jury to decide based on the nature of the particular conservatorship and the abilities of the conserved person.In the present case, the plaintiff did not establish, or even allege, that her appointment as conservator of Kendall’s person specifically included the duty to manage Kendall’s interpersonal and/or romantic relationships. Indeed, as the trial court recognized, the evidence demonstrated that Kendall lived in her own apartment, spent unsupervised time there, and was able to make decisions about her household chores and carry on interpersonal relationships, including those on the computer.Instead, the plaintiff maintains that the fact that Kendall was a conserved person was sufficient by itself to demonstrate that she was unable to consent to sexual conduct. We disagree. A bright line rule on this issue, as suggested by the plaintiff, would be contrary to the clear legislative intent as exemplified by the statutory scheme. It would further affect the civil liberties of all conserved persons. Therefore, we conclude that the final determination of whether Kendall had the ability to consent to sexual conduct is a factual question that the jury must decide.
June 5, 2014 at 1:48 PM EDT