They don't just have to prove that she wasn't mentally/physically incapacitated or show that the prosecution failed to prove that she was, but also have to either show that she wasn't *mentally defective* or that the prosecution failed to prove that she was. Those might sound like the same thing, but they're not. The following is how Virginia defines "mentally defective", as taken from Virginia's policy crime definition document regarding consent. (Although it mentions Arkansas code, it's still referencing Virginia's laws and policies.) I've attached an image of the entire page , which also includes the definition for "mentally incapacitied":
There is a lack of consent if a person engages in a sexual act with another person by forcible compulsion or
with a person who is incapable of consent because he or she is physically helpless, mentally defective or
mentally incapacitated, or because of a victim’s age. Arkansas Code §§ 5-14-103; 5-14-125.
“Mentally defective” means that a person suffers from a mental disease or defect that renders the person:
incapable of understanding the nature and consequences of a sexual act; or
unaware a sexual act is occurring.
This makes the defense's job more difficult. It's not just a matter of showing that Barb could do things like walk around, answer phone calls, etc. If the prosecution brings in a diagnosis of dementia or one that shows that Barb had reduced mental capacity to where she didn't didn't understand what was happening, then a conviction becomes much more likely. The document also states: "it is an affirmative defense that the actor reasonably believed that the victim was capable of consent." So his lawyers can't just try and prove that Chris didn't know Barb's mental faculties were lacking, but that his belief was reasonable. What Chris sees as reasonable and how the rest of the world, including members of the jury -or the judge, if it's a bench trial -define the word, might be two very different things.
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