This study was conducted under the authority of a resolution offered by Del. Robert F. McDonnell to investigate the worthiness of Virginia law to protect those who are mentally incapacitated from rape and sexual assault. The resolution was offered largely in response to an occurrence in Virginia Beach involving sexual activity between a mentally retarded young woman and three men, one of whom the young woman knew. The men were not prosecuted for rape. The victim and her parents believed that the incident should have been considered a rape. This raised the issue of whether the law as it exists is sufficient to protect the mentally incapacitated.

The subcommittee considered the possibility of a "bright line" test to be used with mentally retarded victims. The line would be a number representing the mental age of a mentally retarded person below which he or she could not legally assent to sexual activity. The members heard a great deal of testimony on this subject from the legal and medical community and learned that there are many variables in determining a "mental age," including the person(s) making the evaluation. They concluded, in agreement with the Court of Appeals decision in Adkins v. Commonwealth, that a determination of capacity to consent to sexual activity should be made on a case-by-case basis and that the adoption of an arbitrary "bright line" mental age would in some cases certainly result in the criminalization of consensual, noncriminal sexual behavior.

The members also investigated the protection afforded the mentally incapacitated by current statutory law on rape and sexual assault. The subcommittee concluded that those laws as they currently exist are adequate and properly written.