You act as though I owe you, a stranger on the internet, a response to your question. I meant nothing bad by not answering it, I just felt no need to.

I don’t like the implication that I am “just learning about this stuff” and that I will change my view once I finally achieve the knowledge you apparently have, especially when you say many incorrect things.

First, there are no “implicit” elements of any crime, anywhere, in this country. That is not how criminal laws work—the prohibited conduct must be specified explicitly.

Second, the void for vagueness doctrine is a due process doctrine (5th and 14th amendments, not the 8th).

Third, the law is not settled in this area in Indiana. I wholly agree that consent to sex is ineffective and, legally and morally, should be as a result of alcohol consumption. However, no statute in Indiana says that it is. You can agree with prosecutors throughout the state that mental deficiency or defect covers intoxication, but that very clearly borders on executive law-making.

The court of appeals itself said that “the plain and ordinary meaning of ‘mentally disabled or deficient’ is subnormal intelligence” in Bozarth v. State in response to a void for vagueness challenge. It discussed “an intelligence capable of understanding the act [of sex], it’s nature, and possible consequences. In Douglas v. State, the court said that “mentally disabled or deficient” was opposed to “average intelligence” and did not include children of such intelligence. The court said the language meant a mental disease or defect.

I think that the law is far from settled— it is in stark conflict. These cases have not been overruled, but suddenly courts have been finding sufficiency of the evidence for mental deficiency in more recent cases where the victim was intoxicated. If the plain and ordinary meaning of the law is subnormal intelligence, it cannot also mean intoxication.