This is a promised follow-up to this post , which suggests a due process challenge to Sex Abuse II when the "victim" is 17 years old. The quote below isn't intended to be a definitive answer to the standing issue, but I just want to encourage defense lawyers to see standing as -- at worst -- a surmountable obstacle.
In a 9th Circuit case involving the constitutional right, under the Lawrence analysis, of a mentally ill woman to have intercourse, the dissent noted the following:
- If JH has, in certain circumstances, a constitutionally protected right to consent to sex and she does in fact consent, then there is no constitutionally legitimate basis, under Lawrence, to preclude Anderson from having sex with her in those circumstances. Anderson therefore need not satisfy the doctrinal requirements of jus tertii or third-party standing (although I believe that he could).
Anderson v. Morrow, 371 F.3d 1027, 1040 (9th Cir. Or. 2004)