Hence, the trial court held a hearing on Ramona's competence outside the presence of the jury, and its decision was reviewed on appeal for abuse of discretion. State v. Peters, 441 So.2d 403 (La.App. 4th Cir. 1983), writ denied, 530 So.2d 560 (La. 1988). Under Louisiana law at the time of trial, La.Rev.Stat.Ann. § 15:469 (West 1981), the trial judge determined the competency of a mentally retarded person using the standard that is applied to children. State v. Burleson, 516 So.2d 1159, 1161 (La.App. 4th Cir. 1987), writ denied, 521 So.2d 1168 (La. 1988).
With regard to the "unsoundness of mind" element of La. R.S. 14:43, courts have held that competency to testify is not the same as the capacity to understand the nature of the sexual act. State v. Peters , 441 So.2d 403 (La. App. 4th Cir. 1983), writ denied , 530 So.2d 560 (La. 1988) ; State v. Ward , 04–1295 (La. App. 5th Cir. 04/26/05), 903 So.2d 480, writ denied , 05-1718 (La. 03/17/06), 925 So.2d 533. There is a vast difference between understanding the distinction between the truth and a lie and understanding the nature and consequences of a sexual assault.
Despite absence of scientific evidence of sexual intercourse, the testimony of the victim can be sufficient to establish sexual penetration. State v. Wallace, 2000-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, writ denied, 2001-1849 (La. 5/24/02), 816 So.2d 297. Also see State v. Pontiff, 604 So.2d 71(La.App. 3d Cir. 1992); State v. Peters, 441 So.2d 403 (La.App. 4 Cir.1983), writ denied, 530 So.2d 560 (La. 1988). At the time of the offense, June 22, 1995, LSA-R.S. 14:41 defined rape as follows:
There is a vast difference between understanding the distinction between the truth and a lie and understanding the nature and consequences of a sexual act. State v. Peters, (La.App. 4 Cir. 1983), 441 So.2d 403, writ denied 530 So.2d 560[, La. 1988]. Id. at 485.
There is a vast difference between understanding the distinction between the truth and a lie and understanding the nature and consequences of a sexual act. State v. Peters, (La.App. 4 Cir. 1983), 441 So.2d 403, writ denied 530 So.2d 560. Clearly, a person, having the mental capacity of a six or seven-year-old child, does not have the capacity to consent to sexual activity.
The competency of a person to be a witness is a question of law to be determined by the trial court and not a factual matter for the jury to decide. LSA-C.E. Art. 104 (A); State v. Peters, 441 So.2d 403 (La.App. 4th Cir. 1983). Proper understanding, not age, is the single general test of witness competency.
Clearly, a person, having the mental capacity of a six or seven-year-old child, does not have the capacity to consent to sexual activity. See La.R.S. 14:43; State v. Peters, 441 So.2d 403 (La.App. 4th Cir. 1983), writ denied, 530 So.2d 560 (La. 1988). See also La.C.C. art. 28, comment (b).
We believe that the trier of fact will weigh the mental capacity of the witness in evaluating the testimony. For example, in State v. Peters, 441 So.2d 403 (La.App. 4th Cir. 1983) a rape conviction based almost exclusively upon the testimony of a retarded twenty-nine-year old woman with a mental age of 6 or 7 was upheld. In this case the mental age of the victim was twice that.
The lack of medical evidence of rape is not dispositive of the question of sufficiency of the evidence since any sexual penetration, however slight, may constitute rape. State v. Peters, 441 So.2d 403 (La.App. 4th Cir. 1983), writ denied, 530 So.2d 560 (La. 1988). Jane testified that Jerry grabbed her wrists and defendant pulled her shorts down past her knees and she started trying to pull away from them.
The matter was remanded to the trial court. State v. Peters (La.App. 1st Cir. 1983), (Docket No. 88 KW 0437, Decided March 21, 1988). The appellate record reveals that, a few days later, a brief hearing was held in the trial court directed toward the motion to suppress Michael's statement.