(Concurring).
I concur with the majority opinion, but must explain my concurrence insofar as it relates to the single issue of M.G.’s status as a mentally defective person, discussed by Judge Ashbey in section A2 of her opinion. Were this an assault case involving a lone actor, even if there had been a claim that the actor was aided or abetted by another, I would subscribe to Judge Antell’s analysis of mental defect in State v. Olivio, 237 N.J.Super. 428, 568 A.2d 111 (App.Div.1989), certif. granted, 122 N.J. 123, 584 A.2d 200 (1990). In such a less-stressful situation, and applying the Olivio standard, the alleged victim most probably could not have been deemed mentally defective under N.J.S.A. 2C:14-2a(5)(b) or N.J.S.A. 2C:14-3a. For all of the reasons stated in Olivio, a contrary finding would cause virtually all sexual activity with a mildly retarded individual to be considered criminal in the eyes, of the law. I cannot read either the current statute or the New Jersey Criminal Law Revision Commission Report and Commentary upon which our present Code of Criminal Justice was largely based, as intending such a result.
Here, however, testimony concerning the group sex and situational confusion it allegedly engendered in M.G. at least *425provided probable cause for a finding that she was ‘‘mentally defective” at the time of the occurrence under review. The statutory definition of “mentally defective” in N.J.S.A. 2C:14-lh notes that the defect is sufficient if it renders the victim “temporarily or permanently incapable of understanding the nature of [her] conduct____” By the use of the term “temporarily,” the Legislature can be said to have recognized not only a defective state caused by a temporary physical or mental defect (such as an operable brain lesion or a severe temporary depression), but also a situational inability of the victim to cope with a sexual situation. This reason is in accord with Dr. Meyerhoff s opinion, explained in the majority opinion, supra, 247 N.J.Super. at 421, 589 A.2d at 646. Since the focus is upon M.G.’s ability to understand the nature of her conduct, I by no means would find that the court’s conclusions were mandated by the evidence, but only that probable cause was a permissible finding.
With this brief explanation, I concur with the balance of the majority opinion in its reversal in part on the issue of force and coercion, and affirmance in part on the issue of sexual relations with a mentally defective person.