concurring.
While I concur in the result reached by the plurality opinion, I disagree with the reasoning touching on the consent issue.
Reavis claims that her consent was ineffectual because she was abused as a child, more than 20 years before the alleged *734incident in the instant case. Reavis offered the testimony of Drs. Moore and Sime to show that the abuse she suffered as a child made her incapable of giving consent in the instant case. As the plurality characterizes Dr. Sime’s testimony, it was as a result of her childhood sexual abuse that Reavis would have difficulty saying no and enforcing her refusal. Dr. Moore testified that she had difficulty saying no and meaning it.
While the testimony of Drs. Sime and Moore may support a conclusion that Reavis suffered some type of dysfunction as a result of her abuse, it does not support a conclusion that she lacked the legal capacity to consent. On the issue of legal capacity, in their treatise on the law of torts, Prosser and Keeton say “[t]he abnormality [suffered by the consenting person] must substantially impair the plaintiff’s capacity to understand and weigh the harm and . risks of harm against the benefits flowing from the proposed conduct, and must reduce that capacity below the level of the average person.” (Emphasis supplied.) W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 at 114-15 (5th ed. 1984). Drs. Sime and Moore did not testify that Reavis’ prior sexual abuse impaired her ability to understand the consequences of sexual intercourse or that it impaired her ability to weigh the harm and risks of harm of engaging in sexual intercourse against the benefits — they merely testified that she cannot say no.
Thus, the abuse that Reavis suffered as a child is not relevant to the issue of whether she consented on the afternoon of December 31, 1991. Therefore, the district court erred in receiving the testimony of Drs. Sime and Moore on the issue of Reavis’ alleged lack of legal capacity to consent to sexual intercourse.
Gerrard, J., joins in this concurrence.