COLUMBUS, Ohio — The Ohio Supreme Court unanimously upheld the rape conviction of Mark Gasper, confirming that a person with a permanent mental condition can be legally considered “substantially impaired” under state law.
Gasper, an in-home licensed practical nurse, was convicted in 2019 on one count of rape involving a 32-year-old woman identified as K.W., who has cerebral palsy and intellectual disabilities. He had been employed by her family to care for her disabled siblings and engaged in a sexual relationship with K.W.
Gasper was initially indicted on seven counts of rape, but a Hamilton County jury acquitted him on six counts, convicting him on one.
In his appeal, Gasper argued that the trial judge failed to properly instruct the jury on the definition of “substantial impairment.” He contended that the jury might have based their decision on K.W.’s drowsiness from muscle relaxants she regularly took, rather than her permanent mental condition. Gasper claimed this oversight prevented him from adequately addressing the impact of the medication during the trial.
Writing for the court, Justice Patrick F. Fischer stated that the jury instructions were appropriate and consistent with legal precedent. The court clarified that “substantial impairment” refers to a present reduction in a person’s ability to assess or control their conduct, which can result from either temporary or permanent conditions.
“The term ‘present’ in this context means the impairment existed at the time of the offense, not that it was temporary,” Justice Fischer wrote. “The evidence supported the jury’s conclusion that K.W. was substantially impaired due to her intellectual disabilities.”
Expert testimony during the trial offered conflicting views on K.W.’s ability to consent. A prosecution expert testified that K.W.’s mental capacity was significantly impaired, rendering her unable to give consent. In contrast, an expert for the defense argued that she was intellectually capable of consenting.
The jury, after deliberation, submitted a question to the judge asking if medication could be considered when evaluating mental condition. The judge directed the jury to refer to the instructions provided without offering additional explanation. Approximately 30 minutes later, the jury returned with the guilty verdict on one count.
Justice Michael P. Donnelly, in a concurring opinion joined by Justice Jennifer Brunner, expressed concern that Gasper did not raise a constitutional claim regarding his right to a fair trial based on the jury’s question about the medication. “Because Gasper did not challenge this issue, we cannot address potential claims related to due process,” Justice Donnelly wrote.
The court’s decision affirms the earlier ruling by the First District Court of Appeals and clarifies that individuals with permanent mental disabilities are protected under Ohio’s rape statutes when it comes to the definition of substantial impairment.