Olathe ? Johnson County prosecutors have dropped criminal charges against a nurse’s aide accused of sexually assaulting a brain-damaged patient, saying she may have met the state’s criteria for sexual consent.

The case involving a woman in her 40s who a doctor said had the mental capacity of a 3-year-old has prompted some to suggest the state should change the law regarding consent.

Brent A. Wheeler, 38, of Lawrence, had been charged with sodomy. He formerly worked at a Gardner rehabilitation hospital where the alleged incident took place.

Kansas law says people can consent to sex if they understand the sexual nature of the act and can refuse to participate. Doctors say the woman could have met those criteria.

“I’m just kind of amazed — this is very disheartening,” said Palle Rilinger, chief executive officer of the Metropolitan Organization to Counter Sexual Assault, who is calling for law changes in Kansas and Missouri.

Defense attorney John DeMarco praised the dismissal, saying that he doesn’t believe Wheeler was guilty of sexual assault.

But Rilinger said caretakers who have sex with patients should face legal consequences even when the acts are considered consensual. She noted that women with disabilities are up to five times more likely to be sexually assaulted than other women.

“The elderly and disabled are easy prey,” she said, adding that the issue of consent can be a tough one to address. “When is the line crossed?”

Johnson County District Attorney Phill Kline said, “There’s moral wrong and there are acts contrary to the law, and sometimes they’re different.”

Because the sex act was consensual, the only issue was whether the woman had the capacity to consent, he said.

“And the state’s doctor says she does under the law — there’s not much you can do with that,” Kline said.

Prosecutors said the incident involving Wheeler at the Meadowbrook Rehabilitation Hospital was reported to police by the hospital on Dec. 3, 2007, after workers witnessed what they thought to be a sexual act.

Angela Hullinger, the hospital’s chief executive officer and administrator, said Wheeler was fired the day the incident was reported. If faced with a similar incident, she said the hospital would respond the same way.

Assistant prosecutor Michael McElhinney said during a hearing Monday that a doctor at the hospital initially told prosecutors that the woman couldn’t have knowingly consented. But the doctor changed his mind after reading the state’s definition of consent.

Even if the state proved the woman couldn’t consent, it still would have to show that Wheeler knew she couldn’t agree to the act, said Kansas City law professor and defense lawyer Sean O’Brien.

He said it would be simpler to make it a crime for a hospital worker and a patient to have sex. “Make the relationship trigger the criminality,” O’Brien said.

Kansas Sen. John Vratil, R-Leawood, said the issue of people with disabilities consenting “is perhaps something we should take a look at.” He noted that about four years ago, Kansas made it a crime for teachers to have sex with their students.