Can someone be too demented to consent to sex with a spouse?

There’s an interesting, and quite disturbing, article in the April 14, 2015 New York Times regarding the upcoming trial of Henry Rayhons, a now-former Iowa State Representative who is “charged with third-degree felony sexual abuse, accused of having sex with his wife in a nursing home on May 23, 2014, eight days after staff members there told him they believed she was mentally unable to agree to sex.” He resigned from state office after his arrest.

Mrs. Rayhons was 78 years old at the time of the alleged incident and was suffering from severe Alzheimer’s. She died in August 2014. Shortly prior to the incident there was a care plan meeting with the nursing home staff and Mrs. Rayhons’ family. At that meeting Mr. Rayhons was informed by staff members that they believed his wife was mentally unable to agree to sex. Mr. Rayhons, now age 78, allegedly had sexual relations with his wife eight days later. The news story suggests that his wife had minimal cognitive ability, still enjoyed going to church, and was generally happy to see her husband.

As the Times article succinctly notes, “The case pivots on longstanding medical and ethical concerns that will become only more pressing as the population ages and rates of dementia rise. How can anyone determine whether a person with dementia can say yes to sex? Who has the right to decide?”

Despite the serious due process concerns over recent “Yes Means Yes” sexual harassment policies on college campuses, I understand why such policies are deemed necessary. For folks who have just started dating, requiring affirmative consent prior to each episode of sexual activity is a useful method of preventing unwanted sexual contact. However, for folks in an established intimate relationship, it is unclear that such every-time affirmative consent should be required. Spousal rape was not even a crime in much of the United States twenty years ago because it was deemed that spouses did not require consent for sex. While unwanted sexual contact by a spouse should be a crime, why should affirmative consent be required between spouses? Marriage is the textbook “intimate relationship”; sexual activity between spouses should be presumed.

It’s possible–I’d grant even likely–that Mr. Rayhons’ decision to have sex with his wife was not based upon a desire for mutually pleasurable intimate contact. However there is no indication that Ms. Rayhons did not consent and I am unclear how nursing home staff has authority to decide whether one of their residents is incapable of consenting to sexual relations with his or her spouse. Before the state indicts someone for having sexual relations with an Alzheimer’-suffering spouse, I would want to see some evidence that the spouse actually withdrew consent or have some prior judicial or government-administrative determination that this spouse lacked the ability to consent.

Allowing medical staff to determine that a patient lacks capacity to consent to sexual activity with his or her spouse patronizes both spouses. I wonder how much of this case is due to squeamishness over old people–especially old people with seriously diminished mental capacity–engaging in sexual activities. It strikes me as quite dangerous to allow medical staff determinations to criminalize what would otherwise be normal marital conduct.

One possible solution is to enable probate courts to determine when a mentally diminished spouse no longer can consent to sex.  I am certain that this is a responsibility probate judges would prefer to avoid.  However allowing hospital staff to make decisions about intimate life with potential criminal consequences is very disturbing.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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