In Iowa, a jury has found longtime Iowa state lawmaker Henry Rayhons not guilty of sexually abusing his wife by having sex with her at a nursing home. A doctor had told Rayhons that she had advanced Alzheimer’s disease. and was no longer mentally capable of consenting to sex.
At the trial, Assistant Attorney General Tyler Buller told jurors that Donna Rayhons’ Alzheimer’s disease had worsened in the months before last May’s alleged incident of unconsented sexual intercourse by her husband. She had washed her hands in dirty toilet water, Buller said, forgotten how to eat a hamburger and thought her first husband was still alive. Dr. John Brady later testified that Donna Rayhons had severe dementia, and thus any positive reaction to her husband’s physical advances could be termed a “primal response” at best. Brady testified that Donna Rayhons’ cognitive capacity had declined dramatically in the months leading up to the alleged offense. He explained that she had been diagnosed with Alzheimer’s based on several tests, including a standard cognitive procedure in which patients are asked simple questions. By May, Brady said, Donna Rayhons scored a zero on that test, and any score below eight indicates severe impairment, he said.
On his blog, the Volokh Conspiracy, Prof. Eugene Volokh makes a valiant effort to justify, excuse, or perhaps be compassionate regarding a man having sex with his wife after she has forgotten who he is or even what sex is. He argues,
……it seems to me equally obvious that we must consider the parties’ past and unrevoked consent as relevant in some situations where there’s neither a “no” or a “yes.” If A starts caressing B’s genitals while B is sleeping, that’s generally a serious crime. But if A and B are sexually involved, it seems to me it shouldn’t be a crime at all — especially if this has happened before and both parties were quite happy about it — unless B wakes up and says no, or has indicated lack of consent to such behavior in the past.
This is just a reflection of the fact that “consent,” like much in life, can be implied and long-lasting and not just express and short-term. If we’re good friends and you keep letting me borrow something, that may be evidence of consent to borrow it even when I’m not around to expressly say, “Yes, you can borrow it again.” That immediate consent is impossible, because you’re absent, doesn’t mean that there is no consent. Sex is not identical, of course, to borrowing gardening equipment, but in this respect it strikes me as similar: Even when someone isn’t able to immediately consent, it’s sometimes (though not always) reasonable to determine whether they would have consented by looking to past practice among the parties.
And this is especially so, I think, when the incapacity is permanent or at least long-lasting. I don’t think the law should require lovers or spouses to wake each other up before touching each other’s genitals, even when past practice suggests this is consensual. But at least such a requirement would only slightly interfere with people’s lives.
If the law criminalizes sex among lovers altogether once one of them has become mentally incapacitated, however warm their relationship was beforehand, that’s a lifetime constraint. And it’s not just a constraint once the incapacitation sets in. It’s a burden even on people who are not yet incapacitated but who know they are getting there, and who are upset that for many years to come they would be unable to give this sort of pleasure to their life partners — or to get this pleasure from them. If you were facing such a mental decline, would you want to know that the law will “protect” you from your beloved husband or wife this way?
No. Actually, I wouldn’t mind too much if the law didn’t protect me from being fed into a shredder at that point.
I’ll agree with the professor on the law: this isn’t rape, and the vagaries of the situation are sufficient to render criminalization impractical. However, the conduct, assuming Henry Rayhons did have sexual relations with his uncomprehending wife, is unethical—disrespectful, selfish, dehumanizing, and ugly. He was using his wife as a masturbatory sex device, like a blow-up doll. That’s not love. That’s debasement. Volokh’s solution of presuming that the wife would want to “give pleasure” in such a crude way, unmoored from any consciousness or enjoyment on her part, assumes that anyone can really know what their condition will be after all comprehension has left them, and that they should be able to consent to their spouse’s whims regarding use of his or her body.
Can the spouse consent to being used as a Halloween decoration to amuse her husband? How about a scarecrow, or second base in a softball game? Why are any of these grotesque post-sensibility roles less acceptable than that of an involuntary sex toy?
For some indignities, “presumed consent” may mean someone can be treated in a dehumanizing fashion, but it cannot change the fact that he or she shouldn’t be, especially by someone who supposedly loves them.
Ethics Alarms 
That’s sickening. Marriage is a covenant of love and support between a man and a woman for life. The words of the traditional marriage vows are self-explanatory in that regard. It’s not about sex on demand. It’s certainly not about a husband forcing himself on an old, senile woman who should be able to trust to him in her final ordeal of life. This is just as perverse as other sexual “issues” I’ve commented on. Dear God, is there no sense of decency left at all??
Revolting
Succinct and to the point.
I’m surprised that the comment accusing me of mistaking “ick” `for “unethical” hasn’t appeared yet. I even wrote down the name of the regular here who is most likely to post it.
He never loved this woman. How tragic. One of my great dilemmas stems from a fear that I’ll one day succumb to this. What a horrible thing, to have your whole universe squeezed down into a singularity. The thought of it is so terrifying, like being smothered. My dilemma is knowing that I would need my wife like never before, but also knowing that I love her so much that I would insist she leave.
Though, I could never leave her. This guy is a real bastard.
You might want to be careful with phased like “he never loved this woman” I’m assuming you didn’t catch the word “assuming” in Jack’s post. It wasn’t actually established that they had sex. From the original article about it: “Henry Rayhons testified in his own defense that on the night in question the couple held hands, prayed and kissed at her nursing home, but had no sexual contact.” Volokh was effectively stipulating that they did to explore the idea of consent in that case.
Assuming that he did have sex with her, and that the issue at hand in court was whether or not such conduct was legal, and not whether or not it occurred, I stand by my assertion. If it did occur, the only other possibility is that something happened during their life together that kindled malice and extinguished love. Otherwise, this seems to reveal a lifetime of, at best, a very superficial facsimile of love and respect.
“If we’re good friends and you keep letting me borrow something, that may be evidence of consent to borrow it even when I’m not around …”
If you took (stole) something when I wasn’t around, that would be evidence of the fact that we weren’t good friends anymore.
I just fixed about 10 typos in this short piece. Damn.
I now have the answer regarding how much worse my typing and proofreading is when I’m working on a laptop, in an airport, at the gate, trying to get a post up before losing the rest of the day in air travel Hell: a LOT worse. And I bet you didn’t think it COULD be worse!
I’m sorry. Getting posts up on the road is an adventure.
Their last name in the first paragraph.
Fixed, thanks.
“Can the spouse consent to being used as a Halloween decoration to amuse her husband?”
What if every single Halloween they had put on a haunted house and her cherished role was to be a scary monster sitting at the door, rendering the initial fright?
Every single Halloween.
I think that would most accurately line up the analogies and fit volokh’s requirements for “implied consent”.
It would!!!
I’m a big fan, but EV was really stretching in that post. I wonder if there’s a personal back story.
I can see his reasoning and I think there are two or three sliding scales intersecting on this one. I’ll expound later.
Dementia runs in the family, so we are acquainted with the effects and the misery involved.
In this, we did everything, literally everything, to remind affected family members of “the old days”.
If dementia truly ruins a person’s ability COMPLETELY to recall all the old familiar & familial things, then any effort on friends and family’s parts is at worst, a waste of time. However, if it does spark even a minute recollection of happier times during what must be a very confusing and scary time for some people, then it’s a benefit.
Here’s where this scenario gets mucky:
1) On the sliding scale of “what can we do to help our affected family member recall”, obviously on the milder end of behavior is conversation, joking, visiting, going out to old places, etc. On the other end would be the more personal and privately interactions, arguably, sex being near that end.
2) Muddling that analysis is the question of whether or not the “actor” trying to interact with the affected person is doing it for their own pleasure instead of the affected person’s. In most instances of sliding scale #1, it’s obviously an altruistic effort to spark someone’s memories. (but even then, how much of palliative care actually is angled towards reminding the unaffected that someday, people won’t give up on them). (this is probably where any Ick Factor enters the scenario)
3) You forgot to mention that this man is an Evil Republican, which explains everything. He probably left his SUV running in the parking lot while he was at it.
Believe it or not, the guys party affiliation never even occurred to me as a relevant factor, which of course it isn’t.
I must say that “I’m doing it for her own good” always rang false to me when it was applied to a timid young but plain virgin who “needed to get laid,” and it rings even more false, if that’s possible, when the supposed beneficiary no longer understands what “getting laid” means. A score of zero on the comprehension test means that the women was just short of being an animated turnip. Who are we kidding?
If dementia truly ruins a person’s ability COMPLETELY to recall all the old familiar & familial things, then any effort on friends and family’s parts is at worst, a waste of time. However, if it does spark even a minute recollection of happier times during what must be a very confusing and scary time for some people, then it’s a benefit.
Here’s where this scenario gets mucky:
1) On the sliding scale of “what can we do to help our affected family member recall”, obviously on the milder end of behavior is conversation, joking, visiting, going out to old places, etc. On the other end would be the more personal and privately interactions, arguably, sex being near that end.
What if they couple was happily into S&M? Would you argue that it would be beneficial to inflict once welcome pain on the faint hope that it would spark memories?
Invading private orifices and ejaculating bodily fluids is a big, big leap from “conversation, joking, visiting, going out to old places, etc.” But I’m sure its a lot more fun for a horny old guy who has no other prospects from getting his rocks off and has a captive sex slave. Jesus.
In the past, when I mention a sliding scale or a continuum of conduct, I always indicated that there are cutoff points on that continuum where one side is acceptable and the other side isn’t. I made the mistake of assuming that cut off point didn’t need to be mentioned.
Here’s where your language comes close to precluding ALL conduct on that continuum, even reasonable actions:
“A score of zero on the comprehension test means that the women was just short of being an animated turnip. Who are we kidding?”
Now, given that I haven’t defending his specific conduct, rather defended the line of reasoning from which Volokh approaches this topic, while not agreeing with his “cutoff” point, the rest of this last reply is a solid straw man…
Got it.
And the republican jab was non substantive. I was merely joking about the tendency in media to mention party when a republican is involved and to not do so when democrats are.
SHHHHH! Stop trying to keep Democrats from sneaking!
I guess all I can think about this case is related to the Golden Rule: It isn’t fair. No, really: If the roles were reversed, and the wife chose to jerk-off or blow-job the debilitated husband, she could always point to his erection and/or ejaculate and say, “SEE? He ENJOYED it! Just like old times! Just between him and me! How DARE anyone say I touched him inappropriately!” Her poor husband does not have the same luxury. I am not defending what he did; I am just saying how the Golden Rule is unfair here.
The devil is in the details, for sure, but Ive known of many individuals with Alzheimer’s and/or dementia who were sentient at times, sometimes fleeting and sometimes more protracted. That’s not addressed at all here and I’m not a mental health professional or an MD, but it certainly seems relevant.
Plain and simple, this male who had sex with his wife, who most likely didn’t even know who the hell he was, is a sexual abuser. All he was concerned with was his penis. It’s been said that it’s not clear if he did have sexual relations with her, but seeing his picture, ( looking like a pervert) and knowing how men are when it comes to sex, I would bet that this male did have sexual relations with his mentally sick wife. I would see this as rape!!. Just because he’s married to her, does not give him the right to have sex with her in her condition!!!. He took advantage of her situation, if I were the judge, he’d be in prison. Being married to someone, even if their healthy does not give him sexual rights to his wife. If she was able to, she probably would have rejected him. He does not OWN his wife’s body to use as he pleases. Figures a male judge would see it his way!!. I’M so sick of you males with your damn penises!!!. You have a damn hand, get your damn self off, and leave sick females with dementia alone!!! If I were his wife, even with dementia, he would NOT have his damn penis any damn more!!!!!.