Rape Charges for a Elderly Husband Having Sex with His Wife with Dementia?

http://www.usnews.com/news/us/articles/2015/04/07/iowa-trial-to-weigh-whether-wife-was-able-to-consent-to-sex

I think that criminal charges are inappropriate here. Anyone else have an opinion?

I’m thinking rape is against the law, so he should be charged.

It is sad but if she cannot give consent then it is rape.

Who would be helped by charging him?

Who would be helped by charging him?

Who would be harmed by not charging him?

Other potential victims in the future.

Throw the book at him. This country has far too many people in loving, committed relationships. It’s a travesty to have them doing their best to live their own independent lives when they could both be wards of the state.

In what possible way are you referring to the couple mentioned in the OP? She was in a nursing home suffering from dementia and Alzheimer’s disease, and even after he was told she was in no condition to consent, he quickly pulled the curtains, jumped her bones until he got off, then tried to hide the evidence.

Rape is definitionally sex without consent. Really:

If the woman in this case is unable to give consent then it is legally rape.

If you want to carve-out an exception for sex with people with dementia call your congresscritter.

You should consider that if she cannot give consent due to dementia and/or Alzheimers then in her mind she is probably having sex with a stranger. I would imagine that’d be terrifying to her.

What was the nature of the continued relationship would be a key factor to me. From the link I found something that needs to be answered before considering if a rape charge is warranted:

So there was a conflict where the nursing staff made a decision and obviously the husband did too. So there is a power struggle, and perhaps a motive to make someone’s life miserable, not for doing actual wrong, but for having opposing views, on both sides. This would have to be looked into and sorted out and could go either way. This should the first thing to sort out, the motivation for behind the original decision for both sides, and the motivation to file charges after she passed away. This would not be a determiner is if this is rape, but would see if there was any ill will and/or impropriety that occurred between the husband and the nursing staff.
Once we can rule out a power struggle between the husband and nursing staff, and perhaps family, then the notion of rape can be entertained, which absent of all else I found this:

So this points to it was OK between the couple, if this holds up then not rape (no charges should be filed), if there is conflicting information to this point that can not be ruled out by a power conflict, then yes it could be rape.
IMHO

The nursing staff “said”…They are all MDs there? Because the staff I’ve met who work in those facilities (when visiting relatives) have trouble administering an aspirin to the right patient let alone determining someone’s state of mind at a particular moment.

ETA, if it was a MD who said that, then I’d listen, otherwise, I’d vote to acquit.

“…the nursing home staff told her husband that his wife was no longer mentally capable of legally consenting to have sex.”

Just as a point of order I would be curious about what qualifications are required to make that diagnosis. Is it a licensed physician, the administrator, any staff caregiver? Who makes that call?

What is the time frame as to when does one have to consent? Right before the act?

What if she told him 10 years ago “if I’m ever comatose and you need some lovin’ feel free”.

As weird as it sounds, don’t think that some of us that have been married for several decades haven’t had discussions like this. We just never thought we’d have to put it in writing.

His family is going to say that even if she had no idea who he was. And I can’t imagine what kind of relationship they had before if dementia and the need for nursing home care didn’t change it.

Sorry. I don’t care how much I love my spouse, I’d never want to have sex with them if they didn’t know what the hell was going on. In my mind, whether it could be rationalized or not, that would be rape. Ick.

Notice how the statement mentions how the location supposedly doesn’t change the conditions of their relationship(although nursing homes tend to frown on random shtupping of their patients from visitors), but makes no mention of her mental condition-dementia and Alzheimer’s disease. Do you think that the nursing staff, and not a qualified medical expert, made that diagnosis?

Hence, the trial, where such things are appropriately decided.

The nursing home staff, whomever they were (nurses, doctors, aides), felt she was incapable of consent. I “assume”, always risky, that dementia was obvious to all, given her presence at the nursing home in the first place.

Having been around folks with dementia, I can’t imagine a) wanting to have sex with someone who didn’t know I was their spouse, and b) from the perspective of the wife, not knowing who was having sex with her, it would be at best odd, and at worst terrifying.

Can a person with dementia provide consent? A quick search online reveals pages on impaired mental capacity and dementia. Her particular mental capacity would vary, of course, because dementia varies, and progresses. The fact that her medical staff felt her incapable of providing consent, regardless of questions raised here of their credentials, likely means that she was.

To end where I started, at a minimum the trial seems appropriate.

Yes but my point is this is not the rape issue on trial, it is a trial of this potential ‘pissing contest’ between the husband and nursing staff, which once determined we can see if the rape charge is even warranted.

Consider what you’d have to put in writing.

It’s more than just, “My spouse is free to have sex with me if for some reason I can no longer give consent.”

  • Do you have to specify which sex acts you are ok with? Maybe the husband always wanted to have anal sex but the wife refused but hey…she’s catatonic so why the hell not?

  • Does a staffer have to watch to be sure only the allowed sex acts are performed?

  • Do you have to use birth control? (It is possible to get Alzheimer’s in your 40’s.) What happens if a pregnancy occurs?

  • Who has to clean up after? The staff?

And as I mentioned above consider if your spouse has Alzheimer’s they may have no clue who you are. To your spouse it would seem to be flat-out rape no matter what was written previously (in their mind a stranger is having sex with them and whispering that they are really married…can you say creepy?).

The whole thing is creepy as hell and it worries me how many here think this guy should be in the clear. Losing your SO to dementia/Alzheimers is horrible. Unfortunately you are going to lose the intimacy you once shared as well. Sucks but there it is.

NOTE: If she can prove she is sufficiently clear headed to give consent then no problem. Not rape.

No I didn’t, interesting choice of worlds.

I don’t know either way, I did not see it mentioned, and why I said that they power struggle between the 2 parties needs to be understood, including who made the claim of her condition and inability to consent.