# Rape Charges for a Elderly Husband Having Sex with His Wife with Dementia? **URL:** \ **Category:** Great Debates\ **Created:** [April 7, 2015, 5:39pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050 "2015-04-07T17:39:09Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [April 7, 2015, 8:14pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/21 "2015-04-07T20:14:44Z")
> [@faithfool](#): > > 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. “I don’t like it or want it for me” is a horrible justification for a law. I agree with **pkbites**. If they had an agreement previous to her becoming unable to consent, it’s fine. I might even go one further and say if you’re in a long-standing relationship where consent is understood, and you have a slow decline where you have a chance to say ‘don’t sex me when I’m basically checked out,’ opting out is necessary rather than opting in. In a case like a horrible accident, where they’re fine one day and the next they’re a vegetable, then no. ---
**Author:** ![prettydorky](https://avatars.discourse-cdn.com/v4/letter/p/f04885/32.png) [@prettydorky](https://boards.straightdope.com/u/prettydorky)\ **Post date:** [April 7, 2015, 8:21pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/22 "2015-04-07T20:21:06Z")
This whole thing smells like family turmoil and a little bit like money. But I’d need a good deal more information before forming a solid opinion. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 7, 2015, 8:21pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/23 "2015-04-07T20:21:08Z")
> [@kanicbird](#): > > 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. But it _was_ mentioned-the article said that she was moved into the nursing home a year before, _after_ being diagnosed with dementia and Alzheimer’s disease. Professionally diagnosed, then moved to a nursing home, then used like a sex toy. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 7, 2015, 8:21pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/24 "2015-04-07T20:21:24Z")
So if she said, “Yes I’ll have sex with you whomever you are.” then that is not consent because the staff said it wasn’t? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [April 7, 2015, 8:26pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/25 "2015-04-07T20:26:18Z")
> [@Czarcasm](#): > > But it _was_ mentioned-the article said that she was moved into the nursing home a year before, _after_ being diagnosed with dementia and Alzheimer’s disease. Professionally diagnosed, then moved to a nursing home, then used like a sex toy. I didn’t have the time to re-read it in reply to your post. However I doubt that the her being used as a sex toy was mentioned in the article. Now that is one possibly, and that goes into the nature of their relationship, which would be the determining factor in if rape should apply. ---
**Author:** ![Sunny\_Daze](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sunny_daze/32/438_2.png) [@Sunny\_Daze](https://boards.straightdope.com/u/Sunny_Daze)\ **Post date:** [April 7, 2015, 8:29pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/26 "2015-04-07T20:29:30Z")
> [@kanicbird](#): > > 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. You think this is a question of a “pissing contest”. I think it’s a legal question, with legally defined answers. The trial will be about whether the state can prove that she was able or not to give consent, legally speaking. Whether or not the staff thought her husband was a jerk is irrelevant. If the trial finds that she was legally unable to give consent, he will be found guilty of rape. The equivalent would be, distasteful as this is, if someone had taken all of her money. The staff says, she could not have consented, because she was incapable by reason of dementia, and the person says, but she really, really liked me and would have wanted me to have it. The state says, nope, it’s theft. Trial. It’s a slightly flawed premise, because a husband would generally be entitled to a wife’s money, absent a pre-nup forbidding it. But hopefully you get the idea. ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [April 7, 2015, 8:34pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/27 "2015-04-07T20:34:12Z")
Was the person who made the determination about the lady’s fitness qualified to make that determination? Who was responsible for the lady’s decision making? The husband? ---
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [April 7, 2015, 8:35pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/28 "2015-04-07T20:35:46Z")
> [@Whack-a-Mole](#): > > 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?). > > \ > > NOTE: If she can prove she is sufficiently clear headed to give consent then no problem. Not rape. Well, that seems to be the issue. How would someone prove they were sufficiently clear headed? Did Henry mount the Donna Lou whilst she was in a state of utter confusion? Well, that would be rape, of course. Did Henry have sex with Donna Lou while she was in a lucid state, maybe even at Donna Lou’s suggestion or urging? That’s not nearly as clear. If I am suffering from dementia in a nursing home, and in a state of lucidity I ask my S.O. for a little lovin’, maybe the last I will ever get…can a doctor deprive me of that right? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [April 7, 2015, 8:37pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/29 "2015-04-07T20:37:59Z")
> [@ddsun](#): > > You think this is a question of a “pissing contest”. I think it’s a legal question, with legally defined answers. The trial will be about whether the state can prove that she was able or not to give consent, legally speaking. > > Whether or not the staff thought her husband was a jerk is irrelevant. > > If the trial finds that she was legally unable to give consent, he will be found guilty of rape. > > The equivalent would be, distasteful as this is, if someone had taken all of her money. The staff says, she could not have consented, because she was incapable by reason of dementia, and the person says, but she really, really liked me and would have wanted me to have it. The state says, nope, it’s theft. Trial. It’s a slightly flawed premise, because a husband would generally be entitled to a wife’s money, absent a pre-nup forbidding it. But hopefully you get the idea. You want to look at it just criminally and the law that is fine. I don’t, I don’t believe humanity can be served by that. I have questions that goes into the nature of the motivations. Why did the staff wait till she passed away to come forward with this? If a patient in their care was being regularly raped and they knew it would not they be responsible, and also responsible for not reporting it as perhaps even a accomplice to the rape? There is something missing here and that something could have a lot of bearing on if rape actually occurred. ---
**Author:** ![Skammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skammer/32/143_2.png) [@Skammer](https://boards.straightdope.com/u/Skammer)\ **Post date:** [April 7, 2015, 8:38pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/30 "2015-04-07T20:38:25Z")
Having Alzheimer’s is not enough for us to go on - many people who suffer from it have only short episodes of dementia, between long periods of lucidity - or the other way around. Just because she was diagnosed over a year ago and needed to live in a nursing home does not necessarily indicate that she was unable to ever give consent. I’d want to see evidence that it was impossible for her to knowingly consent before I would convict the husband of rape (in the absence of her testimony). ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [April 7, 2015, 8:41pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/31 "2015-04-07T20:41:22Z")
> [@Czarcasm](#): > > Do you think that the nursing staff, and not a qualified medical expert, made that diagnosis? Do we have to think anything about whomever that was? The only info I have is inconclusive. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 7, 2015, 8:42pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/32 "2015-04-07T20:42:43Z")
> [@Whack-a-Mole](#): > > 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. So we shouldn’t be discussing whether the law is an ass in this situation? Because I’m gonna. > [@](#): > > 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. Well, IMHO, if there’s no evidence that they were estranged before she developed dementia, and she consented (to whatever extent she was able to indicate consent) at the time, I don’t have a problem with it. I hope I never develop dementia, but if I ever do, I damn sure hope my wife feels free to give me whatever good times she can, even after I’ve lost my marbles. Without any fear of legal repercussions. ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [April 7, 2015, 8:43pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/33 "2015-04-07T20:43:15Z")
From the OP link Elizabeth Edgerly, a clinical psychologist who serves as chief program officer for the nonprofit Alzheimer’s Association, said determining capacity is challenging. “Is the person capable of saying ‘no’ if they don’t want to do something? That’s one of the biggest pieces,” said Edgerly, who frequently lectures on sexuality and Alzheimer’s. **But Edgerly also noted that patients can vary day to day and said that physical closeness can be reassuring to many, noting: "For most people with dementia, even long into the disease, they take comfort in being with people who love them."** Are we absolutely required to assume that the gentleman used his wife like a sex toy? Is there any qiggle room to think otherwise? ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [April 7, 2015, 9:07pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/34 "2015-04-07T21:07:18Z")
> [@Whack-a-Mole](#): > > Consider what you’d have to put in writing. Your whole post is precisely my point. As a spouse, my wife already has the right to control my finances when I’m incapacitated. She can already make medical decisions, including the choice of when to pull the plug. My very life is in her hands by default. I’d have to revoke that consent in some way to let someone else choose when I die. And yet… she can’t have sex with me? There’s got to be some way to put in writing “My wife can have sex with me. Period. If she decides she’s into chains and gags and whips, then I’m up for it too. If I happen to die having sex with her, I can’t imagine a better way to go.” Now, you don’t have to give your spouse the same consent if you don’t want to, but I find it absurd that the law is suggesting that I couldn’t give it to my wife. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [April 7, 2015, 9:49pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/35 "2015-04-07T21:49:27Z")
Previous [articles](http://www.bloomberg.com/news/2014-12-09/rape-case-asks-if-wife-with-dementia-can-say-yes-to-her-husband.html) have reported that the daughters have made statements to investigators indicating that the mother understood that she was having sex with her husband. > [@](#): > > Brunes told a state investigator that her mother said Rayhons wanted sex one to two times daily, and that Donna once pointed at her crotch and said, “Henry likes this a lot.” Rayhons later told the investigator that his wife enjoyed sex whenever they had it. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [April 7, 2015, 10:01pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/36 "2015-04-07T22:01:34Z")
Part of this also seems to be is does such a debilitating condition legally negate a marriage. ---
**Author:** ![joyfool](https://avatars.discourse-cdn.com/v4/letter/j/df788c/32.png) [@joyfool](https://boards.straightdope.com/u/joyfool)\ **Post date:** [April 7, 2015, 10:12pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/37 "2015-04-07T22:12:28Z")
> [@bup](#): > > “I don’t like it or want it for me” is a horrible justification for a law. Was there somewhere in my post that I said it should be? > [@](#): > > I agree with **pkbites**. If they had an agreement previous to her becoming unable to consent, it’s fine. I might even go one further and say if you’re in a long-standing relationship where consent is understood, and you have a slow decline where you have a chance to say ‘don’t sex me when I’m basically checked out,’ opting out is necessary rather than opting in. > > In a case like a horrible accident, where they’re fine one day and the next they’re a vegetable, then no. My point was one that’s already been made sense… having sex with someone under those conditions says more about the person who, apparently, must go ahead at all costs (oh my God, that is so disturbing), than it does about the state of mind of the person who agreed to it in advance. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 7, 2015, 10:18pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/38 "2015-04-07T22:18:23Z")
> [@Tom\_Tildrum](#): > > Previous [articles](http://www.bloomberg.com/news/2014-12-09/rape-case-asks-if-wife-with-dementia-can-say-yes-to-her-husband.html) have reported that the daughters have made statements to investigators indicating that the mother understood that she was having sex with her husband. Yep, _that_ mother-daughter conversation certainly sounds like she is fully mentally capable. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [April 7, 2015, 10:24pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/39 "2015-04-07T22:24:21Z")
I wonder if she was competent enough to decide if she wanted to go to the day room or the gym? Have steak or chicken for dinner? Wear the blue dress or the green one? Get up or sleep another hour? If she said okay, then it’s up to some BA in Sociology to deem she’s mentally incompetent to consent? I see why Dorothy wanted out of Kansas. ---
**Author:** ![AHarris](https://avatars.discourse-cdn.com/v4/letter/a/bcef8e/32.png) [@AHarris](https://boards.straightdope.com/u/AHarris)\ **Post date:** [April 7, 2015, 11:01pm UTC](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050/40 "2015-04-07T23:01:11Z")
> [@kanicbird](#): > > Part of this also seems to be is does such a debilitating condition legally negate a marriage. It doesn’t and no one is suggesting that it does. However, marriage does not give someone the right to have sex with their partner regardless of whether or not the partner gives consent. Since the law in question considers it a crime to have sex with someone deemed incapable of giving consent (with no exception for spouses), the trial will likely hinge on whether or not the prosecution can prove that 1) sex occurred and 2) the wife was incapable of giving consent. [Previous page](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050.md?page=1) [Next page](https://boards.straightdope.com/t/rape-charges-for-a-elderly-husband-having-sex-with-his-wife-with-dementia/717050.md?page=3)