This is a perfect example of how some people take things too far. Yes, rape is bad. We all agree. But there is simply no reason to believe that this man raped his wife. I think we would all agree that if the doctor decided to have sex with this woman, it would be rape. But we are conflicted because we realize that she probably would consent to sex with her husband. Why should the law treat both scenarios exactly the same?
If a man wakes up to his wife or girlfriend giving him a blowjob, has he been sexually assaulted? After all, he did not affirmatively consent. Even if he is fine with it afterwards, it doesn’t change the fact that she acted without his consent. He doesn’t have a time machine with which to give consent prior to the act.
Also, surely the nursing home staff did things like insert an IV in her arm. That’s a battery. Are they charged with a crime for that? No, because the person acting on her behalf gave consent. What if the husband was her guardian? Can he consent to sex on her behalf?
Should we have the same standards of competency to consent to sex in the geriatric population that we have for financial or legal commitments, or that we have for minors? If so, why, the consequences of ‘bad’ decisions are not nearly the same.
Does it make a difference in your argument if you reinsert the phrase back into the conversation that caused the hubbub in the first place-“suffering from dementia and Alzheimer’s disease”? Some of the posts supporting the husband seem to completely gloss over that aspect of the case.
Maybe, just maybe, there isn’t one. Maybe he will just have to love her the way she is(emotionally, that is), remember the good times…then if he absolutely has to, use those memories for self-stimulation in the privacy of his own bedroom, where nursing staff and patients aren’t likely to walk in on him.
The basic problem is that these two people were in a long term consensual sexual relationship and there is no reason to think that if she were able the wife wouldn’t consent again.
If, say, the doctor or the janitor decided to have a “moment of privacy” with this lady then there is every reason to believe that she would not consent.
But under the law the two situations are treated identically.
Under the common law this would not be a crime at all. If society has decided that they will now prosecute sex between a husband and wife in this situation then it is up to the legislature to change the law to make it more reasonable. Maybe have one class of rape where consent is affirmatively denied and a lesser class of rape where consent was simply not affirmatively given. Then divide the latter class into subclasses where the higher crime is one where the perpetrator shouldn’t or wouldn’t have reasonably believed that she gave consent and the lesser where a reasonable person might believe she would have given consent.
Even under my system, we still have the “waking your husband up with a blowjob” problem I discussed above. I don’t ever want that to be illegal.
Well said and I’d further clarify: no reason to think that if she were LEGALLY able …
To the best of our knowledge she did consent, may have even initiated … and as I understand it, it does not matter because she was declared unable, legally, to make such affirmative decisions. Therefore her longstanding desire to have a sex life with this man suddenly became something that … poof … ceased to exist and her longstanding ability to have that pleasure is denied her.
If this was not about sex the standard would generally be what would the individual want for themselves if they were able and legally competent to make the choice. That is the standard up to and including regarding decisions regarding life and death … but regarding sex what the individual would want if able to legally opine is considered immaterial … the answer becomes “no sex for you” no matter what all involved are convinced the person would be deciding if able to legally decide.
Czarcasm, is it your understanding that an individual who has had a strong desire to have sex with another particular person and gotten pleasure from it sudden does not have that desire because they have dementia? That dementia specifically eliminates sex drives and desire? Do you think she was comatose? Should ongoing pleasures in life that individuals are capable of continuing to enjoy be withheld once someone has dementia because by definition they are no longer considered able to say they continue to want them just as much as they have for years on an ongoing basis?
To the best of our knowledge we have no idea what, if anything, she consented to in that room. We know of the rather unusual and disturbing conversation she had with her daughters before she was placed in that nursing home, and we know that he had been told not to do what he did on their property. As far as caring for the rights of patients with dementia to decide for themselves who they will have sex with and when, I will harken back to the days back when I was an nursing assistant in a couple of centers. We had patients with healthy libidos but who weren’t quite all there mentally any more, to the point that we had to keep a quarter-hour watch on them every night…and even then we would find them crawling into the beds of other unsuspecting patients. What a person with dementia wants is not often in their best interests, and is easily exploitable by others. I would say that, yes, any sexual agreement they had while they were both in their right mind is null and void once one of them isn’t fully capable of understanding the original agreement and the reasons behind it.
I think this is an important question; what kinds of physical contact/intimacy are we going to deny those who suffer from varying degrees of dementia, if we pursue the idea that they cannot consent?
BTW, the irony of noting your reason for correction was “speling” is noted.
That said, your position quite frankly disturbs me.
The clear underlaying presumption is that continuing to have sex with a spouse as had been routine is somehow likely to not be an older person’s “best interests”, best interests of the older person with dementia are served by protecting them from acts of physical love with the person they have been loving for years, in some cases for many decades … a sort of “ew” factor that you seem to have. Old people should not be doing that, wanting that, and the default is that a married older couple should just hold hands and not gross you out.
Not quite- factual consent won’t matter if a judge or jury decides that the prosecution has proven that the woman was unable to consent. The judge or jury may very well decide that the prosecution hasn’t proven this element of the crime. People seem to forget that the charges are allegations which need to be proven. It is entirely possible that the judge or jury will determine that this woman was capable of consenting- the doctor’s opinion is not the last word on that.
And here I am , bringing up another issue again- for all the talk of whether people believe that those with dementia should be denied the right to enjoy sex , and opinions that this is a bad law , I haven’t seen the other situations that the law applies to addressed. Even if I suppose that all of those opposed to the law think it would be just fine for a person to have sex with their spouse who is incapable of communicating non-consent , I haven’t seen anyone suggest how the law should be written so that mentally incapacitated people (regardless of the extent of incapacitation) can consent to sex with their spouse, but not the guy visiting the patient in the next bed. Or whether marriage should be the determining factor or is a long term relationship sufficient? And if so, how long term? No one has even mentioned the people who have never had the capacity to consent to begin with and whether they should be treated differently from those who had the capacity and lost it.
Oh and about the standard for what the individual would want- the problem with doing that is that sex is different than those other decisions. Not only am I far more likely to discuss what I want medically or financially with other people in advance, those decisions aren’t as in-the-moment as the decision about sex. I can tell you today that if I am in a permanent vegetative state on 4/16/16, I do not want to be fed by tube and the decision will be the same if I am in that state on 4/16/15 or 4/16/17. I can’t tell you today whether I will be interested in sex on 4/16/16 . I expect to be non-delusional , not hallucinating and capable of communicating my wishes on 4/16/16, so I don’t really need to know today. But how can I agree today to have sex with my husband on some future date when I may be incapable of communicating my wishes, and not consenting because I don’t even know who he is? This is not to say that this is the situation in the OP- but there are people who become incapable of comunicating their wishes and there are people who no longer recognize spouses and children and any standards will have to account for that. But I suspect there will still be cases such as this one - becasue the same disputes will happen with a different focus. Instead of a dispute over whether someone is capable of consenting, it will be a dispute over whether she is capable of communicating non-consent.
How about prosecutorial discretion? From reading the originally posted story, it is completely unclear to me whether or not something immoral occurred. In fact, seeing the initial reactions from posters to a very incomplete story tells a lot about their own personal biases to me. I can easily imagine scenarios where a person having sex with their alzheimer’s inflcited spouse would be rape and I can easily imagine the converse.
To me, this is a gray area in the law. Therefore, I guess I don’t see a need to go out of our way to craft a perfectly constructed law to deal with every possible situation as if we were writing computer code. It seems just fine with me to have the law say it is rape if it is a sexual act without consent and then rely on our various processes (including prosecutorial discretion, judicial discretion, jury trial, appeals processes, pardons, etc) to weed through the gray area cases. We should focus our efforts on making sure that part of the process works as opposed to focusing on crafting perfect laws.
Your position is clearly that once a husband or a wife has dementia (and by definition is no longer “fully capable of understanding the original agreement and the reasons behind it”) any continuation of any sexual contact between them is prohibited and would constitute rape by the “able-minded” partner. You explicitly tied it to the idea that a person with dementia is unable to understand what is in their best interests. The unavoidable implication is that older folk continuing to express their love physically is not likely in their best interest. The “best interest” default in this case is no sex no matter what they had always been doing and express they still want.
I am responding to exactly what you said.
doreen, a standard of what a reasonable person thinks the person would want and is in moments of lucidity able to express they want seems appropriate.
I don’t seem to be making my point well- a person may indeed be able to express their general desires in moments of lucidity such as “Yes, I want to continue to have a sexual relationship with my husband” , but that’s not what I’m talking about. I’m talking about the specific - you or my husband or my children or my doctor, lawyer, etc may know that in general I want to continue a sexual relationship with my husband . Generally speaking , those are my current wishes. But that doesn’t mean that I’ll be in the mood next Thursday and as long as I am capable of expressing myself I am free not to consent. If I am having delusions and I believe my husband is a stranger, as long as I can express myself I am free not to consent. He doesn’t get to ignore my protests and no one can consent for me. But a reasonable person making decisions for the "me " who cannot express my wishes doesn’t know that I believe my husband to be a stranger, nor will they know if I’m just not in the mood, because I am unable to express my wishes regarding the specific event. If I could express my wishes, I could withhold consent on my own.
To some extent ( as I 've said before ) it seems like there are two different pictures in people's heads- some people are thinking of the severly impaired and therefore this must be rape, while others think only of the mildly impaired and think it horrific that they would be denied a sexual relationship. Some people see it as a bad law ( although probably every state has some variation) and don't realize that it's not a black and white situation where all people with dementia fall into the same category and are either all capable of consenting to sex or all incapable of consenting. Because **LonghornDave** is correct- you can't construct a law that will cover every situation pefectly. There's way too much gray area (see the questions in my previous post- do you ever want a severely impaired dementia patient to be legally capable of consenting to a stranger? What about someone who has been severely intellectually impaired since birth?) The prosecutor could have decided that here wasn't enough evidence to prosecute , but that didn't happen. The judge could havve decided to dismiss the charges, but that didn't happen.That doesn't mean she couldn't consent- but it does suggest that there is at least a question. ( and of course, the jury is free to decide that she was capable and did consent- that doctor's opinion is just that, an opinion.
Doreen the response is an answer to how write the law. By that standard. Of course someone can still be raped, forced into sex over objections. But there is no reason to presume that a spouse will suddenly force him or herself upon an unwilling partner when such has not been the relationship before.
Czarcasm I do indeed know that all elderly are not demented. And I know that an elderly person who wants to continue to physically love his or her long term partner does not automatically not want that because they have developed cognitive impairment. You seem to believe that a continued sexual life with a long term committed partner is something to protect those elderly with cognitive impairment from as something that is not in their best interest no matter how much they have always desired such and currently express such a desire.
I’m not talking about people being forced into sex over objections- I’m talking about people who are incapable of expressing any objection and the only presumption I am making is that most people don’t agree to sex every single time their partner is in the mod for it. If someone can’t object , no one can know if they do object. I’m going to ask you directly exactly how you think the law should read. Should it eliminate any provision stating that a person might be incapable of consent due to mental or physical limitations? Realize that this means that a dementia patient (or a person with an IQ of 40 or a comatose person) who doesn’t actually object will be assumed to be consenting.Even if the reason they aren’t objecting is because they can’t express their objection. Should it only exempt spouses, so that a person might be capable of consenting to a spouse but not to anyone else? What about long term unmarried partners? And where should the division be between long-term and short term? Or should capacity to consent perhaps be decided on a case-by-case basis, which is the case right now. Because there is no law anywhere that says Alzheimer’s patients can’t consent or that people with dementia can’t consent and I can’t figure out what it is you think the law should say. What these laws say (and it’s not only this state that has such a law) is that some people are incapable of consent - and whether a particular person is incapable is determined on a case by case basis.
There's no reason to talk about standards and what a " reasonable person thinks the person would want and is in moments of lucidity able to express they want seems appropriate" if you are talking about a person who is mentally capable of consent. By even mentioning that you are implicitly agreeing that there are indeed people who are unable to consent. So in my understanding of your position, if a person is incapable of consent their spouse (or maybe anyone) should be able to assume their consent based on what a reasonable person would think they wanted and a lack of expressed objection- even if *from the perspective of the incapacitated person* a stranger climbed into their bed and began having sex with them and the incapacitated person is unable or afraid to express any objection. I find it very hard to imagine how that scenario could possibly be either what the person wanted or in his or her best interests and I don't think you can, either.
Still trying to downplay the situation, I see. “Cognitive impairment” sounds like she might have a bit of trouble at times understanding an item or two…but I believe the diagnosis was “dementia and Alzheimer’s disease”. Also part of the problem with some dementia patients that I’ve seen and worked with in the past isn’t that you can’t get their consent to have sex-it’s that they are all too willing to talk about it(again, I refer back to the conversation she had with her daughters about how her husband liked her vagina) and even have it at the most inappropriate times and the most inappropriate places, like behind a curtain in an unlocked room in a nursing home for instance. Now if it comes out in the trial that she was known to willingly both talk about and engage sex at inappropriate times and in inappropriate places with her husband before these diseases took hold, I might change my mind.
But the people “diagnosing” inability to give consent were regular staff.
And, unless I missed it in this thread (entirely possible), the law in its infinite wisdom failed to mention who was authorized to make the call about inability to give consent.
This is clearly a hill several of us on opposite sides are prepared to die on.
I’ll only say, before I die, that it strikes me as more a tragedy to deny the feeling of love and acceptance (and straight up dopamine) that sex delivers to a dementia patient, than to protect established sex partners from sex, who may or may not know what’s going on.
