If you know what’s going on during the best part of sex, you probably aren’t doing it right.
There are multiple steps where it can be decided that someone is able to consent-but only the fact-finder (judge or jury) at a trial will actually decide if the person is unable to consent. Not a nurse or doctor at the nursing home, not a psychiatrist, not the police and not the DA.
I wonder whose expert opinions the court will rely on when determining whether someone can give consent?
Willing to bet it will be a nurse and/or doctor and/or psychiatrist at the nursing home.
It’s the best argument. There are certainly things she shouldn’t be allowed to do even if she wanted to, like sending money to the widow of a Nigerian minister or dancing on the roof of the nursing home, because such actions would be harmful to her and she’s unable to realize they are.
But sex isn’t normally harmful, but pleasurable. She should have sex just because she wants to for the same reason why she should play cards just because she wants to or get a feet massage just because she wants to or eat a cookie just because she wants to. Unless you demonstrate that the intercourses were harmful to her I see exactly zero reason why she should prevented from doing what she enjoys.
Or maybe you should have to let people do what they want in the privacy of their bedroom.
For some reason, you’re focusing on the husband as if we were to assume that he must be by default an abuser and the wife a victim. But are your evidences that she was in any way victimized as opposed to have the end of her life made a bit more pleasant?
Try to change your point of view : why do you want to forbid her to enjoy sex? What other pleasurable activities would you like to deny to her? As pointed out by another poster, would you allow her husband to kiss her? If they liked to play cards, would you prevent them from playing cards because she’s not competent to decide if she really wants to play cards? Would you allow her daughters to visit her, since she’s not competent to decide whether their visit would benefit her?
IOW, why the special pleading when it comes to sex?
I would be curious to know what exactly are the private and appropriate areas to have sex in this nursing home. Especially since I’ve often heard about nursing homes not simply not planning to provide such privacy, but in fact actively avoiding the existence of such private places specifically so that the residents (including those of sound mind) won’t be able to have sex (presumably because it grosses out the children and/or the staff).
I’m willing to bet there will be conflicting testimony, including a defense psychiatrist who disagrees with the prosecution. And the jury or judge will make the actual decision, based on a lot more information than anyone here has.
Sure but who has the most experience with the person in question in this case?
The nursing home staff.
So, the defense has a more difficult task.
I’m sorry but this is a big HUH?
Yes there is a spectrum of cognitive impairment in dementia (all of which may meet your standard of not “fully capable of understanding”) from forgetting where you put the keys and your neighbor’s name to, to as WhyNot explained earlier, various grades of severity, most of which include the ability to consent. Not everyone with dementia is unable to speak or express wishes, even if they go in and out of various levels of confusion and cognitive difficulty.
Indeed people with dementia, even relatively mild dementia, may lose their social appropriateness filter (and many with dementia have frontotemporal dementia, in which social inappropriateness is a very early sign, preceding memory loss and other cognitive dysfunction). If they are thinking about having sex and want to have sex they may just say it in front of whoever is there. She seems to have had lost the filter and was talking about wanting sex with her husband and his wanting sex with her in socially inappropriate ways.
*How is her expressing their mutual desire in socially inappropriate ways evidence that she needed to be forbidden and prevented from continuing to have sex with him as something that was not in her best interest? *
Interesting NPR bit from before this case.
You Czarcasm have clearly expressed that any impairment comes with a default presumption of inability to consent. And portrayed, with nothing but your imagination to go on, that this man jumped her bones, using her as a sex toy, and was not at all responsive to what she was expressing she wanted.
Moreover having declared that anything less than “fully capable of understanding” means a lack of ability to give consent, you explicitly dismiss what the individual’s past views and wishes have been from any consideration in preference to imposing a decision that eliminates her freedom to continue to have sex with her husband, as being somehow in your assessment as being in her best interest.
We of course do not have all the facts in this case but what has been presented, that the woman clearly expressed (in a socially inappropriate manner to be sure) her desire to continue to have sex with her husband (who she seemed to recognize), and was able to have conversations, argues that the staff suffered from the same default presumption that you do: dementia equals no sex, end.
How much better for those with dementia and their spouses if sexuality was instead dealt with maturely: finding out what the couple’s sex life was before dementia, as soon as possible in the course having an adult conversation with them individually about how they’d want to proceed as impairment progresses, allowing and facilitating privacy such that sexual relations were easily and comfortably possible, educating the non-impaired partner on how to be sensitive to any sign that confusion was making the experience uncomfortable or unwanted by the impaired partner and helping them deal with changes in interest (including socially inappropriate behaviors). And restricting the freedom to engage in the same desired activities that have been normative and pleasurable for years only when absolutely necessary.
Whack-a-mole not so sure. If the nursing home has no option for any residents to be able to have sex with their spouses no matter what the level of disability, then the case is easily made that they function as does Czarcasm, with a presumption that any level of dementia equals mental incapacity to consent and that “best interest” equals removal of a sex life for all in their care. If it is established that the assessment for ability to consent to sex is not individualized and experts opine that it should be then the task seems not so difficult.
This article from Britain (pdf) seems useful to this discussion. The first case study is particularly on subject. Staff felt the woman was unable to give consent but upon review the author uses the case to illustrate why such prejudgements are often wrong.
Standards to go by: Does the person recognize the partner? Is the behavior consistent with past beliefs and values? What is the risk of harms?
Read the analysis as they applied to Mrs. L. By Czarcasm’s standard they ended up facilitating rape. Did they? Given the information as presented regarding this case - a woman who recognizes her husband, expresses a strong desire to continue to have sex with him, such desire is consistent with what is known of her past beliefs and values, and who is not at risk of harm by being allowed to act on those beliefs (especially if the husband is treated respectfully as an adult and educated to be sensitive to signs of disinterest and the couple given an appropriate place to have sex), how does this case compare to that analysis?
Again, we have from the cite provided by WhyNot early on that the home had no sexual policy in place (that “sickening” stuff, yes that was how staff described the possibility of the couple having sex, just doesn’t happen) and that the assessment of “no sex for you” was made by a family physician (not a neurologist or psychiatrist) using a tool that can only state that she had dementia and that experts agree is NOT a tool that is able to assess capability to make decisions.
And apparently under specific urging by pressure from the woman’s daughters.
With luck many of us will get old. Some of us will have some period of dealing with dementia in either ourselves or our partners. I hope that we at least end up with actual professionals and not idiots like those at this home, and get a proper assessment before it is presumed that “dementia” equals no ability to make decisions and no sex.
They probably just don’t want anyone having sex on the premises just like most businesses. They can add the consent issue in there telling the court they are not equipped or prepared to discern who can and can’t have sex because of a judgement call of their mental state. Who makes that call? How would that work? How weird is that?
And what no one has answered yet is WHO CLEANS UP? Why should the staff have to clean up your mess?
Also, what happens if there is a pregnancy (not only old people are in nursing homes and this would apply to all I think)? If your wife is in a coma can you have conjugal visits?
Let’s assume you are an insanely handsome/beautiful person. As sexy as they come. So is your spouse. Just the most beautiful couple on the planet. Video of the two of you having sex would be the hottest and most watched porno in the history of the Earth.
I would not want to have to clean up your “sickening stuff” when you were done.
When it is me and my partner’s stuff then not gross. When it is yours…gross.
Akin to spit. My mouth is filled with it and I have no issues. I have no issues making out with my GF. YOUR spit though? No thanks. If you spit on the ground and tell me to clean it up I would be sickened to do so. I want no part of it.
That does not make me a prude or unaware of what people do together when they have sex or intolerant of people having sex. I just do not want to deal with your mess. anymore than you would want to deal with mine.
Yes, and?
They were allegedly talking about him taking her on outings and the possibility that they might have had sex on those outings.
But you seem to argue that nursing homes should forbid sex on premises to save staff from having to change sheets with wet spots.
Ignoring what else staff in nursing homes have to deal with that is the most … [checks forum and breathes deeply] … that is just a bit silly of a reason to decide on how adults should be allowed to interact sexually don’t you think?
It can be more than just a wet spot unless there is a rule that the guy has to cum inside her. Is there that rule?
And yeah, they get to deal with gross stuff.
If you have been a parent and had a baby then you had someone pooping in your house and not in the toilet.
If you have had a dog you have probably dealt with potty accidents in the house.
So, since you were ok with that then would you be ok with me coming in and taking a shit on your dining room carpet and having a piss in the corner?
If not why not? Clearly you have dealt with gross stuff and been ok with it. Why shouldn’t this be the same?
What, you’ve never gotten laid at a hotel, you know, a business?
I would think the housekeeping staff at a care home wouldn’t be squeamish. The idea that cleaning up random spunk would be above the limit is a bit weird. A hotel housekeeper does that.
Whack-a-mole, you’re reaching. Particularly in this case, as he put her damp panties in the garbage and a rape exam showed no trauma or fluids on her. So there was nothing to clean up.
But in the larger sense, you’re still reaching. The mess to clean up after sex is neither quantitatively more qualitatively different that the mess that needs cleaning up after every meal, every voiding, every bowel movement, every vomitus, every wound dressing change, every particularly heavy cough or nose blow …if you can’t handle someone else’s bodily fluids, don’t work as a caregiver. Sex is a part of a normal healthy life, and caregivers are there to facilitate, as much as possible, the living of a normal healthy life, not thwart it.
Some caregivers have decided that they can reduce the number of daily diaper changes by not giving people enough food and water. We throw them in jail for neglect and abuse. Why is it okay to starve a person of sex?
I don’t leave my GF behind to be cleaned off at a hotel.
Whack-a-Mole may just be whooshing (one hopes) but the attitude may very well be that which staff in many homes to some degree has.
Dealing with nursing home residents possibly having sex is effort, and beyond changing sheets. It is much easier to maintain a circumstance where having sex is “inappropriate” for anyone and to decide a priori that anyone with dementia is incapable of continuing to consent to sex. Anyone trying to have sex under those circumstances proves their mental incompetency to have sex … Joseph Heller’s catch 22 rises again!
From a staff POV better to not have to deal such messy stuff, even if the idea didn’t just sicken us.
Be all that as it may this particular case seems to be all about one or more of the daughters being extremely powerful personalities who intimidated all around them. Somehow they managed to get legal rights to decide where she would live over her husband, when Mr. Rayhorns continued to stay involved they got staff to not allow such outings, when they suspected that the couple might actually be having sex, they initiated staff to write up a plan that explicitly forbid it, and when it appeared that they had more sex anyway* the daughters insisted that police be called and that it be handled as a rape.
*Reading about the case as it goes to trial it is in fact unclear if any sex even occurred after the no sex directive, or if Mr. Rayhorns was indeed cowered. There is no forensic evidence of sex (no sperm on the panties or sheet and nothing inside her, the exam that the daughters insisted Mom be subjected to as part of Mom’s best interest to protect her from being able to have sex with her husband), the person who initially was quoted as having heard sounds of sex later recanted to stating having heard whispering. The only evidence is that a 78 year old man, confused over two hours of questioning being told about (fictional) video cameras, admitted to having sex with his life while she was in the nursing home.
This is a thought-provoking dilemma. The existence of this case doesn’t make me concerned about the law, because I see the need for laws like this. That doesn’t mean I think this guy should necessarily go to jail though.
Some of the arguments in this thread strike me as illogical, but maybe I’m missing something. If we accept that a dementia patient (with her level of severity) is competent enough to consent to sex, would we be prepared to say such a person should go to jail for raping or sexually assaulting someone else? I have a problem with assuming someone is mentally fit enough to have sex, but then not treating them same way we’d treat any other person. Either they know what they are doing or they don’t. If they can’t be held responsible for raping someone, then they aren’t competent enough to have sex.
Secondly, it seems like people are putting sexual consent on the same level as dessert decision making. Which is ridiculous to me. Yeah, she may be asked whether she wants the banana pudding or cherry jello, but unless she’s free to walk out of the nursing home and hitchhike to Disney World, she lacks the autonomy to make any real decisions for herself. The institution that is in charge of her care has a lot of power over her range of choices, because they will be held liable should shit go down. So I have no problems with them saying she can’t have sex with anyone. As Kurtis Blow said, these are the breaks.
It’s easy to judge this situation as no big deal because the guy is her husband, but if this was another patient who had jumped in bed with her, the nursing home could be sued to oblivion for not protecting her.
As others have said, why does the institution get to make this decision for her? Assume the husband is her conservator and guardian. He can literally decide whether she lives or dies in a situation. He controls the money. He literally makes every decision for her on her behalf. Yes, she cannot make valid, rational decisions. That is why the law recognizes his position to make decisions on her behalf. But when it comes to whether she consents to sex, the law (according to this prosecutor) says that nobody can make that decision for her.
Why is that? The answer seems to be because nobody knows if she would consent. Well, that is the very reason for having a guardianship. Someone who loves her and has her best interests in mind makes these decisions on a good faith basis according to what that person believes she would want.
Next it seems that some put sex in a special category because of the seriousness of it. Life or death is certainly just as if not more serious. I think that today’s heightened awareness of rape has blinded some to the point where the circumstances don’t matter. We treat this no differently than if the janitor had decided to have sex with her which is absurd in my mind.
I’d still like to get an answer to “waking up husband with blowjob” hypo. How can anyone distinguish the two?