When sex with your consenting spouse can become rape

It’s about two hours from Garner Iowa, where the care center is, to Des Moines, the capital of Iowa. But he would be making that round trip anyway if that was his commute to work when the legislature was in session. Do you have reason to believe that he would otherwise have stayed in Des Moines during the legislative session? How many days is the legislature in session in Iowa?

Oh, good grief.

@Hunt, is it a tort to cuddle and kiss your baby? Wouldn’t the law be the same for incapacitated adults as for babies?

Most of the legislators from our area stay in the State Capitol during the work week when they are in session instead of making the 2 hour commute each way. Our good friend is a Leg Aid and they too stay near the Capitol M-Th nights.

@CardinalFang, you yourself would define cuddling and kissing without consent as sexual assault between college students.

That’s a tough one. But Judge Fang would interrogate the tattoo artist as to whether it was safe to have a client who didn’t know what was going on. When the needles hit A, wouldn’t he thrash around and wouldn’t it be dangerous to both A and the tattoo artist? I suspect that Judge Fang would sidestep the controversy by saying the procedure wasn’t safe.

I don’t want to be overly sexist, but it’s my observation that women always want to change the hypo. Some men do it too, of course.

Well, it’s almost certainly a tort to cuddle and kiss somebody else’s baby if the parents don’t want you to, even if the baby enjoys it and there is no harm. But there is (I assume) no law on whether it’s legal to kiss your own baby, because we all assume that it’s natural and normal to kiss your baby without its consent. But it seems we don’t have agreement on what is natural and normal when it comes to sexual relations between elderly married people.

This determination WAS made on the basis of the facts in this particular case. The doctor and the care facility examined Mrs. Rayhons, whom they had been caring for 24/7 for a couple of months, and determined that sex was no longer appropriate. They may have used the wrong criteria, they may have made the wrong decision, and that’s exactly what we’re discussing here.

Some people in this thread immediately concluded that the care facility was wrong. I say, and I’ve said all along, that I don’t know whether the care facility was right or wrong, but there is a point where sex is precluded.

Another care facility is going to face the same question: a spouse, a friend or a resident will want to continue to have sex with their client, the caregivers or the client’s children will object, and the facility will have to make a decision. How should they make that decision? They consider the facts of the case, and then what? The facts aren’t enough; they also need criteria/rules/guidance.

Some people on this thread have said that the decision should be up to the spouse. But it’s not always going to be up to the spouse. At some point, the spouse is going to be overruled: a disgusting creep who insists on having sex with their husband or wife who is lying there moaning should be stopped. At what point does the spouse get overruled? Rightly or wrongly, the care facility in this case thought that point had been reached. Maybe they were right and maybe they were wrong. That’s the discussion we need to have, because care facilities need to know what to do.

Do not say that people don’t want to have sex with other people who are totally non-responsive. We know that’s not true. We know that some disgusting creeps have sex with unconscious people. Some of them videotape it.

I didn’t change the hypo. In the case you gave, I would say no tattoo because it’s dangerous. If you want to give a hypothetical where it’s painful not dangerous, do so, but don’t blame me if your hypothetical doesn’t work.

But let’s pretend that the guy is safely and painlessly restrained, so that the only issue is the pain from the needles. Then Judge Fang would balance the amount of pain versus the pre-commitment. Judge Fang would allow the tattoo if the pain wasn’t too bad or too prolonged. Judge Fang would not allow more than one tattoo session, nor would Judge Fang allow a long session. Judge Fang would instruct the artist to stop if A seemed to be experiencing a lot of distress.

Tattooing is something that guardians can consent to for their charges, correct? But we don’t currently in law have a way for guardians to consent to sex for their charges.

Perhaps a way of putting this issue is this: to what extent do we think a decision-maker faced with this issue should be governed by what the incapacitated person would have preferred? If we think the person’s preference should govern, we basically have three ways to ascertain it:

  1. What the person said in an advance directive.
  2. Lacking an advance directive, other evidence from the person’s prior statements or actions about what the preference would be, or
  3. Lacking any such evidence, a default position, most likely determined either by what most people would want, or possibly the most “conservative” position, however that may be defined.

In certain situations–such as inheritance, for example–we don’t really allow the second option. If you don’t leave a valid will, your estate will be distributed according to the laws of intestacy. For other things–like, in some places, the continuance of life support–the second option is considered.

But it may be that some people would argue that a person should not be allowed even to make an advance directive that gives blanket consent to sex with a spouse after incapacitation. Personally, I would have trouble aligning that with other things that can be covered by an advance directive.

Legal guardians of developmentally handicapped people can, I believe, consent or withhold consent for them to marry. At least, I used to know someone who had to give consent for a sibling to marry.

I still think the most important factor is the fact that on the day this supposedly happened, Mrs. Rayhons was alert enough to know that (a) she was being moved out of her room, (b) she was being moved to a room without privacy, and © that she was being moved because of animosity toward her husband. She was also articulate enough to express her displeasure about the change clearly and definitively. That’s not in the ballpark of someone unresponsive or laying there moaning or unaware of her circumstances.

It’s hard to balance the desires of the present self versus the desires of the past self. In Hunt’s hypothetical, the present self doesn’t understand tattoos and doesn’t want to feel pain, and the past self wanted the tattoo. The present self is going to get no benefit from the tattoo, now or ever. It’s odd to say that the past self should overrule the present self.

When I promise my sister to see to her grooming list, I’m thinking it really won’t matter in any positive way to her demented self, but it won’t injure that self. It gives her present self peace of mind that I will take care of her potential future self.

I don’t think any of the grooming will matter if she’s demented. But I take flowers to graves regularly because I know that was important to the folks in those graves.

For me, it’s sort of debatable whether any of those folks appreciate the flowers. I err on the side of caution. At the very least, it’s respectful of their memories.

adding: I am thinking a lot about my potentially demented sisters and sex and whether what matters most is the desires of present selves or future selves and thinking we will all have a conversation about this next get-together. I can kind of predict how different ones will respond (very different responses) and am interested to see if I’m correct)

In the interest of fairness, I’m wondering about asking my brothers, but am not sure how that would go over with their wives.

I totally agree that those are facts (or alleged facts; I’m not sure they’re all in evidence, but they might be) that should be seriously considered.

The jury is still out. I thought it would be quicker.

Does anyone know what the judge’s instructions to the jury were?

No matter what my personal feelings are I am having a hard time imagining a jury putting this particular 78 year old man in jail. They will look for every way to sidestep that result. Given the ambiguity of what he understood the doctor to be prohibiting, and given there is no direct evidence of intercourse, I think they can easily come to a not guilty verdict.

Having said that, they failed to reach a verdict today which surprises me.

HarvestMoon, I assume in this case the judge and not the jury will be deciding the sentence if the jury comes with a guilty verdict.

http://www.nolo.com/legal-encyclopedia/how-criminal-sentencing-works-faq-29149.html

Right but a guilty verdict exposes him to the possibility of jail time. Think up to 10 years. Not sure if Iowa has minimum sentencing requirements for a felony.

Well, I’ve searched and searched, and no one has reported on the judge’s instructions. I think that is going to be the key.