There is evidence that in societies where there is no such thing as marital rape, the majority of men have sex with their wives when the wives don’t want to have sex, because they can.
But if you’re quibbling about whether it’s a majority of men would have sex with women who don’t want to have sex, if they could get away with it, or it’s only a substantial minority, you’ve already lost the discussion. Your original claim was that there was “an extremely remote risk” that a guy in a position to have sex with his comatose wife would do it. I say the risk is not “extremely remote” that a man with an impaired spouse would have sex with her either when she was clearly not liking it, or when she was so impaired that she had no idea what was going on, if we allow spouses to decide without let or hindrance. If we let them, there will be guys who believe that she is his wife and he has the right to have sex with her, even though she in her dementia thinks he is a stranger raping her.
In the Rayhons case, the daughters brought their concerns to the facility. The doctor who examined Mrs. Rayhons, and the facility director, determined that in her condition, she couldn’t consent to sex. Eventually it came to a trial. If I had been on the jury, I probably would have acquitted, even though I would have believed that it was jury nullification.
But from that, I certainly don’t want to draw the conclusion that it is never proper for doctors and care facilities to determine whether their charges are able to have sex. Rather, I think we should realize what happened here. The doctor and the care facility used their best judgment, as I think they do in a lot of cases, to see whether a resident who was having sex was being abused. They made what they thought was an honest appraisal in good faith. And in this particular case, they used the wrong rules.
It’s understandable, at least to me, that the care facility would think that consent at the time is required for sex. This is not some bizarre notion; this is the common understanding. If we want the next care facility to make a better decision, we need to give them better rules. Instead of using the cognitive capacity test they used, the caregivers should have examined the public interactions between husband and wife, and how Mrs. Rayhons seem to react at times when her husband was affectionate with her. If they had discovered, as they did not, that she didn’t recognize her husband and regarded him as a stranger, or if she seemed, as she did not, upset by him, then they could have made a correct decision that sex between them was no longer a possibility.
Let’s not throw the baby out with the bathwater here. Sex in nursing homes is common, and abusive sex, often initiated by impaired residents, is not uncommon. The nursing homes still need to try to prevent the abuse. They need to protect their vulnerable residents.