“If a person with Alzheimers has sex with husband #2 in the belief that she’s having sex with husband #1, and that’s OK, why is it not OK for her to have sex with the orderly in the belief that she’s having sex with husband #1?”
Oh good lord. I cannot believe you don’t see the distinction between a husband (or other long-term relationship) and the orderly.
The same way it’s appropriate for the husband to give consent to various medical tests / procedures, etc. and it’s not appropriate for the orderly to do so.
I’m with Consolation. You seem to have a very negative view of sex when it comes to consent – that it’s never really desired by anyone unless there is a videotaped consent for everyone to see. I’m going to work under the assumption that unless there are charges of physical abuse or somesuch, a husband can indeed have relations with his wife with Alzheimer’s. My MIL has Alzheimer’s and my FIL is caring for her and I would find the notion that any physical touch that he initiates to be “rape” absolutely abhorrent in the context of their 50 plus year marriage.
I don’t have to borrow trouble. Trouble is already here. There are people with dementia, there are going to be a lot more people with dementia, and not every spouse has their spouse’s best interests at heart.
They can’t if they already have dementia.
We need to decide what the default is. Apparently, you believe that the default should be that the healthy spouse gets to decide for the spouse with dementia. I’ll point out that this is not the way the law reads right now, so if you think that the healthy spouse should decide, it will need a change in the law. Again, this is not borrowing trouble. Trouble is right here already.
"Apparently, you believe that the default should be that the healthy spouse gets to decide for the spouse with dementia.
The healthy spouse pretty much gets to decide everything for the spouse with dementia – medical decisions, lifestyle / care decisions, etc. In the absence of evidence of physical abuse or in the absence of a document from the spouse indicating different desires (e.g., a living will stating specific preferences), that’s how it goes.
Feel free to come up with and notarize a document saying that if (heaven forbid) you develop Alz / dementia, you don’t consent to sex with your husband. I’m not, as I am going to trust that my husband is going to look out for my best interests. If I don’t think he is, then it’s on me to get someone else to be medical power of attorney or otherwise make my wishes known. I’m ok with my spouse seeking physical comfort from me. It’s not remotely “rape” and it’s not remotely comparable to the orderly-feeling-me-up or whatever.
Because care facilities, medical professionals and police need to know what the rules are so they can follow them. This care facility, as far as we know, said that Mrs. Rayhons was no longer able to consent to sex in the belief that they were doing the best thing for her. If we conclude they were wrong, then care facilities need to change the way they evaluate their residents, and doctors need to change the way they evaluate their patients.
Moreover, having sex with a person who is mentally incapacitated, even if that person is your spouse, is currently illegal. If we don’t like that law in the case of spouses with dementia, then we should change it.
Five to eight percent of people over 60 have dementia. Our population is aging, so we are going to have more and more people with dementia, and we need to figure out the right way to handle their sexual desires and the desires of their healthy spouses.
There’s no support for this statement. Before anyone could conclude it is illegal for someone to have sex with their spouse who is impaired by dementia, there would have to be a specific statute on point outlawing the behavior; the statute would have to be interpreted to apply to the particular situation; any number of defenses (including good faith) would have to be considered, and, if the conclusion after that extensive analysis was that the behavior was illegal under state law, the federal constitutional right to marital privacy under Griswold v Connecticut would have to be considered. The off-the-cuff conclusion as to what is or isn’t legal, with no legal analysis, should be given no weight in this discussion.
So are you then saying that we shouldn’t worry, and we should expect no more cases of this type? Nobody else is going to try to get a husband arrested for having sex with his mentally incapacitated wife, who, according to the complaint, can’t or didn’t consent?
Right now it’s clear that in black letter law it’s illegal to have sex with someone who is mentally incapacitated. You may be correct that nobody else is going to apply that to a spouse of a person with dementia, but I think this is only the first of many cases. There is no way in law, right now, to issue a blanket future permission for sex. Marital rape is illegal in every state.
Again I ask: why? Why not try just minding our own business and not legislating or poking our noses into people’s marital relations unless there is evidence that someone is being actually hurt? Why not let them handle their OWN sexual desires?
Something wrong happened in this case. Either the care facility wrongly prohibited the Rayhons from having sex, or Mr. Rayhons wrongly had sex with someone who couldn’t consent because of incapacity. (Or Mr. Rayhons didn’t do it, but that’s not interesting.)
If we conclude that the care facility acted wrongly, we shouldn’t mind our business. We should instead make it clear to such facilities, and to medical professionals, that they need to stop prohibiting people with severe dementia from having sex with their spouses, and instead encourage their spouses to have sex with them if the healthy spouse is interested and the demented spouse appears to be interested.
If, on the other hand, we conclude that the care facility was right, we still shouldn’t mind our business. We should publicize the level of disability that means someone is too disabled for sex, so that more people don’t get arrested.
We can’t let the person with dementia handle their own sexual desires, because the person with dementia has dementia.
“This care facility, as far as we know, said that Mrs. Rayhons was no longer able to consent to sex in the belief that they were doing the best thing for her.”
This lady couldn’t consent to being fed meals, or having her private areas washed, or taking medicine, or who sits by her bedside, or pretty much anything. But somehow you don’t object to her loved ones and medical professionals doing those things.
There had better be support for this statement. In a lot of states, the laws for rape apply equally to spouses and non-spouses. Do you want to say that it would be perfectly legal for an orderly to have sex with Mrs. Rayhons, so long as she didn’t seem to object, perhaps because in her confused mind she thought the orderly was Mr. Rayhons or her first husband or her high school boyfriend? If you think that the orderly should be prosecuted for rape, but Mr. Rayhons should not be prosecuted for rape for doing the same thing, then you need to change the law, because right now the law treats the two of them identically in many states.
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In a lot of states, the laws for rape apply equally to spouses and non-spouses.
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I think we all can agree that any woman (married or unmarried) who says “no” to sex, but the man continues, becomes the victim of rape.
However, there are some differences when dealing with sexual “touch”. Some guy who touched me in a private area w/o my permission should be arrested for sexual assault. But to think that a husband has to say “mother may I,” every time he first touches his wife, that is crazy.
I can imagine calling the police to report that some guy touched me…and the guy would likely be arrested. But, if I were to call the police and say, “I woke up this morning and my H had his hand on my fanny, and he didn’t ask me first, so arrest him.” I don’t think he’d be arrested…or at least he wouldn’t be found guilty.
In marriage there is kind of an implied consent until a “no” is given.
@“Cardinal Fang” I would hope that prosecutors would use common sense when deciding whether to press charges or not. Hopefully this case will be used as an example when not to prosecute.
"In a lot of states, the laws for rape apply equally to spouses and non-spouses. "
@@. I don’t think so. My husband can grab me when I’m sleeping and it’s not sexual assault the way it would be if some stranger climbed in my window and grabbed me when I was sleeping. You really have some major don’t-touch-me-even-if-we-are-married hang ups. I’m not saying a husband couldn’t rape a wife, but please. The lines are different between a man / wife and a stranger / wife, which is why equating this case to an orderly having sex with this lady is just ludicrous,
"Do you want to say that it would be perfectly legal for an orderly to have sex with Mrs. Rayhons, so long as she didn’t seem to object, perhaps because in her confused mind she thought the orderly was Mr. Rayhons or her first husband or her high school boyfriend? "
No one on this thread has said this, or wants to say this, or supports the idea that it’s ok for the orderly to have sex with this lady. Clue - the orderly isn’t someone where there is a preexisting relationship.
It’s reasonable to assume the lady would consent to sex with her husband. It’s not reasonable to assume the lady would consent to sex with a random orderly. This is a horrible case and it feels motivated by the daughters’ anger / resentment of the second husband.
Look at the Illinois criminal code as regards to rape (it’s called sexual assault in Illinois) and show me the part that says that spouses are treated differently than non-spouses. You can’t, because the law doesn’t distinguish.
If you want it to be the case that a husband is allowed to have sex with his wife, when someone else would not be able to have sex with her because she is now deemed permanently unable to consent to sex, then you should want the law to be changed to allow that.
You’re going to say, “But Fang, prosecutors don’t prosecute husbands.”
And I’m going to point at the Rayhons trial and say, “Yes they do prosecute husbands.” And if you don’t want them to prosecute husbands who have sex with wives who are incapable of giving consent ever again, then you should make it legal for husbands to have sex with wives who are incapable of giving consent ever again.
In all fairness to the daughters, both they and the facility staff testified that the daughters had nothing to do with the reporting to the authorities. The facility believed they had the legal obligation to report once the roommate complained, since the determination of the doctor had already been discussed with Mr. Rayhons.
In well run facilities with professional staff you will often see a close bond develop between Alzheimer’s patients and their caregivers. They are very childlike and can be very endearing, so often caregivers are very protective of them. It is very clear to me that either the staff did not like Mr. Rayhons or did not trust him. And only they and the daughters might know the reasons behind that dislike or distrust. Most facility staff welcome family members with open arms and appreciate the assistance family members offer. This does not appear to be the case with Mr. Rayhons.
I think the issue really boils down to whether one thinks the medical director’s determination should simply have been ignored. And whether the state should have followed through with charges once the facility reported.
This jury has some leeway. Given the facts in this case, I think it is entirely plausible that they could find that Mr. Rayhons thought the doctor’s determination only applied to actual sexual intercourse. There is in fact no evidence of actual intercourse - just the evidence found on the quilt, linens and panties.
I am not a lawyer, but I have to deal with one specific section of the U.S.C. which sounds like “black letter law,” yet it has been very heavily interpreted by the courts to the point that now they might have to cave in to the industry’s pressure and backpedal a bit. So, I’m saying that criminal code is not a 0 or 1 test; just like any statute, it is open to interpretation by the courts based on prior courts’ decisions, common sense, public policy implications, etc. And common sense here says what Pizzagirl wrote in her post: yes, it applies to spouses, but the threshold for showing battery and assault by a spouse (vs a stranger) would be a bit higher. You omitted that part from the quotation.
“Look at the Illinois criminal code as regards to rape (it’s called sexual assault in Illinois) and show me the part that says that spouses are treated differently than non-spouses. You can’t, because the law doesn’t distinguish.”
Really? So I can sue my husband for assault if he playfully grabs a body part as I step out of the shower or get dressed/undressed? And I can expect the police and court system to take it as seriously as a stranger groping me? Get real.
It’s probably true that this is technically illegal, but I predict that we will see, with the result of the particular case, that it is not quite as illegal as it may seem.
I agree that there should be a default rule. One approach would be to consider, based on past statements and activities, whether this person would have likely consented to continuing sexual activity after incapacitation. I’m not nuts about this, because it’s a slippery slope and I wouldn’t like it to be applied to a lot of situations. So it would be better if the issue could be resolved with an advance directive.
Is there anybody who wants to argue that a person shouldn’t be allowed to sign an effective advance directive giving future consent of this kind?
As others have noted, kissing your comatose relative is also, technically, illegal. Good luck enforcing that law against a spouse.