The Volokh Conspiracy
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A jury found a longtime Iowa state lawmaker [Henry Rayhons] not guilty of sexually abusing his wife who suffered from dementia, in an unusual case that centered on when a person is no longer mentally capable of consenting to sex….
He was accused of having sex with her at a nursing home on May 23 after being told by a doctor that she was no longer capable of consenting due to dementia caused by Alzheimer's disease. She died in August.
So Mr. Rayhons has been acquitted, though the prosecution has had one important effect: He had been a state legislator for 18 years and was running from reelection but withdrew from the race "shortly before he was charged last year."
In any event, since this is a general not guilty verdict, it's not clear whether the jury concluded that (1) the prosecution hadn't proved beyond a reasonable doubt that the couple had sex on the night in question, or that (2) the prosecution hadn't proved beyond a reasonable doubt that the wife was unable to meaningfully consent. But the latter question strikes me as extremely interesting. Here are thoughts about it, based on what I wrote about it last year, when the charges were filed:
A. Bryan Gruley (Bloomberg) had a long and detailed story on the prosecution. Here's a short excerpt:
The Iowa Attorney General's office says [Henry] Rayhons had intercourse with his wife when she lacked the mental capacity to consent because she had Alzheimer's. She died on Aug. 8, four days short of her 79th birthday, of complications from the disease. One week later, Rayhons, 78, was arrested. He pleaded not guilty….
By many accounts, Henry and Donna Rayhons were deeply in love. Both their families embraced their marriage. The case has produced no evidence thus far that the couple's love faded, that Donna failed to recognize her husband or that she asked that he not touch her, said Rayhons' son Dale Rayhons, a paramedic and the family's unofficial spokesman.
Based on evidence generated so far, state prosecutors are likely to portray Rayhons as a sex-hungry man who took advantage of a sweet, confused woman who didn't know what month it was, forgot how to eat a hamburger and lost track of her room.
A recent Des Moines Register (Tony Leys) article adds:
Assistant Attorney General Tyler Buller told jurors in his opening statement that Donna Rayhons' Alzheimer's disease had worsened dramatically in the months before last May's incident. She washed her hands in dirty toilet water, forgot how to eat a hamburger and thought her longtime first husband, Slim, was still alive, the prosecutor said.
And from another Register article:
Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a "primal response," not a conscious decision to reciprocate.
Defense lawyer Joel Yunek pressed the doctor on the matter. "If the testimony is that Donna is happy to see Henry—hugs, smiles, they hold hands, they talk—would that indicate that she is in fact capable at that point of understanding the affection with Henry?" Yunek asked.
"No," Brady answered. He likened the situation to the instinctive response of a baby to affection shown by a mother….
Brady testified Monday that Donna Rayhons had declined rapidly in the months before the incident last May 23. He said she had been diagnosed with Alzheimer's based on several tests. One was a standard cognitive test, in which patients are asked simple questions, such as what day it is or whether they can repeat back three words that are spoken to them. By last May, Brady said, Donna Rayhons scored a zero on the test. Any score below eight signifies severe impairment, he said.
B. The question of how to deal with sex by those who aren't mentally competent is quite complex; it also arises, of course, with regard to those who are mentally disabled all their lives (see, e.g., this post 10 years ago about an interesting Ninth Circuit decision on this and this follow-up). But I think, in cases like the Rayhons case, the key is to consider the nature of the parties' past relationship, something Iowa law does to some extent but not enough.
It's shocking to me that, until several decades ago, a husband's forcing his wife to have sex wasn't generally considered rape in the United States. (It still might not be, at least in some situations and at least as of 2010, in South Carolina.) It seems to me quite obvious that spouses are entitled to say "no."
At the same time, it seems to me equally obvious that we must consider the parties' past and unrevoked consent as relevant in some situations where there's neither a "no" or a "yes." If A starts caressing B's genitals while B is sleeping, that's generally a serious crime. But if A and B are sexually involved, it seems to me it shouldn't be a crime at all—especially if this has happened before and both parties were quite happy about it—unless B wakes up and says no, or has indicated lack of consent to such behavior in the past.
This is just a reflection of the fact that "consent," like much in life, can be implied and long-lasting and not just express and short-term. If we're good friends and you keep letting me borrow something, that may be evidence of consent to borrow it even when I'm not around to expressly say, "Yes, you can borrow it again." That immediate consent is impossible, because you're absent, doesn't mean that there is no consent. Sex is not identical, of course, to borrowing gardening equipment, but in this respect it strikes me as similar: Even when someone isn't able to immediately consent, it's sometimes (though not always) reasonable to determine whether they would have consented by looking to past practice among the parties.
And this is especially so, I think, when the incapacity is permanent or at least long-lasting. I don't think the law should require lovers or spouses to wake each other up before touching each other's genitals, even when past practice suggests this is consensual. But at least such a requirement would only slightly interfere with people's lives.
If the law criminalizes sex among lovers altogether once one of them has become mentally incapacitated, however warm their relationship was beforehand, that's a lifetime constraint. And it's not just a constraint once the incapacitation sets in. It's a burden even on people who are not yet incapacitated but who know they are getting there, and who are upset that for many years to come they would be unable to give this sort of pleasure to their life partners—or to get this pleasure from them. If you were facing such a mental decline, would you want to know that the law will "protect" you from your beloved husband or wife this way?
C. Interestingly, Iowa law takes this into account in some measure, treating spouses differently from others, though not enough for Mr. Rayhons (or for the hypothetical sleeping couple), and not in a way that covers long-term lovers who aren't married. Rayhons was charged with third-degree sexual abuse:
A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:
1. The act is done by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person.
2. The act is between persons who are not at the time cohabiting as husband and wife and if any of the following are true:
a. The other person is suffering from a mental defect or incapacity which precludes giving consent.
b. The other person is twelve or thirteen years of age….
c. The other person is fourteen or fifteen years of age and … [t]he person is four or more years older than the other person….
4. The act is performed while the other person is mentally incapacitated, physically incapacitated, or physically helpless.
[From the definitions section:]
1. "Mentally incapacitated" means that a person is temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance.
2. "Physically helpless" means that a person is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited.
3. "Physically incapacitated" means that a person has a bodily impairment or handicap that substantially limits the person's ability to resist or flee.
Sex with a permanently mentally incompetent lover is barred under Subdivision 2.a, at least under the prosecutor's interpretation, unless the lover is both a spouse and cohabiting. I take it that the prosecutor's theory in the Rayhons case is that the spouses were no longer cohabiting, because the wife was in a nursing home—but that strikes me as a hard-to-justify distinction, though one that the statute does seem to draw. And, to turn to my hypothetical, sexual touching of a sleeping lover is criminalized under Subdivision 4, which lacks a spouse limitation.
Of course, often the law doesn't cause these problems, because the allegedly injured party doesn't complain (spouses who get caressed while they're sleeping probably won't call the police), because other parties who know don't complain (the children of parents who are having sex even though one parent has Alzheimer's probably won't call the police, either), or because prosecutors will exercise their discretion not to prosecute. But sometimes third parties might learn of the incident—caretakers, housekeepers, or, as seems to have happened in this instance, children of one party from a former marriage—and be upset enough to complain, and a prosecutor might indeed go forward with the case. The law should be crafted to preclude that, I think, as Iowa law does to some extent but not sufficiently.
D. For an interesting take on this from a few years ago, see this Slate article by Daniel Engber.