A very interesting legal case involving Sex and Dementia.

In an Iowa courtroom, an astonishing case of sex and Alzheimer’s - The Washington Post

They started flirting in choir, the vivacious retiree and the grandfatherly politician, both single after the deaths of their long-time spouses. Less than two years later, they were married in the church where they met, surrounded by a gaggle of children and grandchildren and hundreds of guests dancing the polka. It was an unexpected second chance at love for Donna Lou Young and Henry Rayhons, both past 70 at the time of their wedding.

“They were two good people who were good together,” the couple’s pastor recalled.

After a four-year battle with Alzheimer’s, Donna Lou Rayhons died in a nursing home in August, just four days shy of her 79th birthday. A week later, Henry Rayhons was arrested and charged with sexual abuse. State prosecutors accused him of having sex with his wife while she was incapacitated by dementia.

http://www.debatepolitics.com/law-and-order/221189-dementia-and-spousal-rape.html

Already a thread going.

The daughter (from the wife's first marriage) was feuding with the care center, the rest of the family and the husband. She's at the heart of this. A dick move.

This is kind of an interesting situation.

On the one hand, there has to be some presumption of consent within a marriage, or every married couple in the country would be guilty of rape.

On the other hand though, I can definitely see a situation where a person with Alzheimer's would consent to sex, but they wouldn't have if they were in their right mind.

My great grandma died of Alzheimer's, and for the last couple years of her life, she was convinced that my grandfather was her husband. She'd obviously never consent to sex with her own son, but if she was convinced it was her husband she might.

Obviously this case isn't the same, because it actually was her husband, but it still kind of illustrates the point.

molten_dragon said:

This is kind of an interesting situation.

On the one hand, there has to be some presumption of consent within a marriage, or every married couple in the country would be guilty of rape.

On the other hand though, I can definitely see a situation where a person with Alzheimer's would consent to sex, but they wouldn't have if they were in their right mind.

My great grandma died of Alzheimer's, and for the last couple years of her life, she was convinced that my grandfather was her husband. She'd obviously never consent to sex with her own son, but if she was convinced it was her husband she might.

Obviously this case isn't the same, because it actually was her husband, but it still kind of illustrates the point.

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What? No. There is not a presumption of consent, and lack of that doesn't mean everyone rapes their spouse. Wth?

Deuce said:

What? No. There is not a presumption of consent, and lack of that doesn't mean everyone rapes their spouse. Wth?

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So you think that every time a married couple has sex, the husband asks the wife if she's okay with it first?

No, in many cases, he assumes she's willing, because she's been willing for years, and tonight probably isn't the night she's going to decide that suddenly it's rape.

Just because there's a presumption of consent from the outset doesn't mean she can't say no. It just means that she doesn't have to say yes.

molten_dragon said:

So you think that every time a married couple has sex, the husband asks the wife if she's okay with it first?

No, in many cases, he assumes she's willing, because she's been willing for years, and tonight probably isn't the night she's going to decide that suddenly it's rape.

Just because there's a presumption of consent from the outset doesn't mean she can't say no. It just means that she doesn't have to say yes.

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Uh, no, he doesn't.

There is no need to assume she is willing, because if she is willingly having sex, she will actively participate.

So if she is conscious, he doesn't have to assume anything. If she is not conscious, he better have planned that scenario in advance with her consent.

There is no presumption of consent in marriage. You never have the right to just assume you're allowed to have sex with someone no matter how long you've been with them. And if they actually want to have sex with you, you don't have to assume anything -- they'll be participating.

These are the same rules that guide sexual consent in any scenario. A verbal "yes" is never required for consent to be established, either by law or on a logical level. A sign of willingness, such as enthusiastic and freely offered participation, will suffice.

The rules are no different in a marriage than they are anywhere else.

molten_dragon said:

So you think that every time a married couple has sex, the husband asks the wife if she's okay with it first?

No, in many cases, he assumes she's willing, because she's been willing for years, and tonight probably isn't the night she's going to decide that suddenly it's rape.

Just because there's a presumption of consent from the outset doesn't mean she can't say no. It just means that she doesn't have to say yes.

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Consent doesn't have to be verbal.

You've never had sex, have you?

Deuce said:

You've never had sex, have you?

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Well, I've posted photos of my daughter on here, so what do you think?

You aren't very bright are you?

SmokeAndMirrors said:

There is no need to assume she is willing, because if she is willingly having sex, she will actively participate.

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You think there aren't any women who just lay there and do nothing? Or is that still somehow 'active participation' by your standards.

Let me propose a couple hypotheticals for you.

A man and a woman are in bed together. He starts touching her with the intention of having sex with her. Since she doesn't tell him to stop, he figures he's good to go, and continues. They have sex, but she just lies there, never resisting him, but never actively participating either.

In the first case, the woman is a stranger he picked up from a bar. She didn't really want to have sex, but was too scared to tell him to stop once he started, because he was much bigger than her.

In the second, she's his wife. She didn't really want to have sex, but figured it would be over quick enough and it would make him happy, so just went along.

In both cases, there's no verbal consent or active participation. But do you think the two cases would be looked at the same way if an accusation of rape were made? Because I don't at all.

Actually, the best example might be if the woman is really drunk. If you have sex with a stranger who's three sheets to the wind, regardless of her level of active participation, you would have to be at least somewhat concerned if she accused you of rape.

If you have sex with your wife when she's three sheets to the wind, unless she's actively resisting and you ignore it (or there's some prior history of domestic violence or something), then a claim of rape isn't going to stick.

The rules are different for a married couple. Maybe not the written law, but the way it's interpreted certainly.

molten_dragon said:

You think there aren't any women who just lay there and do nothing? Or is that still somehow 'active participation' by your standards.

Let me propose a couple hypotheticals for you.

A man and a woman are in bed together. He starts touching her with the intention of having sex with her. Since she doesn't tell him to stop, he figures he's good to go, and continues. They have sex, but she just lies there, never resisting him, but never actively participating either.

In the first case, the woman is a stranger he picked up from a bar. She didn't really want to have sex, but was too scared to tell him to stop once he started, because he was much bigger than her.

In the second, she's his wife. She didn't really want to have sex, but figured it would be over quick enough and it would make him happy, so just went along.

In both cases, there's no verbal consent or active participation. But do you think the two cases would be looked at the same way if an accusation of rape were made? Because I don't at all.

Actually, the best example might be if the woman is really drunk. If you have sex with a stranger who's three sheets to the wind, regardless of her level of active participation, you would have to be at least somewhat concerned if she accused you of rape.

If you have sex with your wife when she's three sheets to the wind, unless she's actively resisting and you ignore it (or there's some prior history of domestic violence or something), then a claim of rape isn't going to stick.

The rules are different for a married couple. Maybe not the written law, but the way it's interpreted certainly.

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I have no patience for people who try to make consent sound complicated, invariably using it as an excuse for various kinds of rape.

If I were that guy, I'd have a damn hard time getting a boner with a woman who's playing dead, given that I'm not a necrophiliac. I'd probably be more concerned with finding out what's wrong, or at least asking if this is what she wants to be doing, than with just getting my dick wet.

Especially with my wife, who I supposedly love and have an interest in sexually pleasing. I mean, I've had occasions of at least starting having sex more to please him, but I've never been so dejected about it that I couldn't even be fussed to do anything. I don't know what kind of person wouldn't see that as concerning, but I know it's not anyone I would want to be with. Jesus, seriously...

In the pick-up situation, I'd also also be checking for signs that she's OD'ing on something. But here's a question for ya: why the hell would the picked-up woman be so scared of you in the first place? What did you do to intimidate her so much? This is 2015. Women know they don't have to have sex, despite the fact that most men are bigger than most women, and we've had lots of practice saying no. So what'd you do to her?

Incidentally, I know lots of guys who have had situations like this, both with established partners and new ones, and done exactly as I would. It's called decency, and lots of men totally have it.

SmokeAndMirrors said:

I have no patience for people who try to make consent sound complicated, invariably using it as an excuse for various kinds of rape.

If I were that guy, I'd have a damn hard time getting a boner with a woman who's playing dead, given that I'm not a necrophiliac. I'd probably be more concerned with finding out what's wrong, or at least asking if this is what she wants to be doing, than with just getting my dick wet.

Especially with my wife, who I supposedly love and have an interest in sexually pleasing. I mean, I've had occasions of at least starting having sex more to please him, but I've never been so dejected about it that I couldn't even be fussed to do anything. I don't know what kind of person wouldn't see that as concerning, but I know it's not anyone I would want to be with. Jesus, seriously...

In the pick-up situation, I'd also also be checking for signs that she's OD'ing on something. But here's a question for ya: why the hell would the picked-up woman be so scared of you in the first place? What did you do to intimidate her so much? This is 2015. Women know they don't have to have sex, despite the fact that most men are bigger than most women, and we've had lots of practice saying no. So what'd you do to her?

Incidentally, I know lots of guys who have had situations like this, both with established partners and new ones, and done exactly as I would. It's called decency, and lots of men totally have it.

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I notice that you avoided my actual point entirely.

molten_dragon said:

Well, I've posted photos of my daughter on here, so what do you think?

You aren't very bright are you?

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Ok then.

Do you verbalize consent every time you have sex?
"I, (INSERT NAME, HEREBY CONSENT TO THE FOLLOWING SEXUAL ACTIVITIES:"

No. You don't, do you?

So, when you do have sex, did you ever find yourself questioning whether your partner was willing? Why or why not?

molten_dragon said:

I notice that you avoided my actual point entirely.

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Ok.

Given my lack of contezxt, I cannot draw a single conclusion. But I can conclude they are an asshole at best, and a sexual offender at worst.

Either way, no self-respecting woman should involve herself with such a man.

SmokeAndMirrors said:

Uh, no, he doesn't.

There is no need to assume she is willing, because if she is willingly having sex, she will actively participate.

So if she is conscious, he doesn't have to assume anything. If she is not conscious, he better have planned that scenario in advance with her consent.

There is no presumption of consent in marriage. You never have the right to just assume you're allowed to have sex with someone no matter how long you've been with them. And if they actually want to have sex with you, you don't have to assume anything -- they'll be participating.

These are the same rules that guide sexual consent in any scenario. A verbal "yes" is never required for consent to be established, either by law or on a logical level. A sign of willingness, such as enthusiastic and freely offered participation, will suffice.

The rules are no different in a marriage than they are anywhere else.

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You're missing his point. He's not saying - I hope - that you can presume consent without any justification whatsoever.

For example, a minor could give very similar non-verbal signals to those you just described. Or an abused wife who's simply terrified of what might happen if she doesn't actively participate. Such signals alone do not mean that consent is present or that consent has been established. A partner can only presume whether such signals indicate that consent is present (because the presence of such signals is not the same as the presence of consent - and that's all that matters, whether consent is actually present, not just signs of consent). Often that means being aware of the broader context, such as "I don't abuse my wife, so I don't have reason to believe she would be faking consent out of fear". Or "She is old enough and emotionally mature enough to be able to grant consent". Or - related to the OP - "Whether or not my wife is sound-of-mind enough to be able to provide consent".

The point is that partners very often do presume consent, and it's not a matter of whether a person was/wasn't presuming. It's a matter of whether the person was justified in their presumption. Some are and some aren't. I would say a man who abuses and terrorizes his wife is not justified in presuming her active participation indicates consent. That an adult who has sex with a minor is not justified in presuming her active participation indicates consent. Whereas I would say the husband of a happily married couple is (or could be) justified in presuming his wife's active participation indicates consent.

In regard to the OP I would say it simply depends on details we don't have. It could go either way, depending on specifics of the severity of the dementia, though I lean towards not justified.