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?
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 is 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.
For an interesting take on this from a few years ago, see this Slate article by Daniel Engber. Thanks to Hans Bader for the pointer.