Does sexual activity always require the capacity to consent? I’ve started to wonder.
Suppose you and your beloved spouse, both middle-aged and abled-body, arrived home from a party and realize one of you has had too much to drink. More than either of you had realized. But, curling up in bed, both of you feel that hugs and kisses wherever they may lead are very appealing. Should the sober one refrain on the grounds that the other can’t really meaningfully consent?
There are many possible complicating factors with sexual encounters, which is why I added in marriage, age and ability. A similar scenario could quite easily become a legal nightmare. And what about a specific disability, dementia? Right now this issue may be addressed in a court:
Henry Rayhons, 78, has been charged with third-degree felony sexual abuse, accused of having sex with his wife in a nursing home on May 23, 2014, eight days after staff members there told him they believed she was mentally unable to agree to sex.
It is rare, possibly unprecedented, for such circumstances to prompt criminal charges. Mr. Rayhons, a nine-term Republican state legislator, decided not to seek another term after his arrest.
There is no allegation that Mrs. Rayhons resisted or showed signs of abuse. And it is widely agreed that the Rayhonses had a loving, affectionate relationship, having married in 2007 after each had been widowed. They met while singing in a church choir.