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.
Feminist Philosophers 
It seems to me that the standards for rape in marriage should be different from that in other circumstances. If I have a loving relationship with my partner and we arrive home from a party, as in your example above, unless she verbally or nonverbally says “no”, whether or not she is sober, I don’t think that I am raping her if I initiate sex with her.
On the other hand, with a stranger or a person who I do not have a sexual relationship with, they have to say “yes” or otherwise, it is rape and if they are drunk, their “yes” does not count.
That is, with my partner unless she says “no”, verbally or nonverbally, it’s not rape, while with others, I need a “yes” and a state of sobriety to initiate a sexual relation, without it being rape.
SW, it occurred to me that as I was writing it, I was thinking of marriages roughly like mine, so I tried to put in some things, like ‘beloved’, to exclude abusive marriages, though it may not have done that entirely. On reading your comment, I started to think of marriages where a dangerous pregnancy might occur, or one in which she is undergoing treatment that might harm the fetus. And so on. I can think of too many occasions in which one of a couple might say, “If I had been in my right mind, I never would have gone along….”
Still, it seems wrong not to suppose marriage of some kinds changes the need for assent in any extra form.
The fact that one or both parties afterwards regrets the sexual experience, for one or another reason, does not mean that it was rape.
Let’s say a couple, drunk or not, have sex without birth control and afterwards, the woman gets pregnant and it’s in Chile where abortion is illegal and they have the baby and that means both have to leave school and work and after a while, they both regret having left school and hate their tedious daily routine at low wages. If there was consent, it’s not rape, although both think that “if I had been in my right mind, I never would have gone along”.
I do agree that it doesn’t mean rape or even necessarily any sort of abuse. Among other things, I hate the idea that there should be a uniform “no sex” policy for those diagnosed as seriously cognitively impaired.
What I find unusual and interesting about this case is that an external authority made a prior judgment about whether one party was capable of consenting, and this judgment was made for a person who in the past had been engaging in consensual sex without requiring a special affirmation in each instance. Who is the appropriate authority to judge when this consensual activity is no longer meaningfully consensual, and what criteria should be used to make that judgment? What if the wife recognizes her husband but cannot remember his name? What if she recognizes him 75% of the time but on other occasions appears to believe he is her first husband? (Suppose that in all these cases she expresses a desire to have sex with him.) Should the decision rest with whoever has the patient’s power of attorney for other medical matters? Should it be decided by a physician?
I’m not trying to compare the question of sexual consent to other matters of choice as if they are on the same level, but I have similar questions about how we decide when patients are no longer capable of making certain autonomous choices like drinking or smoking. One of my relatives always enjoyed drinking scotch and expressed a desire to continue drinking it while living in a care home. Why wasn’t this desire respected even though no medical reason prohibited it? At what point and on what grounds does one’s doctor or the medical staff gain the authority to decide that this is no longer a permitted choice?
Susan, I agree. British hospitals used to give patients Guinness; I’m not sure they still do. I think America’s attitudes toward drink are too often close to punitive. More generally, medical personnel assume too much power sometimes in these matters of pleasure, as do relatives, and so on. Often in ill-informed ways.
I realized from SW’s comments that my concerns about consent in cases where the sex is risky reflect the fact that consent is actually important for reasons not very connected to legal matters.
See Alan Wertheimer’s wonderful book: Consent to Sexual Relations (Cambridge University Press).
Crimlaw; thank you for the reference. Daily Nous and Leiter Reports both sadly remark on his very recent death. Clearly, those of us who haven’t read his work would be well advised to do so.
You might also ask: how close in time to the sexual act must consent be given?
My father is suffering from dementia. I certainly hope that my mother is still offering him sex. (I have not asked.) It is a tremendous gift of quality of life, and from his last MRI, I expect he can still enjoy it. It would be very sad to criminalize that.
In my experience, most sex runs on implicit consent. The consent is explicit early in the relationship, but you can stop doing that when you get comfortable enough with each other. Of course, there is always an opportunity to withdraw consent either temporarily or permanently.
My wife and I have had implicit consent since before we were married. I gave my consent more than 20 years ago, and I consider it still valid. There have been times when one of us said “not now”, but that doesn’t remove the implied consent for later. So, yes, we can have sex when one or both of us has been drinking. In fact, we found it can be quite fun from time to time.
Do my parents have implicit consent? I don’t know; it isn’t the sort of thing we talk about, and their generation was different from mine. But all my serious sexual relationships eventually grew to the point of implicit consent for sex. I have no reason to think that theirs did not.
Likewise, I have no reason to expect that Rayhons’s relationship did not. Without some reason to think that implicit consent had been withdrawn, I don’t see a problem with them having sex.
What a sad and difficult question.
Monkey, I agree. What I’m learning from thinking about this is that though “consent is required” seems very useful in any context where rape is an issue, in fact it may use a somewhat simplistic view about “sexual relations” that does not meet well a lot of contexts.
With the article in the Times, one can separate out the Times’ choice of comments, readers’ recommended comments, and all comments. There are interesting differences between ones chosen by the time and the rest, taken all together. It looks to me as though a lot of readers do not have a sex positive view!
One of the most interesting reactions I’ve seen says that the problems about dementia and sex need to be addressed early on in the diagnosis stages:
It might be argued that sex between a couple who have been married many years is not rape even if one of the partners develops dementia because implicit consent exists. I would be doubtful about such an argument. In what follows when I refer to married couples I am really referring to couples who have been married many years. Let us assume implicit consent is perfectly adequate consent between most married couples. However even if implicit consent exists sometimes one of the partners might feel disinclined to have sex and simply say something like ‘not now’. Implicit consent is a default position which can always be changed by one of the partners saying no. Implicit consent is an assumption of consent but assumptions can always be changed. The ability to say no is an integral part of implicit consent. Let us assume one of the partners has dementia and doesn’t say no. Does this mean implicit consent exists? I would suggest it does not because one of the partners is not competent to say no. What this example highlights is that there are many varying degrees of rape. I deal with this example and another in more detail in a posting in wooler.scottus.