WASHINGTON, D.C. - Philosophically, it is a fascinating story. Emotionally, it’s sad. Ideally, it shouldn’t be in the news.
I’m talking about the story of Henry Rayhons, a 78-year-old retired Iowa farmer and state legislator who was accused of a felony sexual assault of his wife at a nursing home the Concord Care Center in Garner on May 23, 2014.
Mrs. Rayhons, who died later that summer, had severe dementia. The authorities decided that she was not capable of giving consent to sex and so charged her husband with this crime.
On Wednesday afternoon, a jury acquitted Rayhons. He was facing 10 years in prison.
The details of the case were obviously very important in the courtroom. Thorough and very readable accounts can be found here and here.
But for thinking about the general ethical and legal issues that will certainly come up more in aging (and Viagra-buying) population, a few specifics are salient.
Mrs. Rayhons’ dementia was severe. But witnesses agreed that she seemed happy when her husband was around. Some of her children by a prior marriage believed that their mother couldn’t give consent for sexual activity and that their stepfather should not be allowed to have sexual contact with her. Some of the nursing home staff agreed. There were no reports that Mrs. Rayhons was agitated, scared or angry when her husband visited, or after. The Rayhons, a widow and a widower, have a close, loving seven-year marriage.
The important legal and moral concept at play is consent.
Sex without the consent of both parties is, basically, illegal. It often is not easy to prove, but that is a different issue. Consent is often the key to rape cases where the people know each other or are acquainted through a community – a college or an army base. Is a very drunk young woman capable of giving real consent? If the answer is no, is it always wrong for a man to have sex with a very drunk woman? When does it become illegal?
These issues are tough, but solvable in the abstract, in theory and in most cases. Legally, it is a mess and that is part, only part, of why rape in the military and on campuses is such a fraught ongoing problem.
The nuances with old people are different. But the cases will be more and more common.
Without meaning to be too flip, consider the Concord Wellness & Flourishing Community of 2045. Scores of over-90 Tylers, Brittanys and Ambers, single and married, will rove the spa rooms, virtual reality centers and meditation parlors powered by fourth generation Viagra, testosterone estrogen and other sexual health drugs, calmed by legal marijuana, ancient vodkas, advanced psychopharmaceuticals and stuff we can’t even imagine now. They might even look alright through cosmetic super-surgery and virtual reality. Who knows? I think it could be a pretty randy world.
The Rayhons case introduces some of the issues.
If Mrs. Rayhons is deemed to be incompetent of giving consent, of saying “no” it follows that she cannot be competent to say “yes.” She is doomed to chastity.
Must consent be oral and explicit?
Will we eventually be able to sign “Future Consent” documents like we do now with living wills?
The desire for sexual contact and human touch can outlast even severe declines in cognitive functions, so what are the rules?
About the only conclusion I’ve come to is that the last people on the planet I would want involved in such decisions are lawyers, police, prosecutors, judges and – God forbid – politicians.
In response to a story in The New York Times about the Rayhons case, a man from California commented:
“When my wife was in a state of deep dementia, she would try to initiate sex with me. Although still desirous of sex, I found myself unable to agree with her, but there would certainly have been nothing immoral about doing so. Leave the man alone.”
I agree, as a rule of thumb.
Yes, there will be cases where there are real and provable crimes. There also will be cases of Big Brother meddling and abuse.
Henry Rayhons should never have been charged with a crime. His case shows how fraught this all will be in the elder campuses of tomorrow.