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Should sex with a wife who has dementia be statutory rape?

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Bloomberg has a story about a 78 year old arrested for raping his wife on the basis that she had dementia an could not consent.

 

With any such article, there's an important caveat: knowing the nitty-gritty facts of the case may show a different picture to what is painted in the article. 

 

With that said, based on the article, there appears to be no basis for prosecuting this guy. It seems to be a combination of over-protective daughters, prudish staff and nosy government, that are pursuing an unjust and pointless prosecution. [ As it is, close to death, life can get rather depressing and pointless, with the typical contexts that we use for decision-making and time-horizons being no longer valid.]

Edited by softwareNerd
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Establishing consent or lack of it requires more information than what is presented in the article.

 

One thing not to forget are the rights of the woman with dementia.  We are allowed as consenting adults to engage in sexual activity that is voluntary, the mere fact that we may forget who someone is or our relationship to them does not mean we are incapable of determining whether we want to have sex.  This is especially true if we have been reminded of the truth as to the identity of the other and the relationship we have.

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Establishing consent or lack of it requires more information than what is presented in the article.

Thinking about this case, I wonder what would happen if we reverse the sexes.

Suppose we had an 80-year old man with dementia, in a nursing home. From time to time, his wife visited and masturbated him or gave him a blow job. The whole thing proceeds with no objection. Would that be deemed abusive?

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Gawd, is nothing private any more? W

Anyway, who knows the wife's state of mind, at that moment?

I have a little familiarity with Alzheimers, and can bear out that the consciousness of its sufferers is erratic, not always one state.

But there are things in a deep and intimate relationship which can't be covered by "consensuality".

A wife (or husband) might be half-asleep, and say no, darling, not now... and be gently persuaded thereafter.

Seems like spiteful daughters with a motive. The case should be dismissed with contempt.

In the meantime, that poor fellow.

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  • 2 months later...

The inability to say "no" does not equal "yes"

 

Which ignores the implicit signals of desire and consent on-going in any long and intimate relationship. And what you might not know, that the disease, while steadily more destructive, allows the sufferer periods of lucidity. Can anyone state with certainty that she didn't initiate the act of sex? The Mother Grundy-State likes to interfere anywhere not its business.

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One might argue that her having married him creates a presumption of consent and that we have no refusal from her that would overcome that presumption.

 

Practically speaking though, assuming her dementia only takes the form of loss of memory of what relationship she has with the husband, and assuming she still has the ability to think and introspect, the husband need only explain to her the truth, and if she finds him fetching, she can give her consent anew.

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While I feel very sorry for everyone involved, I think it's at minimum tasteless to pursue someone who doesn't recognize you because of mental degeneration. Even if she was lucid, she won't be soon.

 

Cognitively a sufferer is in daily and hourly flux, but it needs to be fairly advanced before complete unrecognition of close family members(in my wife's mother's case). Sensorily, functions are sustained throughout, I believe. The spouse, even more than the sufferer, will be experiencing hopeless anguish, likely for several years before the inevitable end. Physical intimacy may well provide emotional comfort for both. I can't see that anyone could deny them that. 

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Query whether a double standard is at play. 

 

For normal functioning men and women the double standard is thus: Women can't have sex even if they want to unless they know and love the man whereas men can have sex with a women they don't know or love...  (yes, it is an old fashioned standard)

 

Apply this to a case of married man with dementia who finds his wife fetching in the moment (enough not to require for example Viagra)  ... and then apply it to a case where the roles are reversed.

 

Just something to think about.

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Query whether a double standard is at play.

Oh, yes. I think part of it stems from the fact that it's externally obvious when a man is aroused. While the same is true for women, it's not as immediately apparent.

That seems to color a lot of this, especially when we talk about "consent"; one can tell what a man consented to more easily and with much more certainty than a woman.

Still, just because it's more difficult to tell doesn't mean it's impossible; the lack of an explicit "yes" should not necessarily be regarded as a "no". And I don't think that most women want to be asked about it in advance, every single time, anyway; not even the ones who insist otherwise, in more abstract discussions.

If you have ever asked a woman for her explicit consent, while she's undressing, you'll know what a bad idea that is.

Rather, we should try to infer it as well as we can, given the information available (just like we would with anything else). In this case, given her conscious decision to marry him, I find it hard to see how anyone could arrive at the conclusion that he raped her. It doesn't fit with the rest of the information.

Edit:

This isn't like a marriage in Iran or something; she chose him of her own free will. I think that should objectively speak volumes.

Edited by Harrison Danneskjold
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  • 1 month later...

This trial is now underway (the wife has died). It is sad to see the state dragging a 78 year old into court on charges like this, dangling a 10 year sentence over him. 

 

Update 4/22: he was acquitted

Edited by softwareNerd
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  • 4 weeks later...

I agree that this should be treated as consensual. They're married, which creates a reasonable assumption that she would want to have sex with him if she were lucid, so there's no basis for considering it immoral in any way.

 

While I feel very sorry for everyone involved, I think it's at minimum tasteless to pursue someone who doesn't recognize you because of mental degeneration.

 

I don't see how. She was conscious, she said yes, and there's no reason she would not have said yes if she was fully lucid.

 

Query whether a double standard is at play.

 

Definitely. No one would consider this rape if it was a man with dementia consenting to having sex with his wife. I think this is just another part of the feminist agenda of demonizing male sexuality, treating women as weak children who are unable to make their own choices, and using that as justification to launch witch hunts.

 

Oh, yes. I think part of it stems from the fact that it's externally obvious when a man is aroused. While the same is true for women, it's not as immediately apparent.
That seems to color a lot of this, especially when we talk about "consent"; one can tell what a man consented to more easily and with much more certainty than a woman.

 

Just because a man has an erection doesn't necessarily mean that he wants it. Arousal is an automatic reflex, which can happen in a variety of moods.

 

I think that when women consent to anything with a man, sexual or otherwise, there tends to be a presumption that it's a sacrifice to accommodate him, and I think that the combination of this and ignoring women's sexual agency (And responsibility for their choices) is what leads to these types of double standards.

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