There is no question that Donna Lou Rayhons had severe Alzheimer’s.

In the days before being placed in a nursing home in Garner, Iowa, last year, Mrs. Rayhons, 78, could not recall her daughters’ names or how to eat a hamburger. One day, she tried to wash her hands in the toilet of a restaurant bathroom.

But another question has become the crux of an extraordinary criminal case unfolding this week in an Iowa courtroom: Was Mrs. Rayhons able to consent to sex with her husband?

Read the full story here.

Let's suppose she, in her demented state gave consent and even enjoyed the sex, perhaps not even realizing whom she was having sex with.

There's a saying  that "Hard cases make bad law." Are we on the verge of making bad law here? Or is the state right defending his (now dead) wife against partner rape?

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I wouldn't say an absolute yes but I can't imagine very many cases where the person wouldn't have wanted to be driven home nor is it easy to imagine many cases where a person would remain angry with you, end a friendship over it, nor can I imagine this being against any reasonable law if you did it in good faith.

So, speculation as to what the other person would want allows one to make decisions for them. So, my normal sex partner is drunk but not unconscious and is seeming a little randy. I know that normally she's up for sex under almost any circumstance but often enjoys getting tipsy first. Is it okay, based on my assumption or speculation, to go ahead and have sex with her?

I would say that the consequences, if it turns out the person didn't want to be driven home, are no where near as dire as the consequences would be, if you went ahead without someones permission and inserted your penis into their orifices and it turned out they didn't want you to.

So, I'm too drunk to give consent to sex, but a considerate person sees me walking to my car and more or less drags me to his car and drives me home over my verbal protests, though I finally relent and consent to be driven home. On the way, he gets into a stupid accident and I lose my legs. I did consent to get into his car though I wasn't together enough to consent to sex, does my consent to the ride count at all then?

My point is "The ability to consent isn't circumstantial. You are either legally capable of legal consent or you are not. If you are not able to consent to sex or to sign a contract, it seems to me you can't consent to much of anything.

I think you have to admit that this matter of legal consent is a rather thorny one, unless you start generating a list of where consent is required and where it is not. And I don't think we want to go down that road.

Please don't make my conclusions for me if you cannot pay close attention to what I have said.

I did not imply that speculation as to what the other person would want allows one to make decisions for them. What I implied was, speculation as to what the other person would want, in combination with the scale of the consequences if you turn out to be wrong will help you decide if it is worth taking the risk and end up doing something disasterous or not.

Not the same thing at all.

Driving someone home even though they might not want you to...potentially slightly disasterous (and probably not going to get you in jail).

Inserting your penis in an orifice even though someone might not want you to...highly highly dangerous, likely disasterous and if you're in a country where it's legal system is worth anything...very well might get you in jail.

unless you start generating a list of where consent is required and where it is not

No. In both cases consent is important but in one of these cases the likelihood of something going wrong and the consequences if you go wrong are truly "high stakes".

I was bringing you back to a discussion of consent and what constitutes adequate consent, NOT what you're likely to be able to get away with. When you want to discuss what counts as consent, we can get back on topic. 

Until then, you aren't really paying attention to me.

No. Not really. You're just using the slippery slope to make the idea of consent seem more problematic than it is. Consent (in these examples) is only an issue when something disasterous or at least problematic comes along or when the person protests even if they are pleased with the result. Comparing a trivial matter of consent (with the rare chance of disaster) with an extremely serious matter of consent...does nothing to answer the question "what is consent".

If you want a broad answer to the question "what is consent" then why don't you just ask the question "what is consent" instead of slippery sloping your way out if it?

I am doing a linguistic analysis on the word/concept "consent" and how it is used and what it really means. That is my explanation of what I'm doing. 

I'm wondering if one can lack the ability to consent for one thing but be able to give consent in the same condition for something else. It seems to me that that doesn't make a lot of sense. Either you have enough going for you intellectually to give consent generally or else there is a list of things requiring different kinds or degrees of consent.

Coincidentally, a couple attorneys, one a prosecutor and one a defense attorney, agree on one thing. The issue of consent is one of the most difficult issues in the law.

While my actual intention was to use the Rayons partner wife rape case as a springboard to a more general discussion on rape and consent in the context of dementia, I'm sure you'll be interested to know how the case turned out. He was found not guilty.


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