In Iowa, a jury has found a longtime Iowa state lawmaker Henry Rayhons not guilty of sexually abusing his wife by having sex with her at a nursing home after being told by a doctor that she had advanced Alzheimer’s disease. and was is no longer mentally capable of consenting to sex.

Assistant Attorney General Tyler Buller told jurors  that Donna Rayhons’ Alzheimer’s disease had worsened  in the months before last May’s incident of sexual intercourse by her husband. She had washed her hands in dirty toilet water, Buller said, forgot how to eat a hamburger and thought her  first husband, Slim, was still alive, the prosecutor said. Dr. John Brady testified that Donna Rayhons had severe dementia caused by Alzheimer’s disease, and thus any positive reaction to her husband’s phyiscal advances could be termed a “primal response” at best. Brady testified Monday that Donna Rayhons had declined dramatically in the months before the alleged offense. He said she had been diagnosed with Alzheimer’s based on several tests including  a standard cognitive procedure in which patients are asked simple questions. By last May, Brady said, Donna Rayhons scored a zero on the test, and any score below eight signifies severe impairment, he said.

On his blog, the Volokh Conspiracy, Prof. Eugene Volokh makes a valiant effort to justify, excuse, or perhaps be compassionate regarding a man having sex with his wife after she has forgotton who he is or even what sex is. He argues,

……it seems to me equally obvious that we must consider the parties’ past and unrevoked consent as relevant in some situations where there’s neither a “no” or a “yes.” If A starts caressing B’s genitals while B is sleeping, that’s generally a serious crime. But if A and B are sexually involved, it seems to me it shouldn’t be a crime at all — especially if this has happened before and both parties were quite happy about it — unless B wakes up and says no, or has indicated lack of consent to such behavior in the past.

This is just a reflection of the fact that “consent,” like much in life, can be implied and long-lasting and not just express and short-term. If we’re good friends and you keep letting me borrow something, that may be evidence of consent to borrow it even when I’m not around to expressly say, “Yes, you can borrow it again.” That immediate consent is impossible, because you’re absent, doesn’t mean that there is no consent. Sex is not identical, of course, to borrowing gardening equipment, but in this respect it strikes me as similar: Even when someone isn’t able to immediately consent, it’s sometimes (though not always) reasonable to determine whether they would have consented by looking to past practice among the parties.

And this is especially so, I think, when the incapacity is permanent or at least long-lasting. I don’t think the law should require lovers or spouses to wake each other up before touching each other’s genitals, even when past practice suggests this is consensual. But at least such a requirement would only slightly interfere with people’s lives.

If the law criminalizes sex among lovers altogether once one of them has become mentally incapacitated, however warm their relationship was beforehand, that’s a lifetime constraint. And it’s not just a constraint once the incapacitation sets in. It’s a burden even on people who are not yet incapacitated but who know they are getting there, and who are upset that for many years to come they would be unable to give this sort of pleasure to their life partners — or to get this pleasure from them. If you were facing such a mental decline, would you want to know that the law will “protect” you from your beloved husband or wife this way?

No. I’ll agree with the professor on the law: this isn’t rape, and the vagaries of the situation are sufficient to render criminalization impractical.

However,  the conduct, assuming Henry Rayhons did have sexual relations with his uncomprehending wife, is unethical—disrespectful, selfish, dehumanizing, and ugly. He was using his wife as a masturbatory sex device, like a blow-up doll. That’s not love. That’s debasement. Volokh’s solution of presuming that the wife would want to “give pleasure” in such a crude way, unmoored from any consciousness or enjoyment on her part, assumes that anyone can really know what their condition will be after all comprehension has left them, and that they should be able to consent to their spouse’s whims regarding use of his or her body.

Can the spouse consent to being used as  Halloween decoration to amuse her husband? How about a scarecrow, or second base in a softball game? Why are any of these grotesque post-sensibility roles less acceptable than involuntary sex toy?

For some indignities, consent may mean someone can be treated in a dehumanizing fashion, but it cannot change the fact that he or she shouldn’t be, especially by someone who supposedly loves them.