Saturday, May 2, 2015

Capacity and Consent: When is Rape “Statutory”?

In April this year, an unusual twist on sexual consent ended up in an Iowa courtroom.  It is the bittersweet story about an older couple finding a second chance for love, being robbed of their relationship by Alzheimer’s, and then having the State question their right to marital intimacy.  If Henry Rayhons had been able to care for his wife, Donna Lou, at home, instead of a nursing home, it seems doubtful that Henry would have been prosecuted for rape.  At the time they were both 78.   Even after the trial there is some uncertainty about what happened and when, but perhaps Henry’s undoing was that Donna Lou did not have a private room.  Seems when Henry came to visit one day in May 2014, there was only a privacy curtain between Donna Lou and her roommate, Polly, who apparently got an earful.

Given Henry’s status at the time as a sitting Iowa legislator, the possibility of political mischief can’t be ruled out, but regardless, it’s not clear that Donna Lou was actually harmed, or what goals of justice were served by prosecuting Henry.  To complicate this case, Donna Lou’s daughter had been granted guardianship, and apparently the extent of the daughter’s role and authority was an issue at trial.

Henry had been advised that Donna Lou no longer had the capacity to consent to sex.  But in the presence of diminished capacity, who determines that sex is making love or marital rape?  Does a married dementia patient have the right to sex, or the right to be protected from sex?  One expert said, “Someone with dementia is not incapacitated all the time for all things. If they are not incapacitated at the moment of the sex act, they have a right to have sex.”  Before the case went to trial, Donna Lou passed away and Henry declined to run for re-election.  The trial required Henry to discuss his sexual relationship with Donna Lou in open court, and after two days of deliberations, the jury found Henry not guilty.
It seems nursing home personnel might need to reconsider policies and practices to meet the unique needs and circumstances of their sexually active residents.  But this case serves as a reminder that, across the life span, clarity and capacity for sexual consent is too often not as crisp as we all want it to be, and that the responsibility for respectful sex has no age limits.

When laws governing consensual sex are overly proscriptive, it can obscure allowances that should be made for respectful sex, when capacities might be reduced.  When it comes to sex between people who might have diminished capacities because of age, intellectual disability, mental impairment, or drugs/alcohol, there are a myriad of considerations, complicated by statutes that vary by jurisdiction.  It’s entirely likely that interpersonal sex that is legal in one jurisdiction might be illegal in another.  Marriage, religion, and personal morals aside, well-crafted laws should make allowances for sexual behaviors between certain people who are developmentally compatible, and have a demonstrable capacity for consent.  The problem, of course, is that physical, mental, and social capacity for sexual consent is not as uniform as the laws that might govern such conduct.

“Statutory rape” has typically been associated with sex involving minors, but broadly, it seems, “statutory rape” has more to do with the capacity of one or both parties to consent.  Statutory rape laws have a tendency to conflate “unlawful” (because of legal capacity) with “non-consensual” (dominion over one’s body).  In the absence of actual coercion, it seems statutory “rape” might be a misnomer, or at least misleading.  Or perhaps, in reality, all rape laws are “statutory.”

The age of consent for minors in North America ranges between 16 and 18, depending on state laws, and even younger between consenting teenagers.  The age of consent in most European countries is 14-16.  We shouldn’t assume that young people understand their unique capacities, or limitations, for sexual consent.  The confluence of alcohol and sex is inherently hazardous when it comes to capacity for consent.  Alcohol should never be an excuse for sexual misconduct; but when at least half of all sexual violations are alcohol related, it should be concerning to potential sexual partners that there is no obvious demarcation for when the use of alcohol has legally compromised the capacity for sexual consent. 

Experts in this Iowa case discussed how difficult it is to determine diminished capacity to consent to sex.  Even when circumstances indicate that someone should be held accountable for misguided sexual behavior, laws are written to allow, not require, prosecution.  When sexual misconduct or capacity to consent is questionable, it sometimes calls for intervention, or diversion, not prosecution.  Just when we think we can be guided by simple models of “no means no” or “yes means yes,” we are once again reminded that both capacity and sexual consent have insidious shades of gray.

Jon Brandt, MSW, LICSW

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