A dangerous intersection

I don’t know whether it’s just me, or if some of my usual sources really have gone a little flat recently. I won’t call out anyone in particular.

But the hiatus in links gives me a chance to turn to something that’s been bugging me for a while: the confusion over “consent” to sexual relations. Not just when it’s present or absent,  but why it has supplanted other considerations and how stupidly the legal system can apply the requirement, who consents implicitly and, well, I think I’ve gone far enough impersonating a journalist without a “what” question.

Why should consent as the standard for sexual behaviour succeed in minimizing harm when so many other standards, far more clear, have often failed?

Put differently, why are conservative sexual mores held in such disdain? In some places, CBC headquarters among them, the only thing less popular than non-consensual sex is the idea that sexual activity be reserved for marriage.

Pre-sexual revolution, consent came when you were prepared to commit for the long term, for life …

Post-sexual revolution, consent is far easier to get. Yet today, arguably, we have more people hurting than ever before.

This is in part because consent is not enough to prevent pain …

One of the most harmful things about 21st century sexual morality is that it refuses to condemn anything that is not outright criminal, even though tremendous suffering is caused by immature, unkind and possibly immoral, but legal, behaviour.

… [T]here is something wrong with a culture that allows for such confusion over something so intimate, so often. Consent will fail where commitment to the whole person is absent.

Let’s be clear: consensual adultery, promiscuity and BDSM are not illegal, nor should they be. But in the race to replace higher sexual standards with consensual hedonism, we have lost sight of the guidelines that define not what makes a criminal, but what makes a decent person.

Marriage as the sole appropriate context for sex is a high standard, and an imperfect one. Yet in theory, it demands commitment, not for a single encounter, but for a lifetime. It encourages respect and care not only for your partner’s body, but also for their heart, mind and soul.

Andrea Mrozek and Rebecca Walberg, Why not hold sexual relations to a higher standard? I almost could stop there, but I won’t.

“An Iowa legislator who allegedly had sex with his mentally incapacitated late wife has been charged with sexual abuse. Henry Rayhons, 78, a Republican state representative from Iowa House District 8, was told by medical staff on May 15 that his wife, 78-year-old Donna Rayhons, no longer had the mental ability to consent to sexual activity, according to a criminal complaint obtained by WHO-TV. Donna Rayhons, who suffered from Alzheimer’s disease, had been living in Concord Care Center in Garner, Iowa, since March, according to the Des Moines Register….

In an interview with law enforcement in June,Rayhons allegedly confessed to ‘having sexual contact’ with his wife, according to KCCI. He also allegedly admitted that he had a copy of the document that stated his wife did not have the cognitive ability to give consent. Rayhons was charged with third-degree sexual abuse on Friday.

Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, told the Des Moines Register that even though spousal rape has been illegal in Iowa for about 25 years, arrests for the crime are rare and ‘convictions are even rarer.’ Barnhill also noted that sexual assault between spouses is not considered a ‘forcible felony’ in Iowa.”

Elder Law Prof Blog, State Legislator Charged with “Sexual Assault” of Wife In Complicated Nursing Home Case

The more one reads about the Iowa case, the sadder it seems.  Even though at first it seemed the husband, a state legislator, might be expected to have sophisticated legal knowledge of the implications of what it might mean for his wife to be diagnosed with dementia, it became pretty clear — at least to me, reading from afar — that the husband is a fairly simple guy: A farmer, high school education, part-time legislator who liked pig roasts and parades, and someone who cared deeply for his second wife, trying as hard as possible to see her as “just a little” impaired.

I suspect that for many of us who have experiences with a loved one with dementia, there is a phase of denial, not just about the fact of dementia, but about the level of dementia. I remember one instance where a client always had her husband sign their joint tax returns, because even with Alzheimer’s, he was “able” to sign his name clearly.

Reading the statute used to charge the Iowa husband also gave me pause. Iowa Code Section 709 was the basis of the sexual abuse charges.  Sexual abuse in the third degree under Section 709.4 could be charged where a sex act “is done by force or against the will of the other person.” That provision did not seem to apply.  Charges could also be brought where the act is between persons who are not cohabiting as husband and wife, “if any of the following” is true: “The other person is suffering from a mental defect or incapacity which precludes giving consent.”

Elder Law Prof Blog, When Does Dementia Mean You No Longer Have the Right to Say Yes to Sexual Activity? 

<HumbleBrag>I confess to having lost the ability to think like a law professor</HumbleBrag>, but this Iowa case really roils me. In fairness to law professors, it troubles Eugene Volokh, too, who links to maybe the longest popular news treatment of the story.

I now enter very dangerous territory, where some dishonest people will accuse me of believing that a husband is entitled to rape his wife, but here goes: Shouldn’t we presume that spouses consent to sexual relations unless they affirmatively refuse?

  • If Donna “no longer had the mental ability to consent to sexual activity,” what if she enjoyed (or even enjOyed with a “Big O”) the attentions of Henry, her husband, to which she may have lacked the current ability to consent affirmatively but to which she had consented for years?
  • How many men have had sex with an tired and unenthusiastic but resigned wife a few times?
  • Are they all rapists?
  • Does marriage mean nothing?
  • Is every spousal (I almost said “husband/wife,” silly me) sexual encounter no different than back-seat groping on a date?
  • Since when do “medical staff” get to say “well, no more sexual pleasure for you, Mrs. Rayhons” with the backing of criminal prosecutors?

Meanwhile, some of the numbers for campus rape rates are being exposed as bogus by the Justice Department this very week. One coed in five? Nowhere close. Who made up those numbers: Andrea Dworkin?

I find myself turned off by the blatant exaggerations to the point where I must take myself by the scruff of the neck to remind myself that rape actually does happen, including on campus. That’s how exaggeration – from Andrea Dworkin to Rolling Stone to exaggerated “statistics” to dubious spousal rape charges – can poison the well.

And despite the claim that men are raped sometimes (By women? Really?), women will be the losers of any new indifference to rape occasioned by exaggerations and hysteria.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.