When Does an Alzheimer’s Patient Lose the Capacity to Consent to Sex?

Posted in: Criminal Law

Earlier this year, Henry Rayhons was arrested for sexually assaulting his wife, Donna Young, who has now died of complications from Alzheimer’s disease. No one claims that Rayhons forced his wife to have sex or otherwise coerced her to do something she did not want to do. The statute under which the State of Iowa is prosecuting Rayhons provides that a sexual assault has occurred when one party to a sexual interaction who is not both married to and living with the other party is incapacitated from giving consent. The relevant statutory language is this: “A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances: . . . . 2. The act is between persons who are not at the time cohabiting as husband and wife and if any of the following are true: a. The other person is suffering from a mental defect or incapacity which precludes giving consent.” In this column, I will consider the wisdom of prosecuting those who have sex with Alzheimer’s patients.

Fairness to the Defendant

In considering the legitimacy of the prosecution against Henry Rayhons, one issue that arises has to do with fairness to the defendant. To be fair to the defendant, a criminal prosecution must be based on a law that gave the defendant fair notice that his conduct was criminal. The Iowa statute in question here uses the words “mental defect or incapacity” to describe a sexual partner who may be irrebuttably presumed a rape victim. But is a diagnosis of Alzheimer’s disease enough to preclude consent under the statute? If not, how incapacitated does one have to be to trigger the statute’s application? And was it sufficiently clear that the defendant’s wife had reached this level of incapacitation that the defendant could have known, if he had perused the criminal code, that what he was doing constituted a crime? An Iowa high court opinion, State v. Sullivan, has interpreted the relevant section as protecting “those who are so mentally incompetent or incapacitated as to be unable to understand the nature and consequences of the sex act.” This standard is somewhat indeterminate but seems to require a profound degree of impairment.

Without a greater familiarity with the facts of this extremely sad case, I cannot say how incapacitated the defendant’s wife was at the time that they had sex, whether she had lucid periods that interrupted her cognitive decline—as some Alzheimer’s patients do—and whether she expressed a desire to have sex with her husband that her husband would have properly interpreted as genuine and authentic, given their existing relationship. There are conflicting accounts of how impaired she truly was at the time, a few months before she died of complications from the disease.

Not knowing the answers to these questions makes it difficult to determine whether the prosecution is attempting to evenhandedly enforce a law prohibiting sexual assault or whether, as some have suggested, the prosecution is acting at the behest of two of the wife’s children from an earlier marriage who may bear independent animosity toward their stepfather.

Protecting Autonomy and Protecting Vulnerable Parties

In addition to the question of procedural fairness for the defendant, this prosecution also raises a more general, less fact-specific question about whether and why we ought to have laws that criminalize and label as “rape” or “sexual assault” those sexual relationships in which one of the parties suffers from a medical or psychiatric condition that compromises his or her cognitive and/or emotional capacities.

One answer to this question is yes, of course we should stigmatize sexual relations with compromised adults, because such adults are equivalent to children, and we have an obligation to protect the vulnerable from exploitation by others. When children are concerned, this is no doubt true, but are impaired adults truly comparable to “grown up” children?

Some adults are unquestionably too impaired to consent to sex, and sex does seem to be the sort of activity to which both parties ought to be able, at a very basic level, to agree or disagree. I would accordingly part ways with Professor Eugene Volokh’s statement that an incapacitated person might be properly considered involved in legitimately consensual sex if, at an earlier time—when she had the capacity to consent—she consented and thereby implied an ongoing consent that could extend beyond the persistence of her mental competence. This position, it seems to me, could justify a party in having sex with a comatose (or even dead) spouse, so long as the two had previously enjoyed a consensual (and conscious) sexual relationship.

If a person’s illness has progressed so far that she can no longer let us (or her partner) know—through words or actions—whether she does or does not wish to have sex, then permitting the partner to have sex with that person carries an unacceptable risk of what is essentially involuntary, forced sexual contact. On the other hand, if the person can both desire sex and indicate that desire—or its absence—to her partner, then I wonder why we would presume to “protect” such a person from her own desires, any more than we might “protect” a presumptively “competent” adult from pursuing ill-advised sexual encounters in an exercise of what we might deem to be profoundly poor judgment. To say this differently, in the form of a question, how “competent” must a person really be to be able to have his or her sexual choices respected enough not to punish those with whom she chooses to couple?

I would argue accordingly that the analogy to children breaks down when we speak of actual adults, even those who are impaired. Our society has made a judgment that even if a girl or a boy has reached puberty, we reject the notion that he or she has a protected interest in satisfying his or her sexual desires. This judgment may, in some cases—for very mature adolescents who are interested in other mature adolescents—be over-inclusive.

Similarly, a young adolescent may have the intelligence and maturity to vote (that many adults lack), but we nonetheless refuse to allow him to do so, even as we protect the adults’ right to vote, because the adolescent is part of a group that is, in general, incompetent to carry out the activity responsibly. We likewise exclude him from the interest in sexual expression with others because he is part of a group that we deem, in general, unequipped for what a sexual relationship involves. When it comes to children, we are broadly over-inclusive in protecting their vulnerability at the expense of their freedom. This is at least in part because we anticipate that they will later enjoy adult freedom and that their ability to do so may turn on our successfully protecting most of them from the premature exercise of freedoms for which they are psychologically and perhaps physically unready.

Adults, in contrast, come in many cognitive shapes and sizes, and being an adult generally means that we extend the full panoply of autonomy rights—including the right to have sex—unless there is an extremely good reason not to. What would count as such a reason in the case of a child (“she belongs to a group that is generally not ready to exercise this right responsibly”) thus has much less weight and ought perhaps to have no presumptive weight in seeking to deprive the impaired adult of similar rights and interests.

One example of an impaired adult who forfeits his right to full autonomy is the adult who is extremely drunk and whom we deem incapable of giving valid consent (not only to sex but to other things like medical procedures). In the case of the drunk, however, allowing the alcohol to leave his system will restore the rights that he previously enjoyed. It is possible, then, to characterize the competent adult who has become drunk as “temporarily suspended” from his ordinary self. Alzheimer’s patients and others who suffer from dementia, however, have an impairment that fundamentally alters who they are and does so, more or less, for the rest of their lives. Unlike children and unlike drunks, the Alzheimer’s patient will not “grow out of” his or her state of non-autonomy. For that reason, we need to be extremely careful about declaring the population of Alzheimer’s patients sexually incompetent and declaring their partners rapists, since that declaration will likely be permanent.

A More Fine-Tuned Analysis Needed

Let me be clear that I would reject the idea that so long as a person is alive and previously consented to have sex with a particular partner, anything goes. One can be alive without having the ability to convey to a partner the wish to have sex or not to have sex, and that capacity ought to be a non-negotiable feature of sexual autonomy. Autonomy, after all, includes not only the right to say “yes” but a right to say “no” as well. When a person lacks the capacity to do either of these things, through words or actions, then sex with her is necessarily non-consensual. The law of sexual assault properly protects such a person from violation.

Yet I worry about the autonomy of people who are impaired, whether by Alzheimer’s disease, by intellectual disability, or by any of the countless insults to brains and minds that can happen in the course of a life. Such impairments are tragic and can sometimes render a person incapable of making her choices known to those around her. But impairments are often partial and leave their victims able to desire sexual union and to make their wishes known to others, such as a partner who continues to be around the patient, even in her compromised state. For such individuals, for whom there is so little left of what she previously had in this world, it seems cruel and unnecessary to protect her from one of the simple things that she might want and can seek in a loving partner: sexual union.