Tuesday, April 14, 2015

Marriage, Dementia, and Consent (more Jurisprudence 101)

1.  Read these

In an Iowa courtroom, an astonishing case of sex and Alzheimer’s

Sex, Dementia and a Husband on Trial at Age 78

Iowa Code 709.4:  709.4  SEXUAL ABUSE IN THE THIRD DEGREE.
         A person commits sexual abuse in the third degree when the person
      performs a sex act under any of the following circumstances:
         1.  The act is done by force or against the will of the other
      person, whether or not the other person is the person's spouse or is
      cohabiting with the person.
         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.
….
         4.  The act is performed while the other person is mentally
      incapacitated, physically incapacitated, or physically helpless.
         Sexual abuse in the third degree is a class "C" felony. 

Ohio Code   2907.02 Rape.
(A)
 (1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
….
 (c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

2.  Some purely legal questions:

Between cohabiting spouses, sex is permitted even if one spouse suffers from “a mental defect or incapacity which precludes giving consent” but not  if  that spouse  is “mentally incapacitated.”  What is the difference?  Or is this just poor drafting?

Ohio law distinguishes between spouses “living separately and apart” and those who are not.  Is there a difference between Iowa’s distinction between cohabiting and noncohabiting spouses and Ohio’s distinction?  To may lay mind, spouses living separately and apart implies that they are neither living in the same place nor have an ongoing sexual relationship.  Is that correct?
Are certain forms of consensual bondage prohibited because they render one partner “physically helpless”?  What if, a la the Iliad, both partners are consensually rendered physically helpless by a third party?  Can this Iowa prohibition be upheld after Lawrence v. Texas

3.  Some jurisprudential questions:

Why should it matter whether the spouses are cohabiting or not? 
Is there a difference between “too demented to consent” and “too drunk to consent”?    Should there be?  Note that in Ohio, but not apparently in Iowa, there is no such thing as “too drunk to consent” between spouses who are not “living separately and apart.”
Should marriage serve as affirmative consent to sexual relations in the absence of any signs of refusal?


For a related post, see here.