The College Rape Overcorrection

[salm]

Maybe America should adopt something like Iran's Muta or temporary contract marriage that lets Iranians practice casual sex in a legal manner in a muslim country...

First reasonable suggestion in this thread.

[The Romulan Republic]

Maybe America should adopt something like Iran's Muta or temporary contract marriage that lets Iranians practice casual sex in a legal manner in a muslim country...

First reasonable suggestion in this thread.

At the risk of stereotyping, saying maybe we should be more like Iran is probably not an approach that's likely to lead to good results.

And I'm not sure what the point is. If its to remove ambiguity about weather there was consent or not, haven't we moved past the days when being married to someone meant you could legally rape them?

Edit: Perhaps there's some other point to this, but if so please clarify it. I simply don't get what good this would do.

[Elheru Aran]

The temporary marriage contract is more a symptom of a society controlled by religion than any reasonable solution to gender relations. There is little real reason to have it other than to satisfy a religious obligation to not commit adultery, which is more or less a faith-based matter and not one for the state to deal with.

[PainRack]

This really isn't about tipsy people fucking, as much as people seem to want to make it the case. We're not talking about the level of intoxication that impairs the ability to opperate a motor vehicle for one thing, but people actually so out of it that they cant' be said to be in a position to understand what they are consenting to. Frankly keeping people that far gone from making decisions they might regret is pretty basic being a good person. For another thing, this is an issue because date rapist using alcohol to do things to people who can't resist is incredibly common and rarely punished and there is a gigantic social interest in doing something to combat that problem. Rather than worry so much about false accusations which 1) are incredibly uncommon compared to the number of sexual assualts 2) A person will still have considerable legal protection against.

As for mutually intoxicated people, if you're too out of it to consent, likely you are too out of it to have actus reus either. Although all situations would be judged on the entirity of their circumstances.

I'm sorry, but how is the case NOT about tipsy people fucking since that was the OP?


We seen a massive..... drifting of the argument, from this is not an over-correction because isolated false accusations <<<<<< obstruction of rape, with a caveat towards this is a symptom of the true cause, universities being obstructionist towards rape accusations.

The drift started with "there shall be no drunk sex because you can't consent" into the current debate over responsibility while drunk and consent.


The PROBLEM is that while all the points raised by yourself and those on your side are ethically valid, your group has done nothing to address the concern that false accusations of rape exist and has a social cost, and that for the majority of people, even if it doesn't account for the majority of sexual incidents, our version of events where both people or one is tipsy enough to have inhibitions lowered to say yes but may later reverse it is more significant.


Its far more likely for the majority of people to fall into that scenario, as opposed to most of us spiking drinks with additional alcohol, deliberately plying up more drink to get someone utterly shit faced so we can fuck her senseless later.
So, while rape accusations are more likely to be of B, where the perpetuator takes advantage of someone inability to consent, prohibitive measures(as opposed to corrective ones) are more likely to impact A, where its people whoose inhibitions have been lowered due to drink. And your side constant harping about how B is more common of rape ignores our concern of how such concerns will impact A, which impacts a larger portion of the population.

[Simon_Jester]

Basically, universities should NEVER obstruct a rape accusation, but they should follow something closely resembling due process before they kick a student out or enact other major penalties. False rape accusations* are rare, but they do happen and it is a basic matter of justice to ask that someone accused of a crime be given an opportunity to defend themselves effectually.

Denying someone access to a lawyer in a hearing that may determine whether or not they get expelled from college, or even whether they face criminal charges, is wrong. Intimidating people into not seeking legal counsel is wrong. Not giving a defendant the opportunity to answer claims made against them by witnesses is wrong. Not giving people a clear idea of what they're being accused of is wrong.

And moreover, it is not required that we do any of these things to avoid obstructing rape accusations. There's a difference between due process and obstructionism. And there's a difference between due process and, say, refusing to act on the charges, or convincing someone to stop pressing the charges by threatening them.
____________

*Which need not be malicious accusations; it's easy (if uncommon) for someone to change their mind retroactively about whether or not they thought something was a good idea.

[PainRack]

Simon, you not wrong. And that should be the beef of the discussion but I feel that we drifted away from that into a more contentious one....


But with regards to the op, what's good for the goose will be good for the gander. Namely, a standardized process with due process and protection for both accussed and accusers.

Some of the secrecy involved however is due entirely to cultural stigma. If rape victims weren't socially indoctrinated to feel that they're responsible for the rape and slut shaming, there wouldn't be fears of secret accusations and the whole hidden process of investigation.

Still, that's utopian because nothing can change the emotional context of rape, of guilt and betrayal or fear..... My colleagues who saw rape victims always discussed how emotionally distraught and fragile they could be..

[Simon_Jester]

Well, it's fine to amend due process to protect the victim- but that's not the same as removing it.

For example, in the original post the college student's only real opportunity to 'defend' himself was a Skype interview in which Cowan, the university official 'investigating' the incident, did not inform him of the nature of the matter being investigated before the interrogation. And tried to intimidate him out of hiring a lawyer.

How is it a necessary precaution for CB's protection that Sterrett not be informed of the nature of the accusations against him in time to organize his defense? Or that Sterrett not be allowed to consult a lawyer before stating to university officials information that could conceivably come up in a criminal trial? Or that Sterrett not be allowed to consult people who he may need to serve as witnesses in his defense? Or that the investigation throw Sterrett out of the dormitory without (apparently) consulting any such witnesses? Or that the next school year, the university apparently collected outright false 'testimony' from anonymous 'witnesses' who CB apparently did not even know? Or that they suspended him from the university for three years without ever consulting him in person, and on the basis of a seemingly unilateral decision to believe anonymous witnesses that contradicted CB's own statements of the case while totally disregarding Sterrett's attempts to mount a defense?

None of this is really 'protecting' CB.

[sarevok2]

Regarding drunk and consent does it apply to other activities ? Like for example are purchases made while drunk valid ?

[Simon_Jester]

This is not a response to Sarevok, it is an addendum to my last post:

And note that cases like this one (and the 'Jane Doe' case cited later in the article) are, if the male defendants aren't lying, in a real sense "false rape accusations..." but not ones created by any malice on the female plaintiff's part. "False rape accusation" sounds like 'blame the victim' or 'women are evil.' In this case, that is very clearly not any part of what's going on.

At most, these young women are giving in to external pressure to reclassify "sex I wish hadn't happened" as "rape." External pressure that isn't even taking 'no' for an answer, ironically. Because when they say "I regret it but it wasn't rape," that's treated as evidence of deep-seated denial on the part of a rape victim.

Now, there are certainly cases of rape victims who were in fact raped and are in denial. But in counseling office that deals with college students who have sex, there has to be a mechanism for talking meaningfully about sex. Including regretted sex that raises psychological issues. And there needs to be some mechanism other than "it was rape, let's expel the guy you had sex with."

Because even perfectly consensual sex can leave people feeling unhappy or unsatisfied, and in need of someone to talk to. Counseling offices that don't understand this and assume every sex-related complaint they get needs to have rape charges filed... that's a bad thing. That's bad for their parent institution and bad for the student body. It's likewise bad for the institution to have a disciplinary office that 'investigates' incidents with a level of attention to due process usually reserved for Stalinist show trials.

[SCRawl]

Regarding drunk and consent does it apply to other activities ? Like for example are purchases made while drunk valid ?

There is a certain logic there, is there not? If a person cannot consent to a sexual encounter, then how can they (for example) consent to enter into a contract?

The thing is that for the majority of the latter cases the situation can be undone with negligible or minimal harm done to either side. If I (while drunk) agree to buy your car at a stupidly inflated price and then think better of it the next day I could reasonably argue that we did not come to a true meeting of the minds, since one of those minds was clearly impaired. The contract could therefore be contested and possibly nullified.

In the case of the former, you can't unring that bell, which is why consent prior to the act is so important.

There does seem to be this fuzzy area around the facts of non-obvious impairment and its effects on the ability to give consent, and I can see both sides of the debate. Short of subjecting all would-be coital participants who have consumed any amount of alcohol to an fMRI scan I don't know how to avoid the possibility that a person might not be wholly capable of giving consent while still allowing for people to do what people have been doing for millennia: drink and fuck.

[Patroklos]

Aren't there laws against tattoo parlors servicing drunks? I assume this is based on the near permanence of the commercial service provided and you not having the ability to consent to such a thing in that state.

Similarly bars are required to not serve overtly wasted patrons. That one is probably public safety based, but I could see a consent argument applying as well.

[salm]

Tattoo parolors and bars are asymmetrical deals whereas drunk sex is, or at least can be symmetrical. Artists and bar tenders usually aren´t drunk and dont recieve the same service they are offering.
With sex it is two people doing similar stuff to each other likely loaded to a similar degree.
Now, if you had two drunk bar tenders serving each other drinks we´d have a relevant scenario but that would be silly.

[Simon_Jester]

There does seem to be this fuzzy area around the facts of non-obvious impairment and its effects on the ability to give consent, and I can see both sides of the debate. Short of subjecting all would-be coital participants who have consumed any amount of alcohol to an fMRI scan I don't know how to avoid the possibility that a person might not be wholly capable of giving consent while still allowing for people to do what people have been doing for millennia: drink and fuck.

Another problem is that "too drunk to give consent" tends to shift meaning depending on who you talk to.

I would argue that after one or two drinks I could reasonably be expected to honor any contracts I might sign, because while I'd be slightly impaired it'd be no worse than the level of impairment we routinely experience in everyday life due to illness, fatigue, or stress. Even three (which is about as drunk as I've ever been in my life) wouldn't really be pushing it in my mind, because at three drinks I'm still mostly, you know, myself. I can't reasonably claim that the decisions and actions I take at that level of 'buzzed' or 'tipsy' or whatever are somehow foreign to my nature. I don't think I could reasonably claim that three drinks were enough to make me unable to agree to anything for meaningful legal purposes. My sense of decision-making would be disrupted, but not that badly disrupted.

And yet, three drinks might well be enough to alter my behavior enough that I would consent to sex I wouldn't normally agree to- or at least, that I'd regret later. To some people, that's enough intoxication that I am "unable to consent." From a legal standpoint, I'm not so sure.

[TheHammer]

In a nutshell, what this keeps coming back to is that retroactively invalidating consent is a terrible fucking idea. The effects of alcohol are well known. The fact that it lowers inhibitions is one of its primary reasons for use. It removes some of these artificial barriers we create in our heads as well as to lessen concerns about various taboos.

People need to take responsibility for their own actions. That includes accepting the consequences of things they willingly do while under the influence of substances they willingly ingested. Obviously crimes committed against those people are still crimes, but actions that aren't crimes under "sober circumstances" don't suddenly become criminal.

I fail to see why this is such a difficult, or abhorrent concept for some to accept...

[AMX]

Are you attempting to make some kind of point? Because you're missing the mark badly. A deal done in bad faith as you describe is still almost certainly fraud.

Wow, he almost got it.

Sex between two consenting adults is a legal act in this country. The major issue with "too drunk to give consent" is there is no clearly defined line, apparently other than the fact that one or both parties "regretted" the decision the next day. Many people may regret consensual sexual encounters while sober, that does not retroactively make them rape.

Which is why you err on the side of not being a rapist.

[TheHammer]

Are you attempting to make some kind of point? Because you're missing the mark badly. A deal done in bad faith as you describe is still almost certainly fraud.

Wow, he almost got it.

Sex between two consenting adults is a legal act in this country. The major issue with "too drunk to give consent" is there is no clearly defined line, apparently other than the fact that one or both parties "regretted" the decision the next day. Many people may regret consensual sexual encounters while sober, that does not retroactively make them rape.

Which is why you err on the side of not being a rapist.

Was that supposed to be some sort of intelligent response? Do you realize how fucking stupid you sound?

The concept of "accidental rapist", which is essentially what you're talking about, should not fucking even exist.

[Frank the Tank]

Which is why you err on the side of not being a rapist.

Are you stupid to define what "too drunk to consent" means? Or are you just too fucking lazy?

"Hey, I think I'll score cheap points by saying 'don't be a rapist!' Yay me!"

[Arthur_Tuxedo]

The pattern that's emerged here is that some people don't drink much or at all, think poorly of those who abuse alcohol, and aren't interested in hearing about the nuances of being drunk, but rather want to simply condemn the entire set of behaviors. Most of us have a hot button topic like that (for instance very few people are willing to entertain a nuanced and fact-based discussion about pedophilia), but the onus is on us to recognize when we can't be objective about a topic. As someone whose drinking has ranged from a once-in-a-blue-moon glass of wine at dinner to life-threatening alcoholism, I can go into great detail about every stage of drunkenness and how it affects a person's behavior and memory, but if we're not having a fact based discussion and some people would rather just shout rapist and be done with it, then it's a waste of time to continue the discussion.

Simon touched upon a misunderstanding a lot of people have about alcohol, namely the "Mel Gibson defense" as I have come to call it. When Mel Gibson was pulled over on a DUI and made headlines with his anti-Semitic ranting, he blamed it on the al-al-al-al-al-al-alcohol and maintained that he did not hold such abhorrent views. The thing is, alcohol doesn't cause a person to change their beliefs, only to be less careful about who hears it. Alcohol doesn't put ideas in your head, but it does reveal to the world what you really think and who you really are. Most of the times that I've been three sheets to the broken wind, I turned into the overly friendly "I love you man!" variety of drunk, because that's what I carried inside. The few times I was carrying anger and frustration, I turned into a very clumsy Mr Hyde. Pay attention to seemingly nice people who are angry drunks, because that's the only time you're going to hear how they really feel. People spread the myth of the Mel Gibson defense because they accidentally revealed their true nature and are now desperately trying to reconstruct the façade.

So what does that mean for consent? Drunk people want the same kind of sex with the same kind of person that their sober self does, but with much less regard to consequences or the affect a hookup might have on the story we tell ourselves and others about what kind of person we are. I've hooked up drunk with women that I would not be interested in sober, but that's because I wasn't considering the drawbacks, not because the desire to fuck that person was a foreign idea placed into my head by alcohol (which simply does not happen). I've never, for instance, wanted to hook up with a man while drunk despite getting smashed at gay bars on many occasions. If I had, it would have meant that I carried same sex attractions but might not have been aware of it sober because it didn't fit my narrative. In that scenario, I might lash out at my same-sex hookup, claim I had been taken advantage of and that I would never agree to such things if I hadn't been so drunk. Yet unless I was drunk to the point of incapacitation, ie. incapable of basic motor control or intelligible speech, affirmative consent in that state is still valid because my actions reflected my desires at the time. If I were on some kind of hallucinogen and thought I was agreeing to ride a magical unicorn to an enchanted mushroom grove, it would be different, but that is not something alcohol does to the brain, despite the protests of people trying to use the Mel Gibson defense. If a person is sober enough to say yes and participate, they're sober enough to deal with the consequences. If they're too drunk for one or both of those things, they're incapacitated and anyone who has sex with them is a rapist. Unlike the fMRI machine approach, this is not a fuzzy line and it's very obvious when a perpetrator is crossing it. There can be no "double rape" under this definition because an incapacitated perpetrator cannot carry out the sexual act, and it squares with existing law (especially with an affirmative consent principle) and the experiences of people who know what it's like to be at various states of intoxication. If the drunk sex = rape hardliners want to propose a better definition, I'm all ears, but so far all I've seen is "you just want to fuck blackout drunk girls, you probable rapist!"

[Simon_Jester]

I will say that in some cases, a person's conscious restraints can reasonably be considered part of who they are. Just like, say, your hobbies, or your tastes in art and music. A drug that strips away that part of you does not necessarily make you more authentically 'you.' So while I'm getting that vibe off Arthur's post, if he believes that, I have to dissent from him on that issue.

On the other hand, I'm not disputing Arthur's basic point that being drunk won't make you do things you wouldn't at least sort of consider sober; that it removes your restraint rather than changing your actual impulses. And that there is a difference between someone who is unrestrained due to (voluntary) consumption of alcohol and someone who is incapacitated due to (massively excessive) consumption of alcohol.

[TimothyC]

Rather than clutter up the board with a second (slightly related) thread, I figured I should post this here:

Can a Wife with Dementia say yes to sex?

More than 350 people attended the wedding reception of Donna Lou Young and Henry V. Rayhons in Duncan, Iowa, on Dec. 15, 2007. Family and friends ate pork roast and danced polkas to celebrate the union of a widow and a widower, both in their 70s, who had found unexpected love after the deaths of their long-time spouses.

For the next six-and-a-half years, Henry and Donna Rayhons were inseparable. She sat near him in the state House chamber while he worked as a Republican legislator. He helped with her beekeeping. She rode alongside him in a combine as he harvested corn and soybeans on his 700 acres in northern Iowa. They sang in the choir at Sunday Mass.

“We just loved being together,” Henry Rayhons says.

Today, he’s awaiting trial on a felony charge that he raped Donna at a nursing home where she was living. The Iowa Attorney General’s office says Rayhons had intercourse with his wife when she lacked the mental capacity to consent because she had Alzheimer’s. She died on Aug. 8, four days short of her 79th birthday, of complications from the disease. One week later, Rayhons, 78, was arrested. He pleaded not guilty.

To convict Rayhons, prosecutors must first convince a jury that a sex act occurred in his wife’s room at the Concord Care Center in Garner, Iowa, on May 23. If prosecutors prove that, his guilt or innocence will turn on whether Donna wanted sex or not, and whether her dementia prevented her from making that judgment and communicating her wishes.

The State of Iowa vs. Henry Rayhons offers a rare look into a complex and thinly explored dilemma that will arise with increasing frequency as the 65-and-over population expands and the number of people with dementia grows. It suggests how ill-equipped nursing homes and law enforcement agencies are to deal with the nuances of dementia, especially when sex is involved. The combination of sex and dementia also puts enormous strains on family relationships, which turned out to be a critical element in the Rayhons case. His four children are supporting him. Two of Donna’s three daughters played a role in Rayhons’ investigation. Through their attorney, Philip Garland, the two declined to be interviewed for this story.

Sexual assault laws years ago recognized that a spouse cannot force himself or herself upon the other. Dementia confuses the issue. People with dementia can lose past inhibitions about sex and become aggressive about seeking it. They might be unable to balance a checkbook while they’re perfectly capable of deciding whether they desire a partner’s affections.

Experts in geriatrics say that intimacy -- from a hug to a massage to intercourse -- can make dementia sufferers feel less lonely and even prolong their lives. Love complicates things further.

By many accounts, Henry and Donna Rayhons were deeply in love. Both their families embraced their marriage. The case has produced no evidence thus far that the couple’s love faded, that Donna failed to recognize her husband or that she asked that he not touch her, said Rayhons’ son Dale Rayhons, a paramedic and the family’s unofficial spokesman.

Based on evidence generated so far, state prosecutors are likely to portray Rayhons as a sex-hungry man who took advantage of a sweet, confused woman who didn’t know what month it was, forgot how to eat a hamburger and lost track of her room.

“Any partner in a marriage has the right to say no,” said Katherine C. Pearson, who teaches and writes about elder law at the Penn State Dickinson School of Law and reviewed the Rayhons case at the request of Bloomberg News. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”

In interviews, Rayhons said his life and reputation are already ruined. Shortly before his arrest, he withdrew from the election that probably would have won him his 10th consecutive two-year term representing a northern Iowa district in the state House of Representatives.

Sitting in his son’s heated garage on a chilly October night, he convulses with sobs recalling the events of recent months. He says he’s most distraught about being kept from Donna during the last weeks of her life.

“My wife just died and you’re charged with something like this because you prayed by her bed,” he says. “It hurts. It really hurts.”

This story was assembled from hundreds of pages of documents filed with Iowa regulators and the Hancock County District Court in Garner as well as interviews with more than two dozen people. Geoff Greenwood, a spokesman for Iowa attorney general Tom Miller, declined to comment or make prosecutors available for interviews.

Henry and Donna

Henry Rayhons is a sturdy, 6-foot-2-inch man whose family has farmed in northern Iowa for more than a century. He graduated in 1954 from the high school in Garner, a town of clapboard homes and 3,100 people about 110 miles north of Des Moines. Rayhons took night classes in farming and never attended college.

He married Marvalyn Carolus in 1959. They had two daughters and two sons who helped them grow crops and raise dairy cows northwest of Garner. Diabetes forced Marvalyn to undergo two kidney transplants and cost her parts of her feet and her vision. At home, Rayhons dressed her wounds and hung IV bottles, his children said.

As Marvalyn’s condition deteriorated in 2006, Rayhons said, “She told me, ‘Don’t stay alone. Find someone to share your life with you.’” After she died that November, he grew despondent. His son Dale, 52, recalls his father saying, “I keep praying for God to just take me. I’m nothing.”

The next summer, Rayhons got to know Donna Lou Young, an elegant woman with an infectious smile and a shock of white-on-silver hair set over her forehead like a tiara. She grew up in Garner, where her parents owned a bakery, and later worked as a secretary at the high school there.

After her husband of 48 years died in 2001, Donna survived on savings, Social Security checks and what she made selling honey from bees her late husband had kept. She loved babies, cookbooks and her garden. Friends and family gobbled up her potato bread, pickles and onion rings.

She and Rayhons began to flirt while singing in the choir at St. Boniface Catholic Church in Garner. “She was always a very well-dressed lady, which I admired,” Rayhons said. “She liked high-heeled shoes.” In August 2007, he asked her to accompany him to the Iowa State Fair. Donna said she’d go if he first went with her to her daughter’s 25th anniversary party.

Not long after, Rayhons told his son Gary Rayhons, 43, that he and Donna were going to wed. “He’s not a very emotional man,” Gary said. “It’s probably only the second time in my life he gave me a hug, he was so happy.”

Henry Huber, then pastor of St. Boniface, dubbed Donna “Smoochie” because she and Rayhons often kissed at the “sign of peace” during Mass.

“They were two good people who were good together,” Huber said.

Children of both Donna and Rayhons helped with the wedding arrangements. St. Boniface was dressed in scarlet poinsettias. The bride wore a white veil. At the reception, Malek’s Fishermen played polkas within the wood-paneled walls of the Duncan Community Ballroom.

Rayhons said he and Donna “danced with our grandchildren until 11 o’clock and we were so tired, we just went home and never thought of what newlyweds are supposed to do.”

They lived in Rayhons’ house in Hayfield before moving to a condo in Garner. Donna became a fixture at the state Capitol in Des Moines, where the part-time legislature meets for about four months each year.

“Her clothes were always immaculate. She was always in a skirt,” said Charity McCauley Andeweg, who clerked for Rayhons. He bought Donna more than a dozen dresses on sale at the Goodnature department store in Garner. “She was so proud that he would go shopping with her,” McCauley Andeweg said. “He treated her like a queen.”

In the summer, they went arm-in-arm to July 4th parades and polka festivals, pork feeds and fish fries. Rayhons got himself a bee suit. “I learned about beekeeping in a real hurry,” he said. He and Donna attended Mass once or twice a week and enjoyed leisurely drives in the flatlands surrounding Garner.

“It was usually hard to find them at home,” said Rayhons’ daughter Carol Juhl, 54.

Diagnosis: Alzheimer’s

Four years ago, Donna saw a neurologist for headaches and forgetfulness. He diagnosed her with possible early onset Alzheimer’s. Over the next few years, she began to repeat herself, family and friends say. She left belongings behind. She drove on the wrong side of the road. She put a single sock in her dryer when she meant to do a full load.

Rayhons said he took her driver’s license, unplugged the dryer, and kept her away from the stove.

About 5.2 million people in the U.S. have Alzheimer’s, the most common form of dementia, the Alzheimer’s Association says. Partly due to the aging of the Baby Boom generation, the association expects the number of those 65 and over with Alzheimer’s to exceed 7 million by 2025, barring medical breakthroughs.

While fatal for every victim, Alzheimer’s experiences vary. A person who lacks mental capacity to fathom a grocery list could be able to choose the television show she wants to watch. Those capabilities can vary from day to day and hour to hour.

“When somebody has dementia, their ability to know is impaired, but it also fluctuates,” said Pearson of the Penn State law school. “It’s not an on-or-off switch. It’s more of a dimmer switch.”

That makes it difficult to measure with precision a sufferer’s ability to make a particular judgment at a particular moment, especially when it comes to the emotionally fraught subject of sex.

Pearson said rape cases involving a spouse with dementia are extremely rare and she couldn’t recall another one in more than 20 years of work on elderly issues.

“This is maybe the last great frontier of questions about capacity and dementia,” she said. “And it’s all tied up with our own personal feelings about sex.”

By early this year, two of Donna Rayhons’ daughters were concerned about their mother’s worsening dementia and the way Rayhons was caring for her. Linda Dunshee, 54, and Suzan Brunes, 52, had heard from a legislator, a lobbyist and other people working in the Capitol that he sometimes left her alone while he was in meetings. They worried she’d wander the hallways or outside on her own, according to their statements to investigators and other court documents.

Brunes, a hospital administrator, and Dunshee, executive director of a non-profit serving people with intellectual disabilities, had talked to Rayhons about putting their mother in a nursing home. He had resisted.

He says now he didn’t want to be separated from her. He says he wanted to get her professional care that would allow her to keep living with him. His son Dale said, “I’m sure there was probably a little bit of denial in it, that things weren’t as bad as they seemed.”

On March 25, Dunshee picked up Donna in Des Moines and took her for lunch at a downtown restaurant, according to testimony Dunshee later gave to a state investigator. Beneath her winter coat and blazer, Donna was wearing a sleep teddy that exposed her breasts, Dunshee told the investigator. In a restaurant bathroom, Donna put her hands in the toilet bowl.

John Boedeker, a family physician in the Garner area, examined Donna and recommended placing her in a nursing home.

'Donna Was Gone

On March 29, Brunes and Dunshee moved their mother into Concord Care Center in Garner, two miles from the condo where Donna and Rayhons lived. Rayhons was aware that Donna might be moving, though he had resisted, according to a log kept by the daughters.

While his wife was moving, Rayhons was attending a legislative forum 30 miles away. “I got home and Donna was gone,” he said, his face flushing red with anger. “I couldn’t talk to the girls. They were the boss.”

Concord Care is a red-brick, one-story building that sits nine blocks from the courthouse where Rayhons is scheduled to be tried. The 66-bed facility is one of more than 50 nursing homes, assisted living centers and other long-term care facilities operated by privately held ABCM Corp. of Hampton, Iowa. Concord Care administrator Holly Brink declined to comment on the Rayhons case. She told investigators that Rayhons had trouble understanding dementia.

On its website, ABCM says its properties embrace a policy of “person-directed care” designed to give each resident a prominent voice in how she or he lives.

Concord Care has no designated unit for dementia sufferers, though staffers try to minimize activity that could agitate them, Brink said. The home doesn’t have a specific policy on sexual matters.

Staff notes portray Donna in her early weeks at the home as pleasant, alert and occasionally forgetful. She initiated conversation with other residents and enjoyed bingo, music and other activities.

Donna had a room to herself where one afternoon a nurse opened the door to find her in bed and Rayhons kneeling in prayer. Brink later told a state investigator that the two held hands and “Henry was more affectionate with Donna than most people were,” an interview summary said.

Because the legislature was in session, Rayhons awoke many days at 5 a.m. so he could see Donna before driving two hours to Des Moines. When the House finished for the day, he drove back to have dinner with her, say a Rosary, and kiss her goodnight, he said.

Donna’s condition worsened in May. She had trouble eating and finishing sentences, didn’t recognize mashed potatoes and wandered into other residents’ rooms, according to statements to investigators and other documents.

There was increasing friction between Rayhons and Donna’s daughters, Brunes and Dunshee. Rayhons pushed for taking his wife out on outings, which the daughters thought agitated their mother, and made derogatory remarks to Donna about the daughters and Concord Care, according to the daughters’ log. Rayhons says now that Donna became upset because he couldn’t be with her all the time.

Brunes and Dunshee also were increasingly concerned that their mother was having sex with Rayhons when she lacked the capacity to knowingly consent, according to interviews with investigators and other documents. The daughters’ log says a nurse told the women that on a number of occasions, Donna was wearing nothing but a robe after a visit from Rayhons, and that staffers “felt sickened by what he was doing to her.”

Brunes told a state investigator that her mother said Rayhons wanted sex one to two times daily, and that Donna once pointed at her crotch and said, “Henry likes this a lot.” Rayhons later told the investigator that his wife enjoyed sex whenever they had it.

On May 14, Brunes and Dunshee met with Brink and John Brady, another family physician caring for Donna at the home. They discussed a new plan to limit outside activities, including outings with Rayhons, so Donna’s routine would be more consistent and less agitating.

Consent or Not?

Brady initialed a one-page document listing the restrictions and including a question about whether Donna was mentally able to consent to “any sexual activity.” Brady wrote, “No.”

The plan and the sexual decision were based on Donna faring poorly on a standardized cognitive test called the Brief Interview for Mental Status. The BIMS is used to identify nursing home residents with dementia for the federal Centers for Medicare and Medicaid Services, which regulates nursing homes.

Test subjects score from 0 to 15 on a series of memory questions such as what year, month and day it is. They’re given the words “sock,” “blue,” and “bed” and asked to repeat them. Donna scored 2 on a BIMS given her on April 3 and zero on a May 13 test.

Using the BIMS to gauge a dementia sufferer’s ability to make sexual and other decisions is a mistake made by many long-term care facilities, said Susan Wehry, a geriatric psychiatrist and commissioner of the Vermont state department that investigates sexual and other abuse in nursing homes.

“I’m sensitive to the nursing home’s desire to protect their resident and certainly to the daughters’ desire to protect their mother,” Wehry said. “The BIMS in this case tells me nothing except that she has dementia. You can have virtually no short-term memory and still consent to a lot of things.”

Douglas Wornell, a Tacoma, Washington, geriatric psychiatrist and author of the 2013 book “Sexuality and Dementia,” said it was “naïve” to conclude that Donna’s inability to recall words meant she couldn’t decide whether she wanted sex, which is “along the order of knowing you want some food.”

Rayhons was presented with the document saying Donna couldn’t make decisions about sex in a meeting with her daughters and Concord Care staff on May 15. He said he understood and “it wouldn’t be any problem,” Brunes told a state investigator.

A few days later, Brunes and a Concord Care social worker discussed moving Donna into a room with a roommate she could interact with, according to the log the daughters kept. The home needed Donna’s room for a male resident and Brunes thought having a roommate might prevent “potential sexual acts,” according to a log she and Dunshee kept.

Donna moved into Room 12 North on Friday, May 23. She wasn’t happy about it, according to the daughters’ log. She wept and accused Brunes of not liking her husband.

That evening, Donna’s roommate, 85-year-old Polly Schoneman, was sitting in a chair when Rayhons came to visit Donna at about 7:40 p.m. He stayed for about half an hour. Shortly after he left, Schoneman hit the call button in Room 12 North’s bathroom.

She was crying when nurse Shari Dakin and a nurse assistant came in. “I just can’t stand him,” Schoneman told them. She said Rayhons closed a privacy curtain between the beds and said, “Honey, I’m going to get you ready for bed,” the staff notes say.

Schoneman said she then heard “sexual” noises, the notes say. “I’m not stupid, I know what was going on,” she told the staffers. A video camera in the hallway caught Rayhons dropping his wife’s panties into a hamper.

Rape Test

A flurry of calls between staff and Donna’s daughters followed. Around 10:30 p.m., Dunshee asked that police be called. Sometime after midnight, Garner’s police chief and Brunes took Donna to a hospital for a sexual assault test, the staff notes say. Donna’s panties and bedding were sent to the state crime lab in Ankeny.

Brunes told nursing home staff that her mother “tolerated the hospital assessment well” and there was “no bruising or tearing of her vaginal skin,” according to a log prepared by a staffer.

Rayhons returned the next morning and sat near an aviary with Donna, holding hands. “Donna was smiling, talking with him about the farm,” the staff notes say. He was unaware that police had taken Donna for a rape test the night before. Staffers told him he was no longer allowed in 12N because he made Donna’s roommate uncomfortable.

“How much more are you going to cut me off from her?” he said.

Three weeks later, Rayhons was getting his mail one morning when special agent Scott Reger of the Iowa Division of Criminal Investigation pulled up in an unmarked Chrysler 300. Reger identified himself. As Reger followed Rayhons into his condo, the agent turned on his audio recorder.

By then, Rayhons knew he was under investigation for possible sexual assault. It had come up at an informal court conference about Brunes’ successful petition to become Donna’s temporary legal guardian. Rayhons initially thought he should be his wife’s guardian and backed off after learning he “had a much bigger fight coming,” son Dale said.

Under terms of the guardianship, Rayhons agreed to more limits on interactions with Donna. He needed Brunes’ permission to take his wife on outings. Among other things, Rayhons was kept from taking Donna to a friend’s funeral, because her daughters felt it could agitate her.

Rayhons and agent Reger, 39, sat facing each other on bar stools in Rayhons’ kitchen. On the refrigerator door hung a photograph of Donna that Rayhons says he kisses whenever he opens the fridge. He and Reger talked for almost two hours, according to an 89-page transcript of the agent’s audiotape.

Rayhons told Reger that Donna had “gone downhill badly” after entering Concord Care, though she had days when she could have a coherent conversation. He said she had begged him to take her for a drive so she could “see the crops growing and the honeybees coming out of the hives.”

He said, “She hates the place she’s in.”

Reger asked about their sex life. “It was not a regular thing,” Rayhons told the agent. At his age, he said, “you forget about that stuff and you just want togetherness.” He said Donna on occasion asked for sex by saying, “Shall we play a little bit?” He said he “never touched her when she didn’t want it and I only tried to fulfill her need when she asked for it.”

Reger pressed him about the evening of May 23. Rayhons said he couldn’t remember being in Donna’s room. After suggesting that tiny video cameras had captured Rayhons having sex with Donna, Reger asked if Rayhons had placed his penis inside his wife. Rayhons said, “I would guess … if … if that’s what you’re saying, yeah.” The state hasn’t produced evidence thus far of videos taken in the room.

Rayhons acknowledged seeing the document asserting that Donna couldn’t consent to sex. Then he argued with Reger about whether she could. “She still asks for it,” Rayhons said, and the agent replied, “I know that she didn’t ask for it that night, okay?” After letting Reger take DNA swabs of his mouth, Rayhons said, “I don’t remember having sex in that room with her. I really do not.”

After the agent left, Rayhons drove his black Cadillac to son Dale’s house in Forest City, 13 miles away. Dale recalls his father as upset and confused: “He said, ‘I don’t know what just happened.’”

Hancock County attorney David Solheim oversees most criminal prosecutions in his jurisdiction. He said he let the state handle the Rayhons case because Rayhons “is a well-known political figure here” and “it would be better that we didn’t get into the weeds of the local politics.”

'Love You, Honey'

Rayhons saw his wife for the last time on Aug. 7. It was only the second time he’d been allowed to see her for several weeks. He and son Gary made the 45-minute drive to Hampton, Iowa, where Donna had been moved to an ABCM facility with an Alzheimer’s unit.

Dunshee and Brunes were with their mother. She was incommunicative. Rayhons knelt by her bed and prayed the Rosary. Gary said his father held Donna’s hand and said, “Love you, Honey.”

She died the next day.

Rayhons attended Donna’s Aug. 12 funeral at St. Boniface, the church where he married her. He was arrested three days later and released on $10,000 cash bond. The Iowa Department of Public Safety issued a one-page press release about the arrest. The release made no mention that the alleged rape victim was Rayhons’ wife.

In court filings, prosecutors say Rayhons confessed to having sex with his wife. They also cite what Donna’s roommate, Schoneman, told nursing home staff on May 23.

The state crime lab completed Donna’s rape test Nov. 20. It took six months to process because of a backlog at the lab. The exam showed no evidence of seminal fluid or DNA other than Donna’s on swabs of her mouth and vagina. A stain in her underwear “indicated the presence of seminal fluid; however, no spermatozoa were microscopically identified,” the two-page lab report said.

Rayhons’ son Dale said that the stain must be old and the test results show that his father didn’t have sex with Donna on May 23. In a recent court filing, prosecutors said Donna’s bedding has yet to be tested and the presence of the stain “is entirely consistent with the State’s theory of the case.” Prosecutors also have argued that a lack of DNA evidence wouldn’t refute Rayhons’ alleged confession.

Rayhons’ attorney, Joel Yunek of Mason City, said in a court filing that what Rayhons told agent Reger is “vague” unless “snippets of the interview are selectively taken out of context.” In a June 5 interview with a different state investigator, Schoneman revised her earlier words. She said she heard whispering, not sexual noises, although she worried for Donna’s safety.

Iowa’s sexual assault law doesn’t explicitly define the “mental defect” that the prosecution must prove Donna had. In a review of the statute in 1980, the state Supreme Court said the language “protects those who are so mentally incompetent or incapacitated as to be unable to understand the nature and consequences of the sex act.”

To show Donna lacked that capability, prosecutors may need something more than the BIMS memory tests referenced in court filings, said Wehry, the Vermont nursing home regulator. She said Donna’s doctors should have completed a broader assessment that gauged her ability to solve problems and make judgments, including judgments about sex.

“Does she recognize her husband?” Wehry said. “Does she recognize him as her beloved even if she doesn’t know his name? Is she pleased to see him? Has she been interviewed with him present and asked whether she likes his company, whether she wants to have sex?”

It’s possible that prosecutors possess a more comprehensive assessment. No such report has yet been produced as evidence nor is there a record of one being shown to Henry Rayhons before the alleged assault, attorney Yunek said.

“This was not a rape,” said Daniel Reingold, president and chief executive of the Hebrew Home at Riverdale, New York, a nursing home that has a policy of encouraging consensual sex among its residents, including those with dementia.

“It sounds like they had a really beautiful relationship,” Reingold said after reviewing the Rayhons case at the request of Bloomberg News. “And the law is depriving a couple of having a marital relationship. It is so big-brother-like, so intrusive, so second-guessing of what a person is experiencing in a dementia state.”

Rayhons’ trial is scheduled to begin Jan. 28 in Garner. Prosecutors have asked the Hancock County court for a change of venue because they say local media coverage has poisoned the area jury pool.

Donna’s daughters and Rayhons are now arguing over who should pay the nursing home bills. The daughters recently had their mother’s belongings removed from Rayhons’ condo. The house is still filled with photos of Donna and Rayhons’ first wife, Marvalyn.

Rayhons said he tries to stay busy. He helped his son Gary and a brother in southern Iowa with the fall harvest. Every few days, he visits the gravesites of each of his wives, in separate cemeteries a few miles apart between Garner and Duncan.

“I fully believe if the girls had let me take her home, Donna would still be with us,” he said. “They locked me out and I didn’t see her and I didn’t do nothing wrong.”

To contact the reporter on this story: Bryan Gruley in Chicago at bgruley@bloomberg.net

To contact the editors responsible for this story: John Brecher at jbrecher4@bloomberg.net

Cecile Daurat.

First, I have never denied that spousal rape is not only possible, but that it does happen. Second, unlike the thread I posted earlier this week, there do not seem to be any due process problems with this case. Third, as noted in the article, everyone always has a right to say "No", but as Professor Pearson noted:

“Any partner in a marriage has the right to say no,” said Katherine C. Pearson, who teaches and writes about elder law at the Penn State Dickinson School of Law and reviewed the Rayhons case at the request of Bloomberg News. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”

[Arthur_Tuxedo]

I will say that in some cases, a person's conscious restraints can reasonably be considered part of who they are. Just like, say, your hobbies, or your tastes in art and music. A drug that strips away that part of you does not necessarily make you more authentically 'you.' So while I'm getting that vibe off Arthur's post, if he believes that, I have to dissent from him on that issue.

You're right, and I did think of that but didn't want to go off on a tangent in an already long post. Alcohol brings out the "id" part of someone's personality, which may or may not be more authentic than what they normally present to the world. I eventually figured out that the reason I started drinking heavily is that I was overly restrained sober and didn't know how to express the more aggressive sides of my nature. Alcohol was a quick and easy release valve, and it helped me to realize I wasn't the clean cut Leave It To Beaver type I was pretending to be. People who are more careful by nature will typically dislike the way overdrinking causes them to lose control, and for them their drunk self will actually be less authentic than the sober one.

[Knife]

Yeah, that article is crap. Sounds more like a custody battle than a consent issue. I didn't see anything in there of why the daughters got 'custody' over the husband though, which seems weird, not sure why that guy isn't fighting for custody and rights over his wife and not the daughters since, he lived with the woman and took care of her for years and should presumable know what she would have wished for in these matters more than the children.

And the sex? It is a fundamental aspect of relationships and as long as one or both parties are not harmed with it, who cares? Even dementia patients have the right to free association. A SNF has to protect it's patients from harm but there are limits. You can't tie a person to a bed to stop them from falling. You can't force a person to eat if they don't want your crap food. Why on earth would you think you could stop affection and sexual contact between people. Hell, a lot of these older folks with dementia end up in pseudo relationships in the facilities, some even marry each other in facilities.

This guy is going to sue this SNF into oblivion after the farce of a trial is done.

[AMX]

Was that supposed to be some sort of intelligent response? Do you realize how fucking stupid you sound?

Ironically enough, that's pretty much what I think about your "responses."

The concept of "accidental rapist", which is essentially what you're talking about, should not fucking even exist.

Not "accidental" you fuckwit.
Negligent.

[AMX]

Are you stupid to define what "too drunk to consent" means? Or are you just too fucking lazy?

"Hey, I think I'll score cheap points by saying 'don't be a rapist!' Yay me!"

Nah, I just don't have the background to determine solid numbers - and from what I've been hearing (and indeed reading in this very thread), the effects of alcohol may vary too much between people to define a fair standard.

You'll just have to rely on your (supposed) experience and common sense (if any) to determine whether the person you are with appears to be impaired, and back off if they are, or you're unsure.
(Unless you somehow know that they are specifically trying to get drunk and laid - that would, of course, constitute consent. But I'm not entirely sure how you'd go about determining that.)

[Frank the Tank]

Nah, I just don't have the background to determine solid numbers - and from what I've been hearing (and indeed reading in this very thread), the effects of alcohol may vary too much between people to define a fair standard.

You'll just have to rely on your (supposed) experience and common sense (if any) to determine whether the person you are with appears to be impaired, and back off if they are, or you're unsure.
(Unless you somehow know that they are specifically trying to get drunk and laid - that would, of course, constitute consent. But I'm not entirely sure how you'd go about determining that.)

AMX - you're an idiot. Either define what "too drunk to consent" means or admit that you're an ignorant twat who should let the adults talk while he sits at the kiddie table. Your snide insinuations that I'm somehow a rapist because I don't accept your bullshit "any alcohol = rape" argument is pretty tactless and lame. The parting shot of an imbecile, I suppose.

As for the rest of the commenters, I suppose the absence of anybody even attempting to define "too drunk to consent" in the past three or four days means that the debate is over after the "you're a rape-defender" poop flinging of earlier this week? I'm unclear on what the resolution was; whether anybody conceded the argument or if everybody just wandered away to nurse grudges...