Henry Rayhons, an Iowa state legislator, speaks during an Oct. 8 interview in Garner, Iowa. Rayhons is awaiting trial on a felony charge that he raped his wife, Donna Young, at a nursing home where she was living. (Daniel Acker/Bloomberg News) 
 
 Bryan Gruley (Bloomberg) has a long and detailed story on the prosecution. Here’s a short excerpt: 
 
 The Iowa Attorney General’s office says [Henry] 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…. 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. 
 
 The question of how to deal with sex by those who aren’t mentally competent is quite complex; it also arises, of course, with regard to those who are mentally disabled all their lives (see, e.g., this post 10 years ago about an interesting Ninth Circuit decision on this and this follow-up). But I think, in cases like the Rayhons case, the key is to consider the nature of the parties’ past relationship, something Iowa law does to some extent but not enough. 
 
 It’s shocking to me that, until several decades ago, a husband’s forcing his wife to have sex wasn’t generally considered rape in the United States. (It still might not be, at least in some situations and at least as of 2010, in South Carolina.) It seems to me quite obvious that spouses are entitled to say “no.” 
 
 At the same time, it seems to me equally obvious that we must consider the parties’ past and unrevoked consent as relevant in some situations where there’s neither a “no” or a “yes.” If A starts caressing B’s genitals while B is sleeping, that’s generally a serious crime. But if A and B are sexually involved, it seems to me it shouldn’t be a crime at all — especially if this has happened before and both parties were quite happy about it — unless B wakes up and says no, or has indicated lack of consent to such behavior in the past. 
 
 This is just a reflection of the fact that “consent,” like much in life, can be implied and long-lasting and not just express and short-term. If we’re good friends and you keep letting me borrow something, that may be evidence of consent to borrow it even when I’m not around to expressly say, “yes, you can borrow it again.” That immediate consent is impossible, because you’re absent, doesn’t mean that there is no consent. Sex is not identical, of course, to borrowing gardening equipment, but in this respect it strikes me as similar: Even when someone isn’t able to immediately consent, it’s sometimes (though not always) reasonable to determine whether they would have consented by looking to past practice among the parties. 
 
 And this is especially so, I think, when the incapacity is permanent or at least long-lasting. I don’t think the law should require lovers or spouses to wake each other up before touching each other’s genitals, even when past practice suggests this is consensual. But at least such a requirement would only slightly interfere with people’s lives. 
 
 If the law criminalizes sex among lovers altogether once one of them has become mentally incapacitated, however warm their relationship was beforehand, that’s a lifetime constraint. And it’s not just a constraint once the incapacitation sets in. It’s a burden even on people who are not yet incapacitated but who know they are getting there, and who are upset that for many years to come they would be unable to give this sort of pleasure to their life partners — or to get this pleasure from them. If you were facing such a mental decline, would you want to know that the law will “protect” you from your beloved husband or wife this way? 
 
 Interestingly, Iowa law takes this into account in some measure, treating spouses differently from others, though not enough for Mr. Rayhons (or for the hypothetical sleeping couple), and not in a way that covers long-term lovers who aren’t married. Rayhons is charged with third-degree sexual abuse: 
 
 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. b. The other person is twelve or thirteen years of age…. c. The other person is fourteen or fifteen years of age and … [t]he person is four or more years older than the other person…. 4. The act is performed while the other person is mentally incapacitated, physically incapacitated, or physically helpless. [From the definitions section:] 1. “Mentally incapacitated” means that a person is temporarily incapable of apprising or controlling the person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance. 2. “Physically helpless” means that a person is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited. 3. “Physically incapacitated” means that a person has a bodily impairment or handicap that substantially limits the person’s ability to resist or flee. 
 
 Sex with a permanently mentally incompetent lover is barred under Subdivision 2.a, at least under the prosecutor’s interpretation, unless the lover is both a spouse and cohabiting. I take it that the prosecutor’s theory in the Rayhons case is that the spouses were no longer cohabiting, because the wife was in a nursing home — but that strikes me as a hard-to-justify distinction, though one that the statute does seem to draw. And, to turn to my hypothetical, sexual touching of a sleeping lover is criminalized under subdivision 4, which lacks a spouse limitation. 
 
 Of course, often the law doesn’t cause these problems, because the allegedly injured party doesn’t complain (spouses who get caressed while they’re sleeping probably won’t call the police), because other parties who know don’t complain (the children of parents who are having sex even though one parent has Alzheimer’s probably won’t call the police, either), or because prosecutors will exercise their discretion not to prosecute. But sometimes third parties might learn of the incident — caretakers, housekeepers, or, as seems to have happened in this instance, children of one party from a former marriage — and be upset enough to complain, and a prosecutor might indeed go forward with the case. The law should be crafted to preclude that, I think, as Iowa law does to some extent but not sufficiently. 
 
 For an interesting take on this from a few years ago, see this Slate article by Daniel Engber. Thanks to Hans Bader for the pointer. ||||| GARNER, Iowa – Concord Care Center staff continue their testimony in the trial of Henry Rayhons which includes the first look at surveillance footage from May 23, 2014. 
 
 Physicians and nurses from the Concord Care Center testified that Donna Rayhons, wife of former Iowa legislator, Henry Rayhons was in no place mentally to give consent to any sexual interactions with her husband. 
 
 Rayhons is on trial for allegedly engaging in a sex act with Donna, who had been diagnosed with dementia and deemed unfit to give consent. 
 
 Dr. John Brady was first to take the stand as the primary physician for the Concord Care Center. He described the downward decline of Donna’s mental state and her capacity for decision-making. 
 
 He says given Donna’s decreasing score on the BIMS (Brief Interview for Mental Status), he determined Donna lacked the cognitive ability to give consent to sex. 
 
 On May 15, during a care conference between Henry, staff and the daughters of Donna, the topic of sex between spouses was discussed briefly. In the document provided to all parties, the document asks, “Given Donna’s cognitive state, do you feel she is able to give consent for any sexual activity?” To which Dr. Brady writes, “no” and then later signs his initials. 
 
 Dr. Brady says in his 20 years of practicing medicine, this is the first time he has ever been asked to make a judgement about a person’s mental capacity to have sex with their spouse while in nursing home care. 
 
 Later, Laura Studer, Director of Nursing at the care facility gave her testimony on the events of May 23. After being made aware of an incident regarding Henry and Donna where sex may have been involved, she reviewed the surveillance tapes. 
 
 There, she says you can see Donna being redirected to her room by Henry, after she had wandered through the halls. Nearly 30 minutes later, Henry is seen leaving the room and walking down the hallway. He would stop and drop something, later discovered to be Donna’s underwear, in the laundry hamper. 
 
 Studer says outside of the concerns addressed by Donna’s roommate, no other care staff recalled anything out of the ordinary. It was only until Donna’s roommate alerted staff by saying, “I know what I heard, I’m not stupid.” From there staff began investigating what they believed to be sexual abuse. 
 
 Luanne Engels-Hepker, administered the sexual abuse exam on Donna and says that she was unable to find any secretions, or any evidence of damage to Donna’s vagina. 
 
 In cross-exam, Engels-Hepker says Donna was very cooperative and did not restrict the investigation in any way. 
 
 According to prosecutors, it was later discovered the same underwear thrown in the laundry hamper contained seminal fluid consistent with the DNA of Henry Rayhons. 
 
 Several nurses, care specialists and even a local police officer took to the stand to testify to Donna’s cognitive abilities. 
 
 Head charge nurse, Shari Dakin explained how Donna was often times, “in her own little world.” Others like nurse, Patricia Barrick illustrated the extent of Donna’s dementia by recalling an event when she met Donna for a meal. 
 
 “She was holding a sandwich like this and looking down and just shaking your head. What do I do? Not saying that, but just looking blankly at the food,” said Barrick. 
 
 Barrick says it was then that she began to notice a sharp decline in Donna’s cognitive functions. 
 
 For updates throughout trial, follow us on Twitter at @KIMTNews3 #rayhonstrial. You can also follow the link below for a full look at the surveillance video from May 23, 2014.
– An Iowa state lawmaker says he loved visiting his wife at a nursing home before her death at age 79. But prosecutors have filed felony charges against him, saying that her Alzheimer's made her unable to consent to his sexual desires, Bloomberg reports via the Washington Post. Henry Rayhons, 78, now out on a $10,000 bond, has declined to run for a 10th straight term in the state House, saying his reputation is ruined. But he seems angrier about how his relationship with his wife, Donna, is being portrayed. "My wife just died and you’re charged with something like this because you prayed by her bed," he says, sobbing. "It hurts. It really hurts." Bloomberg gives a detailed account of how things went sour between Rayhons, Donna's three daughters, and officials at the Concord Care Center in Garner, Iowa. The daughters had Donna placed in the home, where Rayhons visited often and wanted sex once or twice daily, one of the daughters said. "Henry likes this a lot," Donna reportedly said while pointing between her legs, and staffers were said to be "sickened." Rayhons was given a physician-approved document saying that Donna couldn't consent to sex, but he allegedly continued and may have admitted as much to a state investigator. "It was not a regular thing," Rayhons told him, saying he "never touched her when she didn’t want it and I only tried to fulfill her need when she asked for it." Iowa state law doesn't help him, stating that sex with a permanently mentally ill lover is illegal unless that person "is both a spouse and cohabiting," the Post notes. Charged with third-degree sexual abuse, Rayhons is scheduled to begin his trial on Jan. 28 in Garner.