A portrait of Henry Rayhons, an Iowa state legislator, and his late second wife Donna Young hangs in the living room... Read More 
 
 A portrait of Henry Rayhons, an Iowa state legislator, and his late second wife Donna Young hangs in the living room of Rayhons condo in Garner, Iowa, on Nov. 25, 2014. Close 
 
 Henry Rayhons, a former Iowa state legislator, climbs into a combine driven by his son, Gary, as they test the... Read More 
 
 Henry Rayhons, a former Iowa state legislator, climbs into a combine driven by his son, Gary, as they test the moisture level of a soybean field near their farm in Hayfield, Iowa, U.S., on Thursday, Oct. 9, 2014. Close 
 
 A vehicle drives through Garner, Iowa, on Oct. 8, 2014. Henry Rayhons and Donna Young met while singing in the choir... Read More 
 
 A vehicle drives through Garner, Iowa, on Oct. 8, 2014. Henry Rayhons and Donna Young met while singing in the choir at St. Boniface Catholic Church in Garner. Close 
 
 Henry Rayhons, a former Iowa state legislator, pauses as he gets emotional during an interview in Garner, Iowa, on Oct. 8, 2014. 
 
 Henry Rayhons, a former Iowa state legislator, pauses as he gets emotional during an interview in Garner, Iowa, on Oct. 8, 2014. Close 
 
 Staffers at Concord Care Center in Garner, Iowa, told Henry Rayhons he was no longer allowed in his wife's room, 12N,... Read More 
 
 Staffers at Concord Care Center in Garner, Iowa, told Henry Rayhons he was no longer allowed in his wife's room, 12N, because he made her roommate uncomfortable. Close 
 
 The grave marker of Donna Young, the second wife of Henry Rayhons, stands in a cemetery in Garner, Iowa, on Oct. 7,... Read More 
 
 The grave marker of Donna Young, the second wife of Henry Rayhons, stands in a cemetery in Garner, Iowa, on Oct. 7, 2014. Donna died on Aug. 8, four days short of her 79th birthday. Close 
 
 Iowa State Representative Henry Rayhons is awaiting trial on a felony charge that he raped his wife at a nursing home... Read More 
 
 Iowa State Representative Henry Rayhons is awaiting trial on a felony charge that he raped his wife at a nursing home where she was living. Close 
 
 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 ||||| 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.
– 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.