Sexual Consent and Memory

Suppose there is a wife and a husband.  They have sex, but the man is being charged with rape.  He responds back by saying that she consented.  The Attorney General’s office says that she didn’t.  Why?  It’s because she has Alzheimer’s disease.

Taken from the article:

[The women’s daughters] also were increasingly concerned that their mother was having sex with Rayhons [the husband] 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 [the wife] was wearing nothing but a robe after a visit from Rayhons, and that staffers “felt sickened by what he was doing to her.”

[One of the daughters] 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?

I really don’t know what to make of the article.  But it’s a fascinating, complex, and sad story about a man going to trial for possibly raping his wife.  With our cultural discussion about sexual consent and a new “Yes means Yes” law in California, this case muddies the waters on whether one can consent to something if you can’t form memories of what you’re doing.

These are a few questions that I had while reading the article, but I’m not going to attempt to answer them because I don’t know where to begin:

  1. Can one consent to something if you don’t remember consenting to it?
  2. If one enjoys the experience but doesn’t remember it, was it still enjoyable?
  3. On the other hand, if you have a bad experience, but you don’t remember it, was it still a bad experience?
  4. Finally, memories are funny things.  Does it matter if something bad happened to you, but you don’t remember it?  In fact, it doesn’t even register in your mind.  For example, suppose that you, the reader, had an extremely traumatizing experience yesterday, but this wasn’t even on the horizon of your mind until I mentioned it.  Does it matter?  (For this last question, I’m leaning toward “yes” but I’m having trouble articulating why.)

Update: 12/14/2014 I was led to this article which gives more insight and definitions of what is legal or not.  It includes legal definitions of competency, but it makes a case that sexual consent for long-term relationships should be taken into account.  This, of course, is not a catch-all suggesting that any long-term relationship makes the sex consensual.  One looks at past practices of the relationship involved and if the past practices were consensual and present practices are similar to past practices, then present practices may be consensual too.  Again, this makes the case murky, but it does clarify what consent should be about.

About shaunmiller

I have just completed a visiting position as an assistant professor at Dalhousie University. My ideas are not associated with my employer; they are expressions of my own thoughts and ideas. Some of them are just musings while others could be serious discussions that could turn into a bigger project. Besides philosophy, I enjoy martial arts (Kuk Sool Won), playing my violin, enjoying coffee around town, and experimenting with new food.
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2 Responses to Sexual Consent and Memory

  1. thekillerj says:

    You just gave me a discussion point for my next few groups. Mental retardation and being super drunk make it so sex isn’t consensual, as they are types of “incapacitation.” Is memory loss a type of incapacitation? Maybe. Since she has memory loss, but actively wants sex in the moment (assuming that’s true), is she not able to get her own needs met? What about her desire for sex in the moment even if she doesn’t remember it later? Interesting stuff.

  2. Pingback: Let’s See What’s in the News Today (May 4, 2015) | Shaun Miller's Ideas

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