Rayhons: Rape and Dementia On Trial

Iowa may have been the first state to tackle a tough aging issue. It most assuredly will not be the last.

After a two week gut-wrenching trial, an Iowa jury found Henry Rayhons, a 78 year old retired farmer and former legislator, not guilty of sexual assault of his wife, who suffered from dementia.

The state had accused Mr. Rayhons of rape solely on the theory that his wife lacked the mental capacity to consent. There was no allegation of force, nor was there an allegation that she had ever said “no.” Instead, the state alleged that she could not have said “yes” because she suffered from dementia.

That was a pretty steep hill for the state to climb. Most types of dementia involve a gradual decline in mental ability and memory. That does not necessarily correlate to a person’s ability to make decisions about her health or her desire for intimacy.

Every adult is legally presumed to have capacity. It is only when a court makes a judicial finding of incapacity that a person loses that presumption. Even then, the court has to decide if the person has partial or full incapacity, and what rights should be taken away. The court may take away certain rights (such as the right to contract) but may leave the person with other rights (such as the right to vote).

What has not been on the radar for most states is making a determination about a person’s capacity to consent to a sexual event. If a judge decides a person lacks capacity to consent, it seems logical that the judge would take away that person’s right to consent.

The Iowa case may not be the guiding beacon that some had sought. Mr. Rayhons raised several defenses: no intimate contact occurred, the doctor’s note that Mrs. Rayhons lacked capacity to consent was a footnote and not a medical conclusion, Mrs. Rayhons’ poor memory did not translate to incapacity to consent. The jury’s verdict of “not guilty” could have been based on any or all of these defenses, or it could have simply decided that the Iowa wasn’t ready to lead the charge by finding this man guilty in this case.

Whatever. Iowa started this conversation, and now the rest of us have to finish it.