A husband having sex with his now mentally and physically incapacitated wife: Is it ethical and is it even legal?
The 29 year old wife, 5 years ago, suffered a very severe traumatic brain injury from an automobile accident and despite long attempts at rehabilitation now lives at home under the attention and care of her husband who must also attend to the care of their own sons from earlier in their marriage. The wife is apparently alert sufficiently to show some response to visual, auditory and tactile stimulation but is unable to talk or communicate any decisions. She is paralyzed, unable to walk or move on her own, incontinent and unable to attend to her own personal care and has required tube feedings.
A few months ago, the wife became pregnant and the pregnancy was terminated by her physicians in her health interest. Despite the husband arguing that he and his wife were in a loving sexual relationship throughout their marriage, that he never divorced and abandoned her after her accident and that he believed based on his experience with her in the past and her current responses that she wanted the loving sexual relationship to continue despite her handicaps, the wife’s family considered the acts of having sex with the incapacitated wife as rape. They notified the police and started legal guardianship proceedings.
You are the ethicist and you are the judge. Were the husband’s sexual actions ethical? Were they, in fact, legal? What facts and what issues would be important to know and consider in answering these questions?
This scenario, as written here, was adapted from a case study “Sexuality and a Severely Brain-Injured Spouse” in the ethics journal “The Hastings Center Report” May-June 2010.http://www.thehastingscenter.org/Publications/HCR/Detail.aspx?id=4656 There are three separate commentaries by ethicists there but I hope my visitors would answer my question here before looking at their responses. ..Maurice.
posted by Maurice Bernstein, M.D. @ 12:03:00 PM
16 comments
16 Comments:
Since the scenario states that they are still married, that would suggest that such sexual encounters would be perfectly legal. Ethical, that would depend on who you ask, I suppose (I'm sure that's why you posted the question). Personally I think that the wife's family is over-reacting and frankly, it's really none of their business. It wouldn't be if they were just a "normal" married couple, and her disability should not change that. He is her primary caregiver, but that does not negate their spousal relationship. (Do they remember "for better or for worse, in sickness and in health"?) From the description it's not like she's so incapacitated that she would derive absolutely nothing from a continued relationship (including the sexual aspect) with her loving husband. I think that denying both of them this part of their former relationship sounds too close to those who think people with disabilities of all sorts are supposed to be completely asexual beings.
It would be entirely different if she responded to these encounters negatively with whatever limited reaction she might still have, but since that doesn't appear to be the case from the description, I see no problem here. It would be far worse if the husband had just given up on their relationship altogether and divorced her. That's not uncommon when a spouse becomes suddenly and permanently disabled.
By law in every state that I know of, it's rape when someone cannot give consent. See RAINN.org, state laws.
Someone who is very severely cognitively disabled, drugged, significantly drunk, or asleep cannot give consent:
http://rainn.org/get-information/types-of-sexual-assault/was-it-rape
It appears he is using her body to gratify himself, and this is not something that seems to be mutual. Legally, it is rape, whether or not he perceived it that way.
Certainly people with disabilities can have consensual sex, but *consent* in a normal cognitive state is key.
By the way, some people with cognitive disabilities can give consent; I don't mean to imply that everyone with developmental disabilities, for example, should be prevented from having relationships, masturbating, or having sex, though often this happens. And to people with physical disabilities too--very often.
I agree with FridaWrites, but just wanted to add that spousal rape is illegal in all 50 countries. Marrying someone does not mean giving up the right to withhold consent.
Let's turn the genders around! Now the HUSBAND was the marital partner who was injured with the same neurologic outcome as in the original scenario. The next part of the story, I will need a little help to create. But it turns out that the wife was discovered (how?) in the act of manipulating the husband's penis in an apparent context of sexual activity and this has been going on repeatedly. The wife admits the sex acts she was performing but states she had been in a loving sexual relationship with her husband and though he was unable to communicate his consent to participate, she knew from throughout the marriage and his current non-verbal responses that he desired to participate. (I would caution from a physiologic basis for assuming some degree of erection represented consent or pleasure.) Now, would the wife's family or indeed the husband's family have a basis for calling the cops and sending the case for legal guardianship proceedings or would you expect that they would even do that?
Again, I think it is important that we consider the ethics and legality in this reverse gender scenario. What are the differences and what are the similar aspects of making a decision about the wife's behavior?
..Maurice.
Blogger deleted my comment, I think.
It's still illegal as far as I know. And erection (or female arousal) is a physiologic response that does not imply consent. People can and do have erections and orgasms during rape.
As far as ethical goes, would other people be okay if they were that disabled having their spouse perform sexual acts on them? I would not be, but I really don't know if others would be. I am assuming there may be some gender difference. However, there's still a bit of hypothetical--that we think we would want to consent doesn't mean that we would at the time.
One big problem is that we as outsiders (this includes family members) don't know what someone's sexual relationship was.
I think there's an ethical question here that's being overlooked: the possibility of harm to the husband.
he's grieving for a person who is not only not dead but is physically present and arguably in need of and aware of his physical affection.
nobody would blame him if he kissed her, held her hand or caressed her body in a non sexual way, and while it may be technically 'rape' for him to have sex without her consent, the question of intent must be considered.
perhaps he was less interested in his own sexual pleasure than he was carried away in expressing a confusing mix of love and grief; attempting to make a real connection with his wife in the face of her confounding absence.
while it seems reasonable to question and perhaps manage his sexual conduct, i think it's cruel and unnecessary to call it 'rape' and involve the police.
Anonymous from today raises a good point. Just as it may be impossible to access the consent or dissent of the wife, it may be likewise impossible to fully document and prove the intent of the husband's behavior. In such a disaster of the life of a family, it seems to be morally wrong to take on the role of an arbitrary advocate for the wife ("this was a woman who couldn't give any consent for sex") or judge ("unconsented sex in marriage is rape")..Maurice.
If I am ever handicapped I would hope that my husband would stick by me and I would want him to still be sexually satisfied with me. This husband shows his love for his wife by caring for her. If they had a healthy relationship before she was injured. I see his wanting to have sex with her as loving not as rape. I believe this man should not be considered criminal
The genders involved would be irrelevent. The same law applies to both. Legally you have to have the ability to consent. If you can't it is rape. Being married doesn't turn it into a legal act. Spouses also have the right to consent or deny as well.
Initially I would inform the spouse of why it is illegal. They might not understand why it is against the law especially when married. I would also offer therapy for them to cope with their recent life changes. If they don't comply after being advised I would then proceed criminally.
I'll be writing a paper on this topic soon for a bioethics course. As of now I haven't fully considered the scenario, but on first inspection I notice that the scenario depends heavily on the amount of disability. Is the wife is brain dead/minimally conscious OR is her condition more along the lines of "locked in syndrome?"
Assuming she is not able to comprehend the act of intercourse then it would be unethical since someone who is not cognitively capable cannot provide consent thus constituting rape. We cannot interfere with an individual's autonomy even if they are cognitively disabled without sufficient reason. The husband's need for gratification and to express his love in a sexual manner to his (dead) wife does not constitute sufficient reason in my opinion. That being said any legal proceedings should take into account the situation as I don't believe this act of rape is on par with more traditional rape scenarios; indeed her reaction to intercourse may even be positive. What's important to remember is the distinction between conscious consent and simple physiological human responses. Even with a positive physiological response conscious consent would still be missing in the situation.
Striker 6 and other visitors, you may be interested in reading the many thoughtful and analytic comments of participants on Medpedia who have answered the same question from this thread which I posted there. There are many nuances to the issue and these are rather detailed dissected out by the contributors to the answer on Medpedia. ..Maurice.
If the husband would have left his wife in a nursing home to die...the in-laws would have something to say then too. In my opinion, in their eyes (to the in-laws) he's gonna lose either way. He still loves his wife even though she's incapacitated, yet I didn't read anywhere in the scenario where her parents are taking care of her...they just want to meddle into his/her business.
I would say the husband is fine. I would expect my husbaand to still make love to me if I became disabled. I have actually given him pre-concent and he to me. When people are in love, one of the ways humans show that love is sex. They were in a loving relationship before her accident and still in a loving relationship after. It's for better or worse. A husband, just as a wife does, has certian obligations to his wife. Sex is generally a pretty big deal in a loving relationship and one of the most common ways to show love for one another. Why would anyone step in and try to take that from a loving couple? Think of the wife's feelings and how you would feel if you were in an accident and your spouse were to abandon you in the bedroom. Wouldn't that make you feel pretty unloved and undesired and unwanted?
An "advance directive" as described by Ginnie is certainly the right way to go to avoid any moral or legal confusion about what the husband or wife intended and desired. ..Maurice.
Physiological responses to sensory inputs are “positive” or “negative” based upon the interpretation of the owner of the dense organs. Responses can be measured by a societal standard as well as by the owner of the senses. Which bundle of rights are permitted or ought to prevail, those of the community, the individual, or some mix of the two? What was good and desirable before will not automatically be so later. So, a contemporaneous measurement is required. Assuming a condition of optimal emotional well-being, physiological health, and overall wellness for the disabled is desirable, then it seems the rights of the disabled ought to prevail. The question then seems to be a matter of ownership of the senses (right to control sensory inputs and standards thereto). Arguably, the disabled cannot decide. Nevertheless, the community can easily measure and evaluate physiological responses in the disabled, and improvements or deterioration of wellbeing over time as proxy of the disabled person’s “consent.” Remove the sexual aspect for a moment. Assume a breathing machine, a massage therapist’s touch, and a TENS unit (small electrical impulses for stimulation of muscle tissue). Exploring each and considering community responses, a risk of community standard problems, with “yes, but” and “what if” standing in the way of the stated goal, and increasing the risk of unpinning the foundation of energy supporting the disabled person’s care. Add a gender role change to the equation; does it weigh differently if the disabled is a man with the ability (and an apparent physiological need) to ejaculate? The imperfections of life, the frailty or the body, and the eventual death of the physical body cannot yet be regulated in and out of existence or societally approved condition st every level of detail. If this discussion suggests we ought to try, then two points: 1) The community has been given and must hold control over all rights, and 2). the individual must, in deference and conformity with the often unknowable standards of the rights holder, seek implicit and explicit permissions at all levels of their personal being - or at least consider it above all else, including the rights of self-hood. If 1 & 2 are true, then “unalienable rights”, by exclusion of 1 & 2, carry a certain falsehood. Leaping forward to my view of the larger problem, that of governance, I see the “chicken and the egg” or if treating the symptom and not the disease. I think the egg, in this case, comes first: The overdue reconstruction of governance through a strategy of proxy reform hatches the “chicken” in this case, and frees up energy to do the better work, such as preventing disabling accidents. . (Ext 7902)
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