Bioethics Discussion Blog: A husband having sex with his now mentally and physically incapacitated wife: Is it ethical and is it even legal?

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Thursday, June 24, 2010

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.

12 Comments:

At Saturday, June 26, 2010 9:54:00 AM, Anonymous medrecgal said...

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.

 
At Sunday, June 27, 2010 6:09:00 PM, Blogger FridaWrites said...

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.

 
At Sunday, June 27, 2010 7:46:00 PM, Blogger FridaWrites said...

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.

 
At Tuesday, June 29, 2010 11:58:00 AM, Anonymous Anonymous said...

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.

 
At Wednesday, June 30, 2010 7:27:00 PM, Blogger Maurice Bernstein, M.D. said...

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.

 
At Thursday, July 01, 2010 3:48:00 PM, Blogger FridaWrites said...

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.

 
At Saturday, July 03, 2010 5:35:00 PM, Anonymous Anonymous said...

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.

 
At Saturday, July 03, 2010 6:48:00 PM, Blogger Maurice Bernstein, M.D. said...

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.

 
At Thursday, July 08, 2010 3:47:00 PM, Blogger amyfaye said...

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

 
At Friday, November 12, 2010 2:03:00 PM, Anonymous Anonymous said...

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.

 
At Tuesday, February 15, 2011 8:49:00 AM, Blogger Striker 6 said...

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.

 
At Tuesday, February 15, 2011 9:40:00 AM, Blogger Maurice Bernstein, M.D. said...

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.

 

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