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When Do We Lose The Capacity To Love?

It is common for defendants to seek a change of venue when they are afraid that pretrial publicity has tainted the jury pool. This is particularly true when the trial involves a notorious or salacious alleged sex crime.

But when a prosecutor in such a case wants to move the trial away from the site of the purported crime, something is seriously wrong with the government’s case.

That is exactly what is happening in Iowa in the case of Henry Rayhons, a 78-year-old former state legislator charged with illegally having sexual contact with his wife. The state attorney general’s office sought to move Rayhons’ trial to another county, away from Rayhons’ hometown, in search of what it saw as an impartial jury. A judge denied the request, and the trial began yesterday.

From a legal standpoint, the basic issue in this case is: When does an Alzheimer’s patient lose the ability to consent to sex? But on a more human, practical level, the question is: When does a patient lose the ability to love?

Henry and Donna Rayhons wed in 2007, the second marriage for each of them. Donna Rayhons died last year of complications from Alzheimer’s disease. One week after her death, her husband was arrested on the charge of raping her; he pleaded not guilty.

It is undisputed that before her illness, and even into its early stages, Donna loved her second husband. By all appearances, they were physically as well as emotionally close. In the sensitive world of blended families, according to reporting by Bloomberg, things seemed to go reasonably well, too.

That lasted until Donna’s daughters from her first marriage began to feel that they were losing their mother to her disease and that her relatively new husband wasn’t helping matters. What ensued seems to have been a classic battle for control of a person whose capacity steadily diminished, a tug-of-war among various loved ones who believed they knew best. Rayhons opposed moving his wife to a nursing home, and he says that his access to his wife was increasingly restricted. One of Donna’s daughters successfully petitioned to become her mother’s temporary legal guardian, largely out of concern that Rayhons was acting inappropriately.

But as several geriatrics experts told Bloomberg, and will probably testify if the case proceeds, diminished capacity does not equal zero capacity. Nothing that has come to light so far indicates that Donna Rayhons feared or wished to avoid contact with her husband. There appears to be no physical evidence that any sex at all actually took place on the particular night of the alleged crime. Under cagey and deceptive questioning from an investigator, the defendant conceded that it might have, but later said that interview was taken out of context.

Sex between a husband and a wife is not a crime unless one of the partners doesn’t want it, or is incapable of knowing whether he or she wants it. Yet incapacity in this case is far from clear. A geriatric psychiatrist who spoke to Bloomberg likened the desire for intimacy to the desire for food. You need not necessarily remember the name of the person providing it to know that you want it at that moment. Elizabeth Edgerly, a clinical psychologist who serves as chief program officer for the Alzheimer’s Association, told The Associated Press, “For most people with dementia, even long into the disease, they take comfort in being with people who love them.”

A family member’s diminished capacity can put strains on any family, blended or otherwise. But a case like Rayhons’, where the state contends that a previously consenting spouse could no longer legally acquiesce to sex, is exceedingly rare. Aside from the sensitivity of applying prosecutorial discretion in the most intimate of family matters, part of the problem is that capacity is not a case of all or nothing; not only does a person not lose capacity all at once, but a person’s lucidity can vary from day to day, and even moment to moment. Prosecutors are faced with not only proving sexual contact between Rayhons and his wife on the date in question, but that Donna was incapable of consenting to such contact at the time it occurred. That task will be far from simple.

This case is a sad example of family conflict made much sadder by what may have been a hasty decision by the state to bring charges against Rayhons after hearing only the side of the story presented by his wife’s daughters, who surely felt that their mother needed protection, but who may not have been correct in thinking so. The state’s decision may also have been influenced by concern that refusing to bring such charges against a then-incumbent state legislator could be construed as favoritism. (Rayhons had served nine consecutive two-year terms in the state House of Representatives; he withdrew from the election that would have made his tenth shortly before his arrest.) Now, however, prosecutors are so concerned that the alleged perpetrator’s neighbors will see this case as a gratuitous intrusion on a married couple’s last days together that they have no chance of winning a conviction.

The prosecution is probably right, but not because the potential jurors are the defendant’s neighbors. They are right because most fair-minded people will see that one of the last things anyone should be forced to give up is the capacity to love and be loved by those closest to them.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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