An interesting case is reported in the most recent issue of the Hastings Center Report. Mrs Z, is a 29 year-old woman who was released into her husband’s carefollowing a traumatic brain injury. She is in a minimally conscious state (MCI), a state of severely impaired consciousness. MCI cases cover a range of cognitive deficits; Mrs Z seems to be at the lower end of cognitive functioning. She is unable to speak and requires 24 hour care, provided by her husband (who is also the guardian of their 4 year-old twins).
Recently she was found to be suffering abdominal pain. An examination revealed that she was pregnant (the pregnancy was terminated for health reasons). Mrs Z’s brothers have now applied for guardianship of her, and have asked police to file rape charges against her husband. Mr Z has replied that she would have wanted to continue a physical relationship with him, and
that he is still married to her. He seems to suggest that he will continue to have a sexual relationship with her if she remains in his care.
The law used to treat marriage as implying consent to sex. Rightly, it now recognizes that rape can occur within marriage. We therefore cannot simply conclude that an ongoing sexual relationship is appropriate due to the fact that the participants are married to each other. Consent cannot be presumed. However, Mrs Z cannot consent to individual sexual acts, not, at least, by ordinary standards of consent.
Some of the commentators on the case in the HCR article note that Mrs Z could give some kind of behavioural analogue to consent or refusal (she can show signs of distress and withdraw, for instance). Note, however, that we do not regard the consent of children as valid: we think that because they cannot understand the nature and significance of the act, they cannot
consent to it. Clearly, though, Mrs Z cannot understand the nature and significance of sexual intercourse any longer. Does this entail that her consent is not valid?
I think we ought to consider the rationale for the requirement that people be able to give informed consent to sexual activity. A
child’s agreeing to sex does not constitute consent because there is a reasonable probability that she will be harmed psychologically by what she agrees to; there will come a time at which she has a proper understanding of the significance of the act, and when she does she may be harmed by the knowledge of her past actions. Obviously, though, Mrs Z is extremely unlikely
ever to return to a state in which she is able to understand the significance of the action. She is therefore unable to be traumatised by the actions (assuming, of course, she is a willing participant).
Clearly, though, the claim that if someone will be unable ever to understand the further significance of what they do, a behavioural analogue of consent is sufficient, is a claim that seems to get us into trouble with other cases. What of the child (or the adult) who is permanently cognitively disabled? What of animals? I think there are good grounds for banning sexual
relationships with people in the former category because the probability of their exploitation is too high. Even though individual cases in which no one is wronged are possible, we ought to keep such acts illegal on consequentialist
grounds. But when there is a prior loving relationship, and a continuing commitment, as in the case of Mr Z and his wife, it seems that however icky it may seem to us, a sexual relationship should not be subject to criminal
sanction.