Over three hundred years ago, Rene Descartes observed that we know we exist because we are aware of the fact we are pondering the question. But he took pains to point out—that as much is all we can know for sure. We can’t be certain the whole rest of the world, including all the people in it, aren’t just a phantasmagorically grand illusion (even as he didn’t think as much was true, because why would God be so cruel?). I think, therefore I am; that is all I can know for sure.

Modern science has partially proved and extended this Cartesian reductionism, empirically showing that we are only ever aware of a slight proportion of what our minds are consumed with thinking. Consciousness comprises only a small part of our neural activity. We know we exist because we can think about existing, but know almost nothing of anything else we might be thinking outside of our conscious thoughts, and our subconscious thoughts comprise the vast majority of our thinking.   It hardly needs remarking that if we know almost nothing of what we are thinking, we can hardly be expected to know what others think, or if in fact others actually exist.   Yet an assumption that we have the ability to ascertain the thoughts of others forms the foundation of sexual assault law and jurisprudence as it has developed over the last half century in the West.

Sexual activity is okay, or not, depending on the consent, of the people engaging in it. And each party must guess at the other party’s consent. If either party is deemed to have ignored the lack of willingness of the other and has proceeded to engage them sexually, then today’s jurisprudence provides that a sexual assault of some sort occurred.   Failing to successfully read another person’s mind in the boudoir or bedroom can yield a life sentence. And let’s not be naïve.   The mind-reading which must take place is that which a man must do of a woman. Men who can’t read the female mind, the vast majority of men one can reasonably presume, risk life and liberty when engaging a woman sexually.

And it is not just casual affairs in which men risk all just for the temporary bliss of intercourse. Even married men who seek relations with their wives—women who had presumably consented to sex with them and only them when they agreed to the marriage—must gain their assent if they are to protect themselves from charges of rape or sexual assault, as Henry Rayhons found out when he was charged with sexual assault for allegedly having sex with his wife.

Henry Rayhons is a 78 year old Iowa farmer and state legislator. After his longtime first wife died, he took up with a widower, Donna Lou. They were each in their early seventies when they married. After a few years together that were by all accounts blissful and loving, Donna Lou was diagnosed with dementia/Alzheimer’s/senility (or whatever the name de jour is for the mental deficiencies that arise wth old age).

Eventually Mrs. Rayhons had to be admitted to a nursing home for full-time care. Her daughters from her first husband made the arrangements. Mr. Rayhon did not like the meddling of the daughters, but went along with them. (I would speculate that one or both of the daughters had Mrs. Rayhons’ power of attorney, not unusual for the adult children of people who remarry late in life, otherwise he could have ignored their suggestions). A part of the care plan devised by the staff at the nursing home and the daughters (but not Mr. Rayhons) provided that Donna Lou was incapable of consenting to sex. (Why exactly the staff needed to worry over whether a nearly 78 year old woman had sex or not doesn’t seem to confound anyone but me. My guess is that it wasn’t the nursing home staff but the daughters who demanded the acknowledgement of her incapacity for consent.) Mr. Rayhons knew of the treatment plan, and maybe (the evidence is sketchy) had sex with his wife anyway. There is no evidence that she objected, or for that matter, even knew it happened. That’s sort of what being mentally incapacitated is all about. But there is no question that she had consented to sex with Mr. Rayhons many times before. They were, after all, married. For all anyone knows, what little part of Mrs. Rayhons’ conscious mind remained was eager for the physical closeness that accompanies sex (which, really, is all that sex for a woman of her age is good for anyway). It could just as well be imagined that Mrs. Rayhons didn’t recognize her husband, and for all she knew was having sex with a stranger. There is no way to know exactly what she was thinking, and not just because such things are philosophically unknowable. At some point a dementia patient won’t even meet Descartes reductionist view that thinking is all we know for sure of being.

Two weeks after the alleged incident, Mrs. Rayhons died. A week later, Mr. Rayhons was indicted for the ordinary litany of nonconsensual sexual contact crimes. The State of Iowa was Johnny-on-the-spot, moving quickly to protect its citizens from this sexually ravenous beast.

Less than two hundred years ago, wives were considered the husband’s property, and not just in the Antebellum South, but also in supposed havens of progressivity like New York. The notion that a husband could rape his wife was so absurd as to not even be within the realm of contemplation. When does property have the right to object to its use? And hadn’t the wife anyway pledged her consent to having sex with her husband as part of the marital transaction?

And ‘transaction’ aptly describes what a marriage was all about. A father owned his daughter until he gave her to her husband. Her sexuality was a valuable commodity, her womb, an asset of the family to be bartered and bargained away for advantage (there are historically some cultural differences as to whether a daughter was overall perceived as a liability or an asset, but all cultures, until recently, have recognized the value of sexual access to fertile females, and rarely left it to a young woman to decide for herself how to use it). Until around the turn of the eighteenth century in the US, wives were practically treated as the husband’s chattel, as his personal property, to do with as he pleased. (As an aside, it is quite remarkable how women romanticize the Antebellum South—their status then was roughly tantamount to that of a moderately well-regarded plantation slave—but such is the nature of the female heart. The popularity of both Gone with the Wind and Fifty Shades of Grey among women is neither unrelated each to the other, nor anomalous. )

The Talmudic Hebrew culture was among the first to afford wives and women a significant, if mainly unofficial status, as a partner, not a property, in marriage. While men could divorce their wives without their assent and wives did not have a reciprocal right, according to Everyman’s Talmud, Hebrew society ensured the inequities that might inhere with such rules were otherwise ameliorated.   That it took so long for western societies to come around to the idea of affording women and wives an equitable footing with men speaks to how overblown is our sense of progress, if nothing else. And to the reality that in the US, the state was initially very weak while the family, customarily headed by the husband, was quite strong. Wives were property when the state wasn’t strong enough to make them full-fledged citizens.

By the fin de siècle, women in the US were rapidly becoming the Talmudic equivalent of men. By World War Two, women had been exercising the right to vote for decades. And only a few more decades later, after the war’s end, Roe v. Wade came along, representing the idea that a woman’s womb was hers to do with as she wished. This was progress of a sorts, even as it destroyed in less than a century thousands of years of the means with which culture had settled sexual relationships between males and females of the H. sapiens species.

Except in the Soviet Union and a few other Eastern bloc countries, it wasn’t until well after the War, roughly about the time of Roe v. Wade, that the West finally recognized the crime of marital rape (Communist Eastern Europe, having stronger and more focused state apparatuses, recognized the crime much earlier—as early as the 1920’s in the Soviet Union). It stood to reason that if a woman had final say over her sexuality as an unmarried woman, that she didn’t give up the right to refuse sex just because she had voluntarily entered a covenant to love, honor and respect, even one whose main purpose was the establishment of an exclusive sexual relationship.

But the right to refuse sex in the marital relationship was of only dubious value. If the husband forced himself on the wife, an accusation of rape was tantamount to a suit for divorce. The recognition of the crime of marital rape by the state was only relevant to crumbling, abusive relationships that the wife wanted to dispense with anyway. Even in Talmudic Hebrew culture women had ways to escape abusive, unhappy marriages. Where we might see progress, others with a more objective perspective of history would see a cyclical rediscovery of well-tempered wisdom.

But poor Henry Rayhons. The new rights afforded to women that extended to women as wives were never meant to destroy a life and the memory of a marriage well lived.   His wife could not have consented to sex in the same way as it is generally assumed a woman might consent to sex. But she wasn’t a drunk college girl getting ravished by horny frat boys either. She had consented to sex with Henry when she married him. She couldn’t have withdrawn or affirmed her consent. She was mentally incapable of doing either.

Hard cases make bad law. Rayhons’ is a hard case. He is not the sort of rapist the law has in mind when it provides a cause of action against forced sex, not even in the context of marital rape. He wasn’t an abusive husband. He just did (maybe) what he and his dying wife had done before as an expression of their love. It certainly had no reproductive repercussions, the main point to established rape law and jurisprudence.

The truth of the matter is that Henry wouldn’t be in the dock except that his new wife had existing daughters who did not care what was the law’s proper intent, but were intent on punishing someone they saw as an interloper in their relationship with their mother. So Henry now has to face the utterly ridiculous prospect that his life will end in ignominy, a convicted rapist for having maybe made love to his dying wife.

Progress, even in the expansion of women’s rights, is not an unmitigated good. Read more about the details here.