by Sherry F. Colb
In my Verdict column for this week, I discuss an Iowa case involving a man arrested for sexual assault for having had sex with his wife, a woman who was suffering from Alzheimer's disease at the time (she has now died of complications from the disease). In the column, I take up the question of fairness to the defendant as well as the larger issue of whether we ought to be protecting Alzheimer's patients from having what may in fact be consensual sex, just because their mental capacities are diminished.
In this post, I want to raise an uncomfortable possibility regarding how the law and our society treat people with a diminished mental capacity. I think it is possible that rather than seeking to protect the autonomy of the vulnerable (and their corresponding interest in not being violated when they are in a diminished state), laws and policies may instead (or in addition) reflect a visceral sense of disgust. Many of us might find the prospect of sexual expression among impaired adults disgusting and might therefore be inclined to declare such people disqualified from having sex in virtue of their supposed incapacity to give consent.
How might disgust operate in this fashion? Disgust, while not invariably so, can often be a morality-related emotion. When we feel disgust about a prospective activity, that disgust can sometimes signal to us a moral (and not merely a physiological) revulsion. To give one example, I know a number of people who decided to stop consuming animal products when they witnessed the outrageous cruelty to which animals are routinely subjected in the process of turning their flesh and their bodily secretions (such as dairy milk and eggs) into products for human consumption. People's experiences witnessing such atrocities gave rise to a visceral disgust, and that disgust helped inform their understanding that consuming animal-derived products is unjust. A purely theoretical discussion of the ethics of instrumentalizing the lives of non-human animals might not have been as powerful and effective. Similarly, people who witness atrocities against other humans sometimes experience the urge to vomit, quite apart from their intellectual assessment of whether what they have seen "counts" as "torture" or some other categorically immoral act.
Disgust can often serve as a helpful guide to our moral compasses, particularly if we have not already become inured to witnessing injustice (as people who work inside slaughterhouses and people who regularly commit violence against other humans can sometimes become). but disgust can sometimes signal something very different, and it is risky to assume, without some cognitive reflection, that what inspires disgust must necessarily be a morally questionable activity. To give a simple example, most of us would feel some disgust at the prospect of eating a piece of fruit that is covered in mold and/or is foul-smelling. Yet there is nothing morally problematic about eating a rotting fruit. We have likely evolved to feel disgusted in response to rotting fruit only because such disgust deters us from eating something that would introduce illness-causing pathogens into our systems. If a particular person could benefit form eating a rotting fruit for some reason, it would therefore be silly for anyone to object to that consumption on moral grounds.
Yet when it comes to the subject of sex and sexual expression, people can feel disgust about all sorts of couplings, including those that involve individuals who are considered unattractive. And an uncritical view of this disgust as morally well-founded could yield very unjust consequences. I still recall attending a Paul Simon concert at Jones Beach about 15 years ago and hearing someone say, after viewing a very heavy person in a revealing swimsuit, that "people who look like that should not be allowed to dress in that way." The speaker had a clear moral tone to her voice, implying that the scantily clad overweight person had somehow violated the rights of others by dressing as he or she did.
When confronting the reality that elderly people have sex lives, many non-elderly people may feel disgust and may prefer to pretend that the elderly stop having sex when they reach an age at which their sex lives would nauseate the people around them. To my knowledge, no one is seeking to outlaw sexual relations between elderly people. However, the Alzheimer's patient is in some ways an extreme case of how many people view the elderly more generally. And most notably, the Alzheimer's patient may be willing to express her sexual urges without the inhibitions that social conventions ordinarily inspire. Therefore, if a person with Alzheimer's disease is feeling sexual or having sexual experiences, she is unlike to "spare" the rest of us the details. That is where disgust may come in because denial has failed us -- we suddently cannot escape the reality of geriatric sexuality.
The way in which the Iowa law is written may lend support to this theory. It provides that if two people are married and they live together, then the "suffering from a mental defect or incapacity" portion of the statute does not appear to apply. That is, if two people are married and living together, (where other people are, incidentally, less likely to be exposed to their sexuality), then one of them may have Alzheimer's (and may thus be just as much a sufferer of a mental defect or incapacity as her nursing-home-resident analogue) and yet the law does not classify their sexual interactions as rape. It is when they are living apart -- when other people may be "forced" to know about their sexual liaisons -- that the law steps in (though the law admittedly does not reference "disgust" and is not perfectly tailored to this objective).
I recogznie that what I suggest here is just a theory. Yet is seems, based on the infrequency with which such conduct is actually prosecuted, that the law serves some function other than to protect the vulnerable from exploitation. I would suggest that what it does is police the boundaries of morality in a manner that expresses the disgust of the population rather than a true concern for the bodily integrity of those with a diminished capacity. If I am right, then we (and particularly those of us who work with elderly populations in hospitals and nursing homes) would do well to think carefully about distinguishing between meeting our own need (to deny something that may disgust us) and meeting the needs of the populations of whom we purport to be taking care.