by Sherry F. Colb
In my Verdict column for this week, I talk about a fascinating proposal by Professor Alexander A. Boni-Saenz that the law recognize sexual advance directives for people who anticipate future persistent incompetency to consent to sex for later occasions in which they are living in institutional settings that might otherwise try to prevent sexual activity among the people who live there. I propose that although such directives might be useful to people in overcoming nursing home resistance to sexual lives for their patients, the directives should not be necessary, because the standard for "competency" for consent to sex should be low enough that people with Alzheimer's or other cognitive impairments would not necessarily be deemed incompetent to consent to sex. I use, among other things, an analogy to the Curious Case of Benjamin Button to illustrate my views.
In this post, I want to address an area of potential advance directives that Professor Boni-Saenz puts to one side for purposes of his article: cases in which the person is anticipating a brief (not persistent) period of incompetency to consent to sex and crucially, unlike the cases that Boni-Saenz supports, the person in the state of incompetency truly is unable to give any kind of volitional indication that he or she is interested in having or willing to engage in sexual activity. I have in mind the case of the person who says to his partner "you may have sex with me while I am asleep or unconscious." Boni-Saenz regards the ability to consent in advance to such interactions as less important than the ability to consent in advance to sex during extended periods of impairment, because a refusal to recognize the former right will not completely deprive the person involved of all sexual contact. If, in other words, one must be awake to consent to sex, that requirement will leave in place most opportunities for sexual interaction.
Nonetheless, it is worth asking whether, as a matter of libertarianism, we ought to allow people to consent in advance to sexual activity in which they will not be capable of indicating volition at the relevant time. Should people be able to say "I want my spouse to be able to initiate sex with me while I am asleep and therefore unable to consent?" I tend to agree with Boni-Saenz that it is not terribly important that people have this right (and I also agree with him that if people make private arrangements to engage in such activity, no one is likely to bring any criminal prosecution against them in any event). Yet I wonder whether, for some people, the idea of having sex while unconscious is appealing to them, and I am not sure I want to deprive them of the ability to fulfill their desires just because they could simply wait until they are awake to have sex. Perhaps for them, having sex while unconscious is very important and expresses their level of intense trust in their partners. More mundanely, if one spouse says to another spouse, "any time during the night tonight that you want to have sex with me, just go ahead and I'll be happy to be woken up to that," doesn't that permission take the "sleeping sex" outside the category of sexual assault?
The sexual advance directives that Boni-Saenz discusses are arguably both easier and more difficult than these sorts of cases. The people who anticipate becoming impaired are in a sense becoming different people who may or may not share the values and wishes of their earlier incarnations. For that reason, we might be skeptical about placing much or any weight on what the competent and earlier version of the consenting person had to say about the matter. The person who says "tonight, while I'm sleeping, you can initiate sex," on the other hand, is the same person as the one who is sleeping and will return to being precisely the same person the next morning, when he or she can affirm that what happened during the night was exactly what he or she wanted. On the other hand, the impaired person who indicates volitionally that he or she wishes to have sex right now is giving contemporaneous consent, whereas the unconscious person--however identical to the person he or she was a few hours earlier--is simply unable to give contemporaneous consent.
So the question becomes "how important is contemporaneous consent"? As a general matter, it seems very important. We do not want to suggest that a person--by showing interest in a partner at Time 1--necessarily consents to having sex with him at Time 2. Such advance permissions ought to be explicit and clear, if we are to honor them, or else we risk a situation like the marital rape exemption, where marriage itself is understood as an advance directive that consents to all sex between the spouses while married. And we may ultimately conclude that access to sex while one is unconscious or otherwise temporarily impaired is simply not important enough to protect in the face of competing interests in having contemporaneous consent. My inclination would be a compromise, wherein a person could consent to sex while unconscious, but it would have to be explicit and clear, and it would have to apply to a particular occasion and be informed as to which sexual acts might be welcome. An across-the-board "you can always initiate sex while I'm sleeping" simply would not do, partly because the speaker might change his or her mind and should not be in a position where the default setting is consent-while-unconscious, and he or she has to expressly revoke the across-the-board consent.
I ultimately agree with Boni-Saenz that protecting the sexual lives of people with persistent cognitive impairments is more important than protecting the kinky wishes of people who think it might be cool to have sex while one is unconscious. In the interests of sexual freedom, however, I would allow a carefully limited space for advance consent to unconscious sex.