I waited a short while before answering this question because the issues involved are more difficult than usual. First, let me address the legal issue because, uncharacteristically, it is the easier one. Under most rape laws, it is considered a felony Rape to have sex with anyone who is physically or mentally incapable of giving consent or refusal. While I doubt the law was ever intended to cover this exact situation, and the legislative intent would certainly be argued by any competent defense lawyer, it is still rape according to "the letter of the law." As a judge, however, I would have to take many things into consideration before ruling, and I will defer that ruling until the end of my answer.

On the other hand, the husband had a clear right to authorize the termination of his wife's pregnancy as the surrogate decision maker in this situation. This remains unchanged unless he is removed by the court but, even if he were to be removed now, an "ex post facto" determination against the husband would be unconstitutional.

The more difficult question is whether the husband's actions involving sexual activity with his wife were ethical. While my "knee jerk" reaction on first reading is to feel it to be totally unethical, on re-reading and examination of this issue, the answer is not as clear. Let's look at some facts.

First, the facts state that the wife, while being unable to talk or communicate her decisions, was none the less "apparently alert sufficiently to show some response to visual, auditory and tactile stimulation." If true, she may have demonstrated some degree of physical pleasure to her husband during sexual activity which, if present, might be interpreted as consent. This, however, does not answer the questions raised by the first instance of sexual activity; i.e. before any demonstration of pleasure could be seen.

We must next examine the "totality" of the circumstances of the husband's actions, and not take them in isolation. What we see here is a young man with a wife whom he loves and cares for sufficiently that he has not left her, divorced her, or even (to our knowledge) gone elsewhere for sexual gratification - an action which most of us would find easy to excuse. Instead, he has stayed and cared for her himself, on a daily basis, while still working and caring for their children. We all know that it is a situation which is difficult at best and nearly impossible at worst, yet he's been doing it for more than five years.

Next, we come to his argument that they had a long and loving sexual relationship prior to her accident, which she would want to continue if she could express herself. Clearly, no one knows if this is true except him, but given his actions after the accident, I would tend to find his statements credible.

What all of this leaves are four possibilities: 1) his assessment is correct and it is something she would have wanted (and perhaps even enjoys now but cannot express it), 2) she is sufficiently physically and mentally incapacitated that she is unaware of what is happening, 3) she is aware of what he is doing, but unable to express her refusal and, 4) she is aware, doesn't particularly like it, but since it takes only a few minutes a few times per week, is "OK" with it because it keeps her and the family together. Since there is no way to reasonably assign a probability to any one scenario, let's assume they are all equally likely. That means we can assign a probability of 25% to each. In that case, there is a 75% probability that the wife either enjoys his actions, is "OK" with them, or is totally unaware. In other words, there is a 75% probability that he is doing no harm.

Suppose we look at the other 25%, though; she doesn't like it, and would not give her consent to it if she could make her refusal known. In that case, only, would it be unethical and even here the ethics would be vague, because when examined in the totality of the situation, there is, arguably, more good than harm being done, by maintaining her at home and keeping the family together.

For all of the above reasons, I believe that his actions, while questionable at many levels, do not rise to the level of unethical. Moreover, although his actions meet the technical definition of "rape" from a legal perspective, as a judge I would find that the 75% probability I calculated earlier would preclude my finding him guilty of rape "beyond a reasonable doubt."

I doubt this will be a "popular" answer, and some of it even makes me uncomfortable, but absent any other reasoning, it is the way I would rule.

Maurice,
Merely being a surrogate decision maker for health care does not automatically confer any other power or attorney. In the case we are discussing, however, being the surrogate is only a single factor in my answer. Additionally, while being a medical surrogate decision maker confers no financial power or attorney, the husband would have that as the spouse unless his wife gave such a power of attorney to another person prior to becoming incapacitated. None of that, however, is related to his authority, the legality, or the ethics of his sexual activity. That is an issue apart from any legal power of attorney.

Because of the complexity of the issues here, I really felt that the only appropriate approach was to consider the "totality of the circumstances;" an approach frequently taken by courts when the individual elements of a situation do not lend themselves to a straight forward solution. Here, what I was essentially attempting to do was to first isolate the individual elements, then after reaching the conclusion that there was insufficient information from which to draw a conclusion, aggregate them so that the whole picture could be considered. In short, what action on the husband's part would provide the greatest good for the greatest number of people involved while doing the least harm.

Using my analysis, it would seem that the probability of the husband causing harm by his sexual activity with his wife was relative small, while the probability of it being a stabilizing factor for him, his wife and their children was much greater, hence my final answer. Bear in mind that given what we know, I could only offer a reasoned opinion but recognize that the opposite opinion, if reached with a reasoned approach, and not an emotional or moral one, may be equally valid.

Finally, as for a conflict of interest, if anything I believe the husband is acting against any obvious personal interest. If he only considered his own interests, he would have placed her in a nursing facility, divorced her, found another partner and continued to raise his children in a more conventional environment. Instead, he ignored his own best interest and perhaps that of the children, and has placed her before theirs.

Eric, by the way, if you read the text of original case, you might have found (apparently you didn't) an editorial error which casts an entirely ethical/legal face to the story. I found the error (though not even considered by the three groups of commentators) and have reported it to the publication editor. He admitted the error in a return e-mail.

In the original story, the family had 4 year old twins! 5 years ago the wife had the accident. That would start her pregnancy with the twins after the accident! If those were the facts and without any concern of the parties about that sexual act and associated pregnancy, why should the wife's family make a legal fuss about her more recent pregnancy. Doesn't this change the ethics and If, as a judge, you were considering the family's current legal requests, in view of the past history, wouldn't you just throw the case out?

Notice, in my presentation of the case here, I created the ethical/issue by having the children born prior to the accident. This editing error is a perfect example of how important the facts are in any decision about the ethics or the law of acts or actions. ..Maurice.

Before signing off today, I am still interested in a response by those Medpedia readers who believe that under any circumstances of the mental state of the woman (alert, stuperous or comatose) or relationship to the male, as long as permission for sex was not given by the woman, unconsented sex is rape and there is no excuse and no extenuating factors or circumstances the man can give to change that conclusion. How can this absolute view be supported? ..Maurice.

"It's really none of their business": this suggestion came from a female visitor to my Bioethics Discussion Blog where I had posted the very same adapted scenario which I put up on Medpedia. I thought it would be interesting to post her comment here since it goes along with Wayne's alternative interpretation "He is claiming that based on a deep and longstanding relationship he is able to interpret some of her current responses as decisions. If the husband is correct, then the efforts of the state (or the wife’s family) to deprive her of intimacy she wants is the unethical position that deprives her of human dignity."

My blog visitor wrote: "Since the scenario states that they are still married, that would suggest that such sexual encounters would be perfectly legal. Ethical, that would depend on who you ask, I suppose (I'm sure that's why you posted the question). Personally I think that the wife's family is over-reacting and frankly, it's really none of their business. It wouldn't be if they were just a "normal" married couple, and her disability should not change that. He is her primary caregiver, but that does not negate their spousal relationship. (Do they remember "for better or for worse, in sickness and in health"?) From the description it's not like she's so incapacitated that she would derive absolutely nothing from a continued relationship (including the sexual aspect) with her loving husband. I think that denying both of them this part of their former relationship sounds too close to those who think people with disabilities of all sorts are supposed to be completely asexual beings.

It would be entirely different if she responded to these encounters negatively with whatever limited reaction she might still have, but since that doesn't appear to be the case from the description, I see no problem here. It would be far worse if the husband had just given up on their relationship altogether and divorced her. That's not uncommon when a spouse becomes suddenly and permanently disabled."

An interesting sub-topic follows her comment: "I think that denying both of them this part of their former relationship sounds too close to those who think people with disabilities of all sorts are supposed to be completely asexual beings." But suppose the wife's severe brain injury did, in fact, leave her in a permanent state without any interest or feeling for a sexual experience and wouldn't recognize any sexual activity on the part of her husband as anything sexual. If that was the case, should that state of brain function of this injured wife deny or prevent or make illegal customary sexual pleasing activity on the part of the devoted husband? Which creates the illegality or even unethical behavior:on the part of the husband a "no" response by the wife or the wife's total ignorance of the meaning and intent or nature of what the husband is doing or both? If the latter of the two possibilities, the question is why illegal, why unethical? Might there be some wives, without brain injury, who have no interest in sex but allow their husbands to find their own value or pleasure in sexual intercourse? Just some further issues to consider. ..Maurice.

It seems reading the comments here and in the Hastings Center Report, there is a particular need to find a way to establish whether the sexual activity was consensual. What if, relative to the patient's mental/neurologic condition, there is no method available that could clearly provide and assure a valid answer. What then? Does the absence of a method nevertheless bias a conclusion against the husband's explanation? Might it be easier and more reliable to investigate the husband's description of his observations and interpretation of the observations, how he explains previous non-related family or work issues, evidence of past beneficent behavior toward his wife and family and how he would handle the sex activity issue if he knew his wife rejected it or would be cognitively unaware of what was going on with the activity. Just some suggestions.. ..Maurice.

First, let me congratulate everyone participating on this Question for producing such a great and thoughtful discussion. Second, I referred the link to this Medpedia question to a male physician whom I personally know and who apparently read the comments here but was not able to post here. I was informed as to what he wanted to write and the following was his response:

"The females are certainly eager to find that the husband should give up sexual activity with his
wife. I suspect that, if they could accomplish their desire to withhold any sex
from him, he would be gone to another partner before long.

Michael"

That should stimulate some defense by the women writing here!

Third, I don't want the discussion to this dilemma to end without another consideration and a complete twist to the scenario, one which I can't find was yet discussed here. Here it is:
Let's turn the genders around! Now the HUSBAND was the marital partner who was injured with the same neurologic outcome as in the original scenario. The next part of the story, I will need a little help to create. But it turns out that the wife was discovered (how?) in the act of manipulating the husband's penis in an apparent context of sexual activity and this has been going on repeatedly. The wife admits the sex acts she was performing but states she had been in a loving sexual relationship with her husband and though he was unable to communicate his consent to participate, she knew from throughout the marriage and his current non-verbal responses that he desired to participate. (I would caution from a physiologic basis for assuming some degree of erection represented consent or pleasure.) Now, would the wife's family or indeed the husband's family have a basis for calling the cops and sending the case for legal guardianship proceedings or would you expect that they would even do that?

Again, I think it is important that we consider the ethics and legality in this reverse gender scenario. What are the differences and what are the similar aspects of making a decision about the wife's behavior? Good luck! ..Maurice.

I agree with Eric that, in the absence of evidence of malice and with consideration of the care he is taking with her, this appears to be his decision. I would just add that some support for him might be a better approach than an attack. He could probably use physical, emotional and spiritual support, along with information on sexual behavior, etc to more adequately take care of this wife he obviously loves. I find that caretakers often have a score of "back seat drivers" when it comes to caring for disabled people, but those same "back seat drivers" rarely show up to lend a hand. This will be a larger and larger problem in our country as the population ages. Great post.

Eric wrote in response to my last question regarding switching the gender of the patient in the scenario "Most people wouldn't think twice if a wife were the one initiating sex with a brain injured husband. In fact, there would undoubtedly be jokes made about how he is enjoying it." If "most" is a valid statistic (and I agree with Eric that it probably is) then what does this represent in terms of our society displaying injustice (justice, a principle in ethics) for the caring husbands who may be involved in situations similar to the written scenario? Why can't there be gender equality in terms of consensual sex? Does society need some ethics education? Or, on the other hand, are we missing a worthy explanation? ..Maurice.

I know I am pressing for an answer, but Rhonda, what if the incapacitated family member in the scenario was the husband? ..Maurice.

Beth, thanks for your input!! I understand and generally agree with your statements. In fact, I have created and singularly caused passage of legislation on these very issues, with which I am sure you would wholeheartedly agree. However, I have known 2 men in similar situations to this scenario and it is not always as clean cut and clear as one would like to believe. Both of these men continued to care for their wives. Both dated outside the marriage - - after a time. It is hard to change one's deeply felt feelings and beliefs. He needs assistance and help with transitioning to the new situation. I don't think prosecuting or calling him crazy fits this situation at all. This is personal, serious and again, I refer to people who are not caretakers but love to criticize the situation. Rather than labeling and legaling, might be best to support and assist this man with transitioning to a healthier sexual subject. He could use some help to understand what is going on here. He needs talk, caring and education, not a pill or handcuffs. I think as a society we can do a better job of caring for one another, rather than prosecuting, humiliating and hurting one another quite so much. Maybe I'm a daisy!! Probably so! HA :)

Eric, sorry for the delayed response (I was on vacation) but in reality a sound wave has the classic capability of breaking some fine glasses and there might be no one to hear the sound but would find the broken glass later. Thus the sound could have some impact ("harming") on an object without being "heard". So I would dispute that the analogy applies to "a wife lied to by her husband but never in her remaining life was she ever aware that a lie had occurred." Nevertheless I suspect you do agree that, similarly, if the husband had sex with a wife that was unaware of what was happening and did not get pregnant nor infected with an STD and with a background of a loving marital relationship, we can't really say that she would have suffered "moral harm"? I do worry about the application of "rape" and whether the term applies to every possible circumstance such as a husband having sex with his wife who is unaware of what is happening but she has repeatedly given her consent in the past and could be assumed in a loving relationship to do whatever was necessary to satisfy the sexual needs of her husband. Perhaps, at this point, I am being excessive in my philosophical arguments. So I quit now. ..Maurice.

Shane, of course you would want to follow her decision but you don't know how she would decide at this time because she is unable to adequately communicate her desires. Therefore, as her, husband you have to provide what we call in the ethics decision business "substituted judgment".
As the surrogate, your decision should be based, not on your own personal desires but on what you know from when you communicated with her during that first year of marriage how she might have decided now if she was able to communicate. Substituted judgment, where you are essentially speaking your understanding of your wife's desires is the best way for a decision to be made beyond your wife speaking now for herself. The other way, if you have no idea from your earlier life with your wife what she have wanted, then your decision should be one of "best interest". What would the average woman who was in the same neurological condition as your wife is now consider would be in her best interest and the best interest of the marriage? To answer that question, it is reasonable to talk it over with others, particularly other women, and see what answer they would give to your dilemma. But as I said "best interest" approach should be used only if you have no recollection of anything that might support a decision now but spoken to you by your wife before the accident. In clinical ethics, medical decision making by others in the case of a patient who cannot communicate desires regarding that medical decision, substituted judgment and best interest approaches are usual ways to decide and only rarely is the courts involved. In your case, it is not a medical decision but one of personal intimacy and I don't see why the same two methods cannot be also applied in your case. ..Maurice.

Kim, on re-thinking what I wrote to Shane regarding substituted judgment and "best interests", I worried that this might not apply to the precise dilemma that Shane is facing. So I posted my concerns to a bioethics listserv and see what the ethicists there will have to say. I am beginning to get some responses. I also raised to the listserv two other possible decision-making avenues:

the decision being based on the husband's conscience (which apparently is what Shane is already doing.) The other would be empiric---observation of the incapacitated wife's response to close, loving behavior and sexual advances on the part of the husband. This empiric approach, based solely on the response of the wife and not the needs of the husband, should provide the information needed to make a final decision. However, there is more to think about.
For example, a female ethicist on the listserv wrote: "You suggested to the husband you were consulting with to talk it over with others, particularly other women, about what they might want in a similar circumstance. I think there is a flaw in your advice. Many women, indeed most of us who are not-yet-disabled, may relate to this woman as a child, not as a woman. That is, we tend to infantilize people who have suffered intellectual impairment."

The ethicist had presented a case that she was involved with:

"a young couple, very charismatic in many ways, who had been together 5-10 years before the wife suffered a tragic neurological event while in graduate school. She had no significant physical impairments but was quite impaired intellectually. Her speech, mobility, etc were intact but her judgment and memory were severely affected. For example, when hospitalized, if not carefully monitored, she would leave the building, go to the parking lot and ask other visitors to help her go home – but could not remember where home was or if she had a home. She would not be able to recall her husband’s name but then recognized him as soon as he was present. She was “child like”. Liked sweets (had become a bit chubby compared to her prior self). Staff felt very protective of her. But when her husband came in after work, this “child” crawled into his lap and was very sexualized. It was uncomfortable for many staff to observe."

Therefore, in response to my considering an empiric observation of the Shane's wife's responses in a loving and sexual manner and to his sexual advances, the ethicist wrote:

"What I really liked was your advice to the husband about approaching the question empirically by observing his wife’s reactions. In the case from my prior practice, the wife very clearly was “affectionate” with her husband. And other people! She had high needs for physical touch and affection. Her sexual response had not regressed to that of a 3-year old along with her judgment. She remained a woman. If the husband in my case had refrained from having sex with his wife, who clearly wanted to have sexual interactions, then who do we think she should have sex with? Others with similar intellectual capacity? Or predators? "

So there you are..so obviously there are other ways of looking at and defining "respect". Maybe
"respect" requires further investigation and evaluation of what respect means for the person in their current situation. ..Maurice.

Shane, you need not apologize since your situation IS the topic of this Question. In fact, the presenting scenario in this question was only a "made up" story in the Hastings Center Report to stimulate discussion. Your story is real and personal and has opened up new areas for important discussion. In the Hastings story the issue of sexual behaviors of the husband was only looked at in retrospect. The deed was done, many times over, so there was really no ethical dilemma as to whether the similar future behavior of the part of the husband would improve or harm the marriage relationship except if the husband didn't prevent another pregnancy.

In your case, for which I am sure we all appreciate your personal openness, you have not made the assumption from the onset of your wife's injury that she would have wanted sexual activity but you decided it might be inappropriate, considering her mental capacity, to engage her in that activity. However, I suspect that her current behavior ("her reaching out and holding my hand or her laying her head on my shoulder"), although you don't say it, may have caused you to wonder whether she has some sexual desires which she has not been able to express in other ways.
Her behavior in this regard, considered carefully as a possible sign of sexual interest, might support my final suggestion towards a decision, beyond substituted judgment, "best interests" or simply your conscience but to attempt an empirical observation to make that important decision. As I previously wrote: "observation of the incapacitated wife's response to close, loving behavior and sexual advances on the part of the husband" might well provide the clue as to what direction you should take with regard to future behavior for the benefit for your wife and benefit for the marriage. ..Maurice.

Shane, to give you a view from an ethicist probably more in keeping with your concerns, here is what she wrote:

"I share the worry about applying standards of ''best interest' or 'substituted
judgment' in such a case. Yet I also find myself hesitating to endorse sexual
relations in such circumstances, without necessarily having clearly developed
reasons why. This depends on what we understand the sexual relationship to mean
and to be, which surely has varied remarkably over time."

The ethicist was concerned about an issue of '"changing attitudes towards sexual expression" and questioned:whose attitudes ought to be canvassed? The woman
then, who married the man, or the woman now, who finds pleasure in such physical
contact? They don't seem to be the same woman in an important sense, which
raises the question, with whom is the husband having sexual relations? "

Shane, she was also considered your concern and concluded with "his wife might like to put her head on anyone's shoulder, and that it wasn't necessarily part of the unitive act of marriage. (I don't mean to invoke Catholic doctrine here per se, but that phrase gets at something
important in such a case - and importantly, it cuts in a variety of ways, depending on how one sees the unitive act of marriage.) "

As you see, the ethics (if not the laws) pertinent to the original case for this Question as well as your own unexpected burden is complex and there may not be a unified fully agreed upon answer.
It may turn out that the final answer to your concerns goes back to what you have been dependent upon all these 9 years..you own ethical conscience. ..Maurice.

The case most likely as published in the Hastings Center Report was fictionalized and was designed for ethical analysis but certainly presents a realistic possible scenario. One issue, the permission for sex which was missing could be argued that with a history of a sexual comparable marriage, would there be any doubt that the wife would deny her husband sex because she was unable to communicate? ..Maurice.