Marital Rape – Or Not?

By Attorney Gregg Herman
April 7, 2015

A story in today Washington Post illustrates how difficult it is for the law to differentiate between legal and illegal conduct.  About 15 years ago, Iowa outlawed non-consensual sex between a husband and wife.  That makes a great deal of sense.

But, the issue of consensual vs. non-consensual sex is difficult enough when the parties are not married – cases of “he said/she said” are quite common and very difficult.

But this case adds the additional element of the wife having Alzheimers and – according to the prosecution, the inability to consent to sex.

If so, then the husband’s conduct would be criminal.  But, where is the line between a spouse having a degenerative disease but still being able to consent – or not?

I certainly don’t know the answer – I just post a link to the story to illustrate how difficult it is in certain cases to make define the line between something which would be private conduct and that which could cause someone to be convicted of a serious crime, labeled as a sex offender and perhaps being sentenced to jail.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.