FROM EUGENE VOLOKH, some generally sensible thoughts on sex and consent in the context of relationships. Excerpt:
It seems to me quite obvious that spouses are entitled to say “no.”
At the same time, it seems to me equally obvious that we must consider the parties’ past and unrevoked consent as relevant in some situations where there’s neither a “no” or a “yes.” If A starts caressing B’s genitals while B is sleeping, that’s generally a serious crime. But if A and B are sexually involved, it seems to me it shouldn’t be a crime at all — especially if this has happened before and both parties were quite happy about it — unless B wakes up and says no, or has indicated lack of consent to such behavior in the past. . . .
This is just a reflection of the fact that “consent,” like much in life, can be implied and long-lasting and not just express and short-term. If we’re good friends and you keep letting me borrow something, that may be evidence of consent to borrow it even when I’m not around to expressly say, “Yes, you can borrow it again.” That immediate consent is impossible, because you’re absent, doesn’t mean that there is no consent. Sex is not identical, of course, to borrowing gardening equipment, but in this respect it strikes me as similar: Even when someone isn’t able to immediately consent, it’s sometimes (though not always) reasonable to determine whether they would have consented by looking to past practice among the parties.
And this is especially so, I think, when the incapacity is permanent or at least long-lasting.
Read the whole thing. But however interesting and useful these thoughts are, I believe that the highly unusual Rayhons prosecution was based on the fact that he was a Republican state legislator who could be knocked out pre-election, and Iowa Attorney General Tom Miller is a Democrat.