As promised in a previous post, I’m taking another look at this topic which is certain to become more controversial as situations in long term care facilities continue to present themselves. This topic is of recent relevance due to the acquittal of an Iowa man who was tried for sexual abuse of his now deceased wife, who suffered from dementia and resided in a skilled nursing facility. After eight days of trial, the jury deliberated nearly two full days to deliver their verdict. This criminal trial may be the first time a jury has considered the issue of a person’s capacity to consent to sexual relations when a person has dementia.
The man tried was a 79 year-old former Iowa state legislator (Mr. Rayhons) who was charged with having sexual relations with his wife at a long term care facility. The prosecution had argued that exceptions to the criminal sexual acts statute did not apply because the husband and wife were not cohabiting. This case ushers in a new era for the important question of how to balance rights and protections. As the age of the numerous baby boomers increases, this question will undoubtedly be raised again, particularly when the number of divorced or remarried boomers begin to occupy more space in skilled nursing facilities or other communal living. Sexual expression in SNFs is not necessarily a taboo subject. The Hebrew Home at Riverdale (NY) first published their “Policies and Procedures Concerning Sexual Expression” in 1995. In it is found empowering statements about residents’ rights to sexual expression and special factors apply where a resident has cognitive impairment which implicated the ability to form and give consent. I’ve come up with a not-very-short list of some of the big picture questions raised by this case:
- What is the requisite capacity required to consent to sexual relations for an older adult?
- How can this capacity be expressed appropriately?
- Is the nature of consent to sexual relations different for married persons?
- Does the nature of sexual expression change as we age?
- Who is responsible and how is a determination of consent made when the resident has a guardian (a person who is legally responsible for an incapacitated person)?
- How can a health care provider or an adult child interfere with or help support an older person in their choice of sexual expression?
- What is the zone of privacy for a married couple when one spouse lives in a skilled nursing facility or similar group setting?
- Is consent to sexual relations for a person with dementia actually a medical issue appropriate for a doctor to make?
- If a person with late stage dementia is not capable of giving consent, would this make any form of the person’s sexual expression tantamount to rape?
- In looking at dementia and intimate relations in long term care facilities – what are the stakes in the rights vs. protection continuum?
- What about divorced or otherwise single folks and all the blended families? How many people are involved in the notification and determination process?
- Is this a capacity issue or an ageism issue? I would say the this involves both issues . . .
In the Rayhons case, the late Mrs. Rayhons’ daughters took their concerns for their mother’s ability to consent to sex by taking the question of capacity to the doctor on staff.
What this case clearly demonstrates is the number of difficult questions presented in identifying the factors for considering sexual expression in the skilled nursing facility. There is a present need to establish some basic consensus about residents’ rights to sexual expression in long term care facilities. Groundwork needs to be taking place now. How many of us consider this question when we visit a facility to consider housing options?
I will note that in this post I am not looking at how sexual expression rights in long term care facilities are implicated when residents also suffer from mental illness or when there are sex offenders residing in the facility. Colorado does not at this time have any particular laws or regulations regarding sex offenders (or sexually violent predators) in long term care facilities, so it seems unlikely that an applicant for housing in a particular facility would be barred as a result of sex offender status, but the facilities themselves may adopt or follow their own policies in this regard so as to minimize risk to its residents.
©Barbara Cashman 2015 www.DenverElderLaw.org