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Sex bans in nursing homes
Is is legal to deny sex to the elderly?
Posted August 9, 2009
More than 30 years ago, in Arkansas, a sociologist proposed to a group of nursing home operators that they set aside "privacy rooms" for their residents to do whatever it is that consenting adults do in private. Professor Eddie Hargrove maintained that hand-holding, kissing and petting "probably would go further than a little medication at 10 o'clock at night," according to the New York Times.
The nursing home operators all rejected this idea then, and it apparently has not gained much ground since.
Flash forward a generation, and an advocate for medical marijuana asked me recently if -- in my role as a psychologist in long-term care facilities -- I had ever seen it used in nursing homes. I could only lamely reply, "That's about as likely as sex."
I'm no expert on sex, and I'm not a lawyer, but where is the law that says you check your rights and liberties at the nursing home door?
There is none that I know of. In fact, the law says you retain the right to a sex life wherever you reside.
The federal government -- which pays for most long-term care through Medicare and Medicaid -- enacted the Nursing Home Reform Act of 1987, mandating that continued federal funding for a nursing home required the institution to maintain an environment in which each resident can "attain and maintain his or her highest practicable physical, mental and psychosocial well-being."
In addition to specifying that certified nursing homes provide basic services such as physical therapy and recreation, the law also contains a Residents' Bill of Rights that includes the right to privacy and the accommodation of personal needs.
At the local level, many states have followed up with a further enumeration of individual rights in long-term care. In California, for example, the Welfare and Institutions Code specifies that residents have the right "to live in an environment that enhances personal dignity, maintains independence and encourages self-determination," and "to participate in activities that meet individual physical, intellectual, social and spiritual needs."
Then why is it so hard to remain sexually active in a nursing home?
First, it's hard to find any privacy in nursing homes. Doors are always open; a closed one is viewed with the suspicious eyes of a teenager's mother wondering what's going on in there. I recently had a resident referred to me for masturbating in front of an aide who had walked into the room. Why did she walk in without knocking? Well, you can't knock on an always open door. And in your room -- typically shared with a total stranger after a lifetime of independence -- you have only a curtain for privacy.
When I'm having a session with a resident in a nursing home -- even with the door closed -- it's quite common for an aide to just walk right in and start making up the bed. The custodian might appear next with a mop, followed by the cable guy fiddling with the TV.
Unless you're into exhibitionism, it's hard to imagine consenting adult residents having sex under these conditions.
One nursing home -- the Hebrew Home at Riverdale in New York -- established, in 1995, a policy recognizing the right to "sexual expression," and it's often trotted out as the progressive example. But in the dozens of nursing homes I've visited over the years, I've heard lip service to privacy but little action. My colleagues in other states confirm my impressions.
In the typical nursing home, it's rare to hear the word "sex" without it being modified by "inappropriate" or "offense."
There may be an "ick" factor when we think about our elders having sex. But a 2007 University of Chicago survey, "A Study of Sexuality and Health Among Older Adults in the United States," concluded that old people -- given the opportunity -- are as likely to be sexually active as the young, and well into their 70s and 80s. But not in nursing homes.
It's easy to slip into the mind-set that because these people are in institutions, this gives us free rein to decide what's best for them. But people in nursing homes retain the same rights as the rest of us to mess up or enhance their lives with sex.
I sometimes think of aging -- particularly in nursing homes -- as childhood in reverse: going from independence to dependence and paternalistic control. As my baby boomer generation starts to fill up these institutions over the next couple of decades, I hope we continue to insist on our cherished rights of self-expression. In the meantime, does it makes sense that it's easier to get a conjugal visit in a jail than in a nursing home?
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"Sex bans in nursing home" was originally published as an op-ed in the LA Times, August 3, 2009.
