The right to love is considered to be an essential human right; however, one exception that often prevails is in cases of Alzheimer’s patients. The case of Henry Rayhons, who was charged with sexually abusing his wife, Donna, is such a striking example; at the basis of the charge was her alleged inability to give sexual consent. Can people who are unable to recognize their own children give their sound sexual consent?

The case of Henry Rayhons

Henry Rayhons (born August 5, 1936), an Iowa State legislator, and Donna Lou Young (born August 12, 1935) married in 2007. At that time Henry had been a widower for less than a year (after 47 years of marriage), and Donna had been a widow for six years (after 48 years of marriage). Donna was diagnosed with Alzheimer's disease in 2009 and was admitted to a nursing home in 2014; she died on August 8, 2014. A week later, Henry was arrested on the charge that he had sexually abused Donna at her nursing home The specific charge was that he had intercourse with his wife in her room at the nursing home on May 23, 2014, despite having being told that she no longer had the capacity to give consent. On April 22, 2015, an Iowa jury found Henry Rayhons not guilty. At the heart of this legal procedure is the issue of whether people with Alzheimer’s (and dementia in general) are legally considered to be able to control their own sexual decisions.

Henry testified that Donna continued to desire and even initiate sexual contact after being diagnosed with Alzheimer’s. But he said that on the night in question, May 23, 2014, they had just kissed and held hands. Henry claimed that they shared moments of physical intimacy at other times but those occasions took place before May 15, 2014, when he signed a document acknowledging that his wife no longer had the mental capacity to consent to sex.

There was no evidence that Henry forced his wife to have sex or that she asked him not to touch her. Henry testified that “Donna would ask me to stand close to her bed and she would unzip my trousers and she would reach in and fondle me.” He said he never unzipped himself and that his penis remained inside his pants. Sometimes he would become aroused. “I wouldn’t ejaculate but I would leak,” he said.

After Donna’s situation deteriorated, her daughters put her at a nursing home against the wishes of Henry, who wanted to get her professional care that would allow her to keep living with him. The daughters also limited their mother’s outside activities, including outings with Henry, so that her routine would be more consistent and less agitating. The daughters even moved Donna from a private single room to a room that she shared with another elderly woman. Donna was upset because Henry couldn’t be with her all the time; she wept and accused her daughter of not liking her husband.

The relationship between Henry and Donna was that of profound love. He said “I treated her like a queen. She treated me like a king. I loved her very much. I miss her every day…We just loved to be together.” And indeed they seemed to be inseparable. There was no indication that their love faded, that Donna failed to recognize her husband, that she asked him not to not touch her, or that she did not enjoy the intimate activities. The acquittal seems to be justified.

Consent

The issue of whether an Alzheimer's sufferer can say yes or no to sex is central to the whole debate concerning their sexual life. The cognitive capacities of people with Alzheimer's are impaired, but there are degrees and fluctuations; this makes it difficult to determine the person’s ability to consent to sex.

The decision concerning Donna’s inability to give her sexual consent was based on her very low scores in a standardized cognitive test called the Brief Interview for Mental Status. Using the BIMS to gauge a dementia sufferer’s ability to make sexual and other decisions is problematic as this test merely indicates whether the patient has dementia. Susan Wehry, a geriatric psychiatrist, said in an interview to Bloomberg News that one can have virtually no short-term memory and still consent to many things. Hence, a more suitable attitude would examine whether the person can recognize her husband, whether she remembers his name, and whether she is pleased to see him. She should be interviewed with him present and asked whether she likes his company and whether she wants to have sex with him. Indeed, many experts in dementia say that acute memory loss doesn’t mean a person can’t make decisions about their finances, health, food, or having sex. In answer to the question of whether he was aware that Donna lacked the capacity to consent to sex, Henry replied, “I do not know if she had the capacity or not. I just assumed that if somebody asked for it, they had the capacity” (see here Bloomberg News).

The situation, however, is more complex. Sexual assault laws recognize that a spouse cannot force himself or herself upon the other, but can Alzheimer's sufferers recognize if they are the victim of such forced sex? Moreover, as in certain cases Alzheimer's patients are known to lose their sexual inhibitions and aggressively seek sex, is their sexual behavior really what they want? It is clear that any person has the right to say no to sex, but does everyone have the right to say yes? Thus, we do not attribute such a right to very young children. Can we say that Alzheimer's patients have lost their right to consent to sex? The law protects incapacitated people who are unable to understand the nature and consequences of sexual activity, but does this protection mean abolishing these people's sexual life?

These are difficult questions that should be handled with care, while being sensitive to differences in personalities and circumstances. However, we should never forget that we are dealing here with human beings who are entitled to their basic rights. An elderly person who is married to an Alzheimer's sufferer said that after a gathering of their family and friends during which his wife did not participate, she said to him, “Tell them that I am also a human being.”

What should be done?

The above considerations should be taken into account when we think about the policies concerning love and sexual behavior of dementia patients in nursing homes. Such policies are currently being reconsidered all over the world. There are already some nursing homes that encourage consensual sex between their dementia patients; their underlying assumption is that intimacy and sexuality are normal and beneficial for the patients' overall health and wellbeing. People are sexually active well into their 70s and 80s, and for those suffering from Alzheimer's, intimacy and sex can be a healthy comfort as they lose their awareness of their links to family and friends. Indeed, in some places there are laws requiring care facilities to respect residents’ rights to privacy, including that for kissing, fondling, intercourse and other sexual activity.

Implementing these requirements is complex and raises various practical and moral dilemmas. Bloomberg News reported cases of people with dementia who have forgotten who their spouses are and seek intimacy with others; a husband who demands sex from his demented wife, despite her resistance; a demented woman who has passionate sex with her husband, then attacks him for having an affair. Actually, the first of the Bloomberg News stories in this regard concerned a 78-year-old divorced man with dementia who was found having sex with an 87-year-old married woman with dementia at an Iowa nursing home. The home’s administrator decided the encounter was consensual. State regulators disagreed and cited the home for not reporting the episode. The administrator and nursing director were fired, and the male resident was forced to move to another facility.

The difficulties of devising general policies and regulations are immense, in part due to the lack of widely-accepted criteria for determining dementia patients’ capacity to consent. There are also in this regard divergent norms among various people and sections of the population. Despite such difficulties, the underlying assumption should be that the intimate needs of dementia patients are real and should be respected, with those involved given the dignity they deserve. As Daniel Reingold, president of the Hebrew Home in Riverdale, New York, told Bloomberg News, “We honor what remains in a person, not what’s gone.” In his institution, even when a resident who is married to someone outside the facility has sex with another resident, the home would support the relationship if it’s healthy and consensual. Robin Dessel, the Hebrew Home’s sexual rights educator, noted: “This isn’t meant to be a hospital, it’s meant to be a home. A resident’s voice is foremost; it trumps everything.”

Adopting a policy which enables loving (including intimate) behavior to take place, while making sure that abusive relationships do not occur, might not merely improve dementia sufferers' quality of life and therefore make them feel younger and more in control, but it might also prolong their life.

The quality of the love that Alzheimer’s sufferers experience, although a subject of great interest, is beyond the scope of this article. However, it is certain that they, like others with diminished mental capacities, are capable of loving; that they need to express love and cherish being loved, as do we all. Moreover, for everyone, love-making involves much more than sexual intercourse; in any relationship, close companionship and spending time together also involve a kind of love-making. Indeed, experts believe that love and intimacy—from a hug to a massage to intercourse—can make dementia patients feel less lonely and even prolong their lives.

Note: Much of the information presented here comes from articles by Bryan Gruley of Bloomberg News, which have extensively covered the Rayhons’ case, as well as the general issue of Alzheimer's patients' right to have a sex life. See, e.g.,

Sex With Your Wife or Rape?
Sex Among Seniors With Dementia Spurs Call for Policies
Sex in Geriatrics Sets Hebrew Home Apart in Elderly Care

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