Sex, Seniors, and Consent

What does informed sexual consent mean for patients with dementia?

Posted Jun 15, 2016

In August 2014, Iowa State Assemblyman Henry Rayhons was formally charged with felony sexual abuse. The 79-year-old politician's crime?   Allegedly having sex with his wife Donna, who was then a patient in a special care facility for people with Alzheimer's disease.  While the case would eventually end with Henry being acquitted, it still raises troubling questions about the often controversial issue of sexuality in seniors and the barriers imposed by nursing home staff.   

When Henry married Donna Young in 2007, it seemed an ideal second marriage for both of them.  Henry had four children from his first marriage to his wife, Marvalyn, while Donna had three daughters.  Even after Donna developed Alzheimer's disease, Henry was a frequent visitor to the nursing home which she entered as a voluntary patient.   Though Donna's condition deteriorated, Henry's visits would continue and, as her own daughter would later testify,  Donna "just lit up every time Henry would enter the room." 

They had a loving relationship and were often seen hugging or holding hands during his visits.  There was certainly nothing to indicate that he was abusive or that Donna was in any way afraid of her husband.  The only real conflict came from the different views Henry and Donna's daughter had about the kind of care she should receive.   Henry wanted to take Donna out of the nursing home for visits to familiar places but the oldest daughter objected to allowing Donna out for anything but attending church on Sunday. 

Another source of friction came from from what staff members referred to as "inappropriate sexual contact" between Henry and his wife.  One social worker even wrote her concerns right into Donna's care plan with the note:  "Given Donna's cognitive state, do you feel she is able to give consent for any sexual activity?"    Dr. John Brady, medical director of the nursing home agreed and staff advised Henry that he should refrain from any sex with Donna. As it would turn out later, Henry and staff members had different ideas about what "sexual activity" actually meant.

After one incident in which Henry had been considered to have breached nursing home rules, another of Donna's daughters petitioned the court to be appointed her temporary guardian.  The court order didn't mention sexual activity but stated that Henry had violated recommendations and visited Donna in a room which she shared with another resident.  The alleged sexual encounter occurred with the other resident still in the room with only a privacy curtain to separate them.

Shortly after this alleged event took place, Donna was moved to another special care facility where she died.   Henry was formally charged a week later.   To fight the charge, he announced that he would not be seeking reelection when his term came to an end in 2014.  It still isn't clear why the district attorney decided to lay charges against a popular elected official, especially one who was still dealing with his wife's death a week previously.  The entire trial focused on the question of whether Donna was competent to give consent for sex, even though she often sought sex with her husband and seemed confused at attempts to prevent it.

During the trial, Henry  testified that Donna enjoyed sex and would sometimes reach into his pants to fondle him.  She described it as "playing" which he insisted was not sex and that the restriction placed on him by the nursing home staff didn't apply.  He also denied any sexual contact on the date in question though he admitted that sex had occurred on other occasions while Donna was a patient. 

Under Iowa law, as well as the Nursing Home Reform Act of 1987, the right to self-determination individual dignity for patients who had not been found incompetent are protected. Despite the concerns of Donna's children and the nursing home staff, she had never been declared incompetent to give consent for sex by a judge.   According to staff however, Donna had become largely incoherent in her final days though her roommate described her as a "good friend" who was fond of her husband.  

In his own testimony, Dr. John Brady reported that Donna had scored zero on a standard test of mental ability used for patients with dementia.   He dismissed Donna's apparent willingness to have sex as being no different from a baby's reaction towards a mother's affection and could not be considered an informed decision.   Another prosecution witness, a neurologist specializing in dementia assessment and treatment,  argued in court that dementia patients lacked the judgement to reject unwanted sexual advances.

Testifying for the defense however, was Dr. Robert Bender.  A geriatric specialist, Dr. Bender reported that Alzheimer patients continue to experience sexual desire even after losing other cognitive abilities such as memory and speech.  "A deep part of the brain can recognize a longtime partner, allowing a person with dementia to make a meaningful decision to be with that person," he said.  "Most people with dementia can voice displeasure of things that are being done to them and no one has said there was any sign of that happening in this case."   Unlike the prosecution experts, Dr. Bender argued that the lack of protest was a sign of consent on Donna's part. 

While Henry Rayhons was acquitted, the  question of whether people with dementia can give consent for sex continues to plague health care providers and families of dementia patients.   In a review article recently published in the American Journal of Orthopsychiatry, Murray Levine of the State University of New York at Buffalo examined the Rayhons case as well as the complex issues surrounding sexual consent.  

While sexual consent typically means either agreeing to the act of sex or else objecting to unwanted sex, the capacity for giving consent can be compromised for a wide range of reasons.   For example, an underage child having sex with an older adult is legally regarded as being incapable of giving informed consent due to the power imbalance involved since sexual consent can be obtained through coercion.  

People whose judgment has been compromised due to the effect of alcohol or drugs or who suffer from a debilitating condition such as Alzheimer's disease are typically much harder to assess.  Dementia patients, for example, often have trouble recognizing people and can even believe that someone they just met is a familiar family member.  How can consent be determined in someone with this kind of memory loss?   For that matter, people with frontal lobe impairments are often prone to sexually inappropriate conduct, including sexual fondling. Should this be taken as an invitation to sex by an intimate partner?   

Leaving aside the ethical questions involved, there are also health issues including venereal disease and the risk of injury for physically frail seniors.  In many nursing homes and chronic care facilities, staff are routinely called on to deal with awkward questions like this and the simplest solution is to ban any kind of sexual act, even between apparently consenting partners.   But this is an issue that can't be eliminated quite so easily.  

As Murray Levine points out, with more and more older adults entering chronic care facilities, there is going to be increased demand for more flexibility regarding patient sex.  What this means exactly will likely vary from patient to patient and the extent of that patient's disability.  For patients who are totally disabled and required staff help to feed and dress themselves, the amount of privacy they actually receive with visiting family members is likely going to be limited.  Is this something that needs to change in future?   And should sex education aimed at teaching patients about the medical risks involved with sexual activity be a standard part of patient orientation for all new patients?  

Even well into extreme old age, sex is going to be a basic need for most people and this is something we all must recognize.  Considering the controversy that seems to surround sex in seniors, we are likely to see more cases like the one involving Henry and Donna Rayhons in the foreseeable future.

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