Can someone with Alzheimer’s disease or dementia consent to sexual contact with another person? What if it’s a situation involving a married couple or two persons that have engaged in a long-standing intimate relationship? Questions such have these are difficult to answer, but have become a topic of great debate in recent times due to the case of Iowa v. Henry V. Rayhons.
The case involved allegations that Henry Rayhons sexually abused his wife, an Alzheimer’s patient, by having sex with her at a nursing home after being told by staff that she was unable to give consent. Felony charges filed by the State of Iowa carried a possible 10-year prison sentence if Henry Rayhons was found to be guilty as charged. At the time charges were filed, Henry Rayhons was 78 years old, a former farmer and a nine-time incumbent state representative in Iowa who was poised to run for re-election. He maintained his innocence throughout the process and the case proceeded to trial.
The background of ‘Iowa v. Rayhons’
Henry Rayhons and his wife, Donna, were married in 2007. It was a second marriage for both of them and each had children of their own upon entering the marriage. According to friends and family, Henry and Donna were very much in love.
Donna was subsequently diagnosed with Alzheimer’s and eventually placed in a nursing home by her adult daughter, who was initially named as Donna’s health care proxy and later as legal guardian, after having successfully petitioned the court.
Testimony at the trial revealed that Donna was evaluated by a facility doctor to measure her mental capacity. Upon the request of Donna’s daughter, the doctor advised Henry that Donna did not have capacity to consent to sex. The nursing home told Henry that he was allowed to take his wife to church on Sunday, but to otherwise limit outings.
Eight days after being advised of the nursing home and doctor opinions, Henry visited Donna in her room at the facility, which she shared with an 86-year-old female roommate. While there, it was alleged that Henry engaged in sexual acts with his wife, based on the roommate’s report and physical evidence gathered at the scene.
The verdict
In order to prove its case, the prosecution had to prove two facts beyond a reasonable doubt: (1) that Henry and Donna Rayhons, engaged in sexual relations on the night in question; and (2) that Donna Rayhons was unable to consent to those activities.
A jury determined that the prosecution did not prove these two facts and found Henry “not guilty.” However, the reasons behind the jury’s verdict were not specifically made known and leave us with lingering questions moving forward.
Questions that remain
Most people value personal relationships, varying degrees of physical touch and intimacy, which differ based on one’s personal preferences. These personal preferences do not just simply disappear when we get old. Sexual intimacy is one form of human contact that many adults take for granted. However, when one goes to live in an assisted living or nursing home facility, that right could be taken away from them or altered. Should someone with dementia or Alzheimer’s be precluded from engaging in all forms of intimate sexual contact?
There are longstanding medical and ethical considerations involved here as well, which will only become more prevalent as we live longer (as a society) and the rates of dementia continue to rise. The Hebrew Home is a well-known nursing home facility located in New York that has attempted to tackle some of these issues head-on. It became the first facility to implement a “sexual expressions” policy for its residents. To date, few facilities have followed suit and most do not have a policy concerning their residents’ rights to have sex with a spouse or any other person. The conversation started by the Rayhons case may encourage facilities to look into implementing such a policy.
Another question that was thrust into the national spotlight by the Rayhons case is whether a patient with dementia can consent to sex, or at what point a person with dementia is no longer able to consent. In the Rayhons case, the prosecutor focused on the incapacity of Donna Rayhons. The prosecutor compared Donna to a 12-year-old child who is unable to consent simply because the child lacks capacity to consent.
The argument made was that Alzheimer’s disease rendered Donna incapable of consenting to sex whether she “wanted” to or not. This question of how to determine whether an adult can no longer consent to sex, especially with a spouse, is a delicate one that involves civil liberties and should not be taken lightly.
Dementia patients have varying levels of capacity and unpredictable periods of lucidity, which makes it even trickier to establish a bright line rule. How should we measure one’s capacity to engage in an intimate relationship? Is it best to say that once a person has been diagnosed with dementia and has moments of “lacking” capacity they should no longer be able to consent to sexual activity?
There may come a time when a person suffering from advanced Alzheimer’s may be unable to recognize his or her own spouse, child or sibling, which is a terribly difficult experience for all who are involved. It can be extraordinarily difficult on a healthy spouse who is no longer recognized by his or her partner.
In some instances, the spouse who is suffering from cognitive impairment flirts or falls in love with another resident at the nursing home. It might sound far-fetched, but it is more common than you would think. A few years ago, you may remember the story that received national attention involving the husband of retired Supreme Court Justice Sandra Day O’Connor, who was suffering from advanced dementia in a nursing home and fell in love with another patient. The O’Connor family handled the matter with dignity and class by expressing how pleased they were that Mr. O’Connor was “comfortable” and “relaxed.”
It is hard to imagine how difficult that process must have been on the O’Connor family and what it was like to experience that firsthand. Hopefully, none of us will experience anything like it in our lifetime. However, it does appear that sexual activity among dementia and Alzheimer’s patients is becoming a reality that skilled nursing and assisted living facilities will be forced to address in the future.
As we become older, it might make sense to have a conversation with our spouse or significant other to make known what our personal preferences with respect to intimacy are. It is a conversation that should take place before any questions of mental capacity come into play.
Legal Solutions
One possible solution may be to revise existing legal directives by adding additional language to a health care proxy that sets forth your personal preferences and choices with respect to companionship, facility choice and personal relationships. There are no quick and easy answers to any of these questions, but they are worth thinking about and discussing with your partner while you can.
Rob Lamb is a senior associate in Boylan Code LLP’s Estates & Trusts Group. Contact Rob at (585) 232-5300 ext. 267 or rlamb@boylancode.com.
