A 78-year‐old Iowa man, Henry Rayhons, has been charged with third-‐degree felony sexual abuse for having sex with his wife, who had severe Alzheimer’s, in her nursing home on May 23, 2014. Mrs. Rayhons died in August. The case raises questions about the capacity to consent in cases of severe dementia, an issue that is not limited to sexual relations. It comes up also in cases where patients initially resist food and water, but can be coaxed to eat. Does opening one’s mouth and ultimately swallowing indicate consent?
The importance of consent in sexual relations is now well recognized, although it hasn’t always been. Under common law, laws against rape were not considered applicable in marriage. The movement to make spousal rape a crime began only in the mid-‐1970s. By 1993, it was a crime in all 50 states.
However, this case is clearly not a case of spousal rape. No one suggests that Mrs. Rayhons resisted sexual contact with her husband, nor were there any signs of abuse. Indeed, by all accounts, theirs was a loving and affectionate relationship, and Mrs. Rayhons was always pleased to see her husband. That pleasure was undoubtedly less visible in the final stages of her dementia, but even then there were minimal signs that she enjoyed this contact, and none that she did not.
Without any signs of abuse, what was the basis for the arrest? Apparently, Mrs. Rayhons’s daughter was concerned that Mr. Rayhons was engaging in “inappropriate sexual contact” with her mother. This led a social worker to ask the nursing home’s doctor whether, given Mrs. Rayhons’s cognitive state, she was able to give consent for any sexual activity. He said she was not. Her husband was notified of the nursing home’s recommendation against having sex with his wife.
In other contexts, the absence of affirmative consent to sexual relations may be the right criterion for rape or other sexual abuse. For example, it is increasingly recognized that engaging in kissing or petting is not consent to sexual intercourse. On many college campuses, the movement is away from “no means no” (absence of consent) to a standard of affirmative consent. That is, both partners must give affirmative consent, whether verbal or otherwise, for sex to be consensual.
Using affirmative consent as the standard would deprive patients with severe dementia of sexual relationships, because few retain the capacity to articulate a desire for sex. That would be a shame, because of the importance for human beings — even older ones, even ones who have dementia – of physical intimacy. As Daniel Reingold, the chief executive of the Hebrew Home at Riverdale, which introduced a “sexual rights” policy for residents in 1995, put it in the New York Times, “Touch is one of the last pleasures we lose. So much of aging and so much of being in a long-‐term care facility is about loss, loss of independence, loss of friends, loss of being able to use your body. Why would we want to diminish that?”
Some want to diminish that because they are uncomfortable with elderly people having sex. That outmoded idea should be discarded.
Acknowledging sexual rights means giving patients the privacy to have sexual relationships. Of course, this needs to be balanced against protecting patients, especially patients with severe dementia, from coercion and exploitation. This is likely to be a greater concern with new relationships that spring up in the nursing home.
In the context of marriage or long‐term partnership, the emphasis should not be on whether the patient’s cognitive capacity deprives her of the ability to consent to sex, but rather on whether she is being used or abused. This is not easy to determine, since sexual relations are by their nature private and intimate. We certainly do not want social workers or psychologists monitoring the sexual activity of residents! However, they can observe whether the resident is happy to see and be with the spouse, and whether she seems upset after visits. Evidence of abuse or mistreatment is one thing. Criminal charges against a loving spouse merely for continuing a sexual relationship they both enjoyed, and which seems beneficial, not harmful, to the patient, is quite another.
Bonnie Steinbock, a Hastings Center Fellow, is professor emeritus of philosophy at the University at Albany, State University of New York, and a professor of bioethics at Union Graduate College’s Center for Bioethics and Clinical Leadership.