The highly charged trial of former Iowa legislature Henry V. Rayhons is now over. Five months ago, jurors voted to acquit the Defendant of third degree sexual assault. One of the voting jurors was a local reporter who wrote a revealing and no doubt personally difficult article. The article and ultimate outcome of the case should give pause to anyone who thinks that our system of justice is broken. By all accounts, the jurors all made their decision based on the evidence and took their job seriously and with the utmost integrity. The larger question that the case spawns, which can now be discussed given that some time has elapsed, is the issue of what rights do dementia patients retain? More particularly, can a dementia patient consent to intimate contact with loved ones? For example, can a husband of over 50 years, in the privacy of his wife’s room embrace her in an intimate and loving fashion? What if the grandchild gives the same loving embrace? Can the spouse sleep in the same bed without concern for legal liability? Leaving the issue of intercourse aside, sexual expression is perhaps one of the most profound and important rights.
MEDICAL AND ETHICAL PERSPECTIVE
The Arc and the American Association on Intellectual and Developmental Disabilities, organizations which serve a population with very similar needs to those with dementia or alzheimer’s, adopted a joint statement that “People with intellectual and/or developmental disabilities, like all people, have inherent sexual rights and basic human needs. These rights and needs must be affirmed, defended, and respected.” Most people believe that sexual interest wanes with age. The first detailed examination of its kind, in 2007, dispelled that myth, with sexual interest remaining high and activity higher than expected. A growing body of advocates and experts agree that the best approach is to create guidelines that allow for intimate and sexual contact. Dr. Tia Powell, a medical ethicist, states that “there is nothing about being cognitively impaired that means you wouldn’t necessarily appreciate being connected with other people through … sexual means.” All of the discussion revolves around the issue of consent. Often times capacity is situationally specific, where a patient may not be able to understand the medical complications and long term consequences of a certain decision, thereby evincing lack of consent. That same patient, however, may have capacity to consent to something else. The long term harm to others and him/herself certainly plays a role in any issue of consent.
WHAT CHANGES ARE POSSIBLE
The Hebrew Home for the Aged was the first facility of its kind that created and implemented policies that allow for sexual expression. It is possible for institutions to implement policies that distinguish between intimacy and inappropriate relations. Not surprisingly, many institutions make their decision based on their potential exposure to legal liability. Often this is at the expense of the patient. Some lawyers advocate for powers of attorney to allow for the patient to engage in sexual activity, which would shield the facility from liability and appease state and federal regulators.
With such profoundly powerful emotions and basic needs at issue, consultation with an experienced elder law attorney is needed. Your lawyer can discuss the rights that you have as the client or caregiver. Your attorney can also to craft a manner of dealing with your specific needs, tailored to your specific set of circumstances.