In 2014, Henry Rayhons of Iowa was charged with sexual abuse for having sex with his wife who had Alzheimer’s disease. They were intimate in Mrs. Rayhons’ nursing home, and her physician said she was not capable of giving consent. Nursing home staff commented that Mrs. Rayhons always appeared happy to see her husband, and there was no suggestion that Mrs. Rayhons had resisted intimacy. Mr. Rayhons testified that his wife continued to desire intimacy and sexual contact and even initiated these activities. Charges were later dropped.
I learned of this story at a recent research symposium hosted by the University of Waterloo’s Sexuality, Marriage and Family Studies Program, where Andria Bianchi, a PhD candidate in applied philosophy at the University of Waterloo, shared a presentation entitled “Sex, Intimacy, and Consent for People with Dementia.”
I was instantly intrigued. This was something I had never thought through before. How do you give consent when you have dementia? Can you legally give sexual consent if you have dementia? Is there a protocol for such a thing? What if I got dementia? Would I want to be intimate? Would my partner want to be intimate with me? Would I trust my partner to do what they thought was in my best interest? What if I didn’t have a partner but still wanted to be intimate?
People with dementia often suffer great losses. Loss of their independence, their memories, use of their bodies, possibly their family, friends and home. Loss of intimate contact would be another loss in their lives.
Who gets to decide whether a person with dementia can consent to sexual activity? Is it their physician, their partner, social workers, the law? And what does this sexual activity include? Who determines if they are a willing participant? Should people with dementia be denied the benefits and comfort of physical intimacy?
Some people may make these decisions for people with dementia based on their discomfort – discomfort about elderly people being sexual, discomfort about people in care facilities being sexual, discomfort about sex in general. A person with dementia still has sexual rights, which would include the right to intimacy and sexual activity. They also have the right to be protected from abuse, coercion and exploitation.
Bianchi discussed advance sexual directives in her presentation as a way to prospectively consent to sexual activities. Is this a solution? Could advance sexual directives be used in unison with active consent as long as the withdrawing of consent was possible? For many people a fulfilling sex life is important and they may want to ensure that this is not taken away from them. They may also want to protect those they are in relationships with from being prosecuted.
For now, I have more questions than answers.