It was a second marriage for both Henry and Donna Rayhon, so when Donna developed Alzheimer’s, Henry explained that the couple would try to make the most of the time they had left. When Donna’s condition worsened, she moved into a long-term care facility, where Henry frequently visited her.
Not long after she moved into the community, Donna’s daughters from her previous marriage met with nursing home staff and a physician regarding Donna’s mental capacity and specifically her ability to consent to sexual activity. They subsequently gave Henry a document stating that Donna was incapable of consenting to sex. Eight days later, Henry, a 78 year-old former Iowa congressman, was charged with a Class C felony after he was overheard to be engaging in what sounded like sexual activity during a visit with his wife.
Last month, the case went to a jury, and a media frenzy ensued. During the trial, prosecutors focused on the Iowa statute that defined sex with a person suffering from a “mental defect or incapacity” as sexual abuse, while the defense argued that dementia does not, and should not, qualify under this law, even though there is a serious cognitive impairment. Ultimately, the jury found Henry Rayhon not guilty of felony sexual abuse—but the reputational harm and embarrassing media scrutiny will likely have lasting effects on all parties involved.
As long-term care providers, the primary goal is the safety and well-being of residents and this case has shown that sexual activity must now factor into that assessment. As more and more Americans move into long-term care, communities can expect the sexual health and satisfaction of their residents to become a regular topic of concern. Providers should be aware of four main issues when considering this admittedly challenging topic: (1) the prevalence of senior sexual activity; (2) the need for education regarding safe sex practices; (3) the issue of reconciling cognitive capacity with the ability to consent to sexual activity; and (4) the challenges faced by facility employees and caregivers with respect to sexual activity within the long-term care communities.
The fact that seniors are living more active, longer lives, coupled with increased access to medications that assist in sexual functioning has, in many ways, “made 75 the new 25.” It’s not uncommon for a senior community to be compared to a college campus and, like a college campus, there are inherent risks in the practice of unsafe sex. In the past few years, there has been a 52% increase in the diagnoses of sexually transmitted infections in the elderly, and public health experts agree that lack of education is a significant contributing factor. To that end, long-term care providers should make an investment in a sexual education program, even if it’s just an informational series, or provide hand-outs and/or condoms to residents. While it may seem uncomfortable at first, being on the receiving end of one of the many media stories regarding seniors and STD outbreaks is arguably much worse. What’s more, offering education is a critical aspect to protecting the health of your residents.
Of particular concern is the added challenge of determining the capacity to consent. Medical experts agree that sexual activity can actually prolong consciousness and improve the quality of life for a person suffering from dementia, but, unfortunately, most state laws governing sexual assault do not address these nuances. For example, in Texas, a person can be convicted of sexual assault if he or she “knows that as a result of mental disease or defect the other person is incapable of appraising the nature of the act or of resisting.” Tex. Penal Code Section 22.011. A strict reading of this language makes clear that engaging in sexual activity with a person with dementia, especially if the person is unable to understand or resist, constitutes sexual assault. But, it is equally clear that the law was not likely intended to be broadly applied to seniors in intimate relationships, and should not be construed to mean that anyone suffering from a degree of dementia must therefore be celibate. Herein lies the difficulty of balancing legal compliance with the best interests and care of residents.
To mitigate risk of liability, long-term care providers should develop a sexual activity policy that includes a discussion with the resident’s adult children, if appropriate. Open communication with residents and families, coupled with a policy and employee training, are essential to creating a supportive and safe environment.