Thursday, December 11, 2014

When Does Dementia Mean You No Longer Have the Right to Say Yes to Sexual Activity?

In August, I reported on criminal charges filed that month in Iowa, charging a husband with sexual abuse of his wife who was living in a nursing home. 

As a result of that post, I was invited by a reporter, who was working on an extended analysis of the case, to review certain information and records emerging from the case. Much of my own research is closely focused on issues both of capacity and protection.

The more one reads about the Iowa case, the sadder it seems.  Even though at first it seemed the husband, a state legislator, might be expected to have sophisticated legal knowledge of the implications of what it might mean for his wife to be diagnosed with dementia, it became pretty clear -- at least to me, reading from afar -- that the husband is a fairly simple guy: A farmer, high school education, part-time legislator who liked pig roasts and parades, and someone who cared deeply for his second wife, trying as hard as possible to see her as "just a little" impaired. 

I suspect that for many of us who have experiences with a loved one with dementia, there is a phase of denial, not just about the fact of dementia, but about the level of dementia. I remember one instance where a client always had her husband sign their joint tax returns, because even with Alzheimer's, he was "able" to sign his name clearly.   

Reading the statute used to charge the Iowa husband also gave me pause. Iowa Code Section 709 was the basis of the sexual abuse charges.  Sexual abuse in the third degree under Section 709.4 could be charged where a sex act "is done by force or against the will of the other person." That provision did not seem to apply.  Charges could also be brought where the act is between persons who are not cohabiting as husband and wife, "if any of the following" is true: "The other person is suffering from a mental defect or incapacity which precludes giving consent."

Section 709.1A of the Act defines "incapacitation" to include "mentally incapacitated" or "physically incapacitated" and neither quite seemed to apply.  Under Iowa law, "mentally incapacitated" means that a person is "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance."  And "physically incapacitated" means that a person has a bodily impairment or handicap that substantially limits the person's ability to resist or flee."

So, how was the husband charged?  He was charged under Section 709.4 (2)(a) on the grounds that his wife, with whom he was not "cohabiting," suffered from a "mental defect" that precluded giving consent.

So that makes the "elder  law" issue fairly stark: Has his wife's diagnosis of dementia, especially advanced dementia, prevented her from giving legally effective "consent?"

It turns out that Iowa has other examples of using the law in this way, including a "decision without published opinion" in a 2012 Iowa Court of Appeals case.  In that case, a psychiatrist's  testimony -- that the woman was incapable of giving "meaningful consent" due to her history of traumatic brain injury -- trumped the evidence that the woman was often "flirtatious" with men, including other residents, even commenting on whether actors on t.v. were "sexy."  The conviction on sexual assault based on a mental defect was affirmed.  However, it seems significant that in that case the defendant was, in essence, a "stranger," a paid caregiver working in the nursing home, where the woman was living on the dementia wing. 

There is surprisingly little practical guidance for families.  One of the best known books is "The 36-Hour Day: A Family Guide to Caring for Persons with Alzheimer's Disease, Related Dementing Illnesses, and Memory Loss," by Nancy L. Mace, M.A., and Peter V. Rabins, M.D., M.P.H.  This book is written in plain language, tackling many of the toughest questions faced by families and caregivers, but even it does not directly resolve the question of who makes the decision on "consent" to sexual activity: 

"The sexual needs and behaviors of residents in nursing homes are a controversial issue.  Sexual behavior in a nursing home differs in significant ways from such behavior at home:  It no longer is a private matter, but in one way or another has an impact on the staff, other residents, and the families of residents; and it raises the ethical issue of whether a person who is impaired can or should retain the right to make sexual decisions for himself.

 

While our culture seems to be saturated with talk about sex, it is the sexuality of the young and beautiful that is being discussed.  Most of us are uncomfortable considering the sexuality of the old, the unattractive, the handicapped, or those with dementia.  Nursing home staff members also often feel uncomfortable."

One can certainly imagine the concerns of the daughters of the wife in the most recent case, and their reasons for interceding on behalf of their mother while she was still living with the defendant. Their reasons to move their mother into a care facility seem understandable, and the husband seems to have cooperated with the transfer, even if he was unwilling or unable to comprehend the potential legal significance of that transfer. 

None of these facts make this an easy criminal case.  Adding to my concern, however, was information suggesting a civil dispute is pending over "who" is going to pay for Mom's nursing home care.

The Iowa criminal case against the husband  is currently scheduled for trial early in January 2015. For a detailed feature on the case, see Bryan Gruley's article for Bloomberg News, "Can A Wife With Dementia Say Yes to Sex?"   

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Cognitive Impairment, Crimes, Dementia/Alzheimer’s, State Cases, State Statutes/Regulations | Permalink

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