Dementia Sufferers and Sex

Your partner always has the right to say “no” to sex. The question is – if your partner has dementia, can he or she ever say “yes”?

Phrased slightly differently – are you committing rape every time you have sex with your partner who suffers from dementia?

That is a question that may get answered in an Iowa court, where Henry Rayhons , 78, is charged with a felony rape for allegedly having [consensual] sexual relations with his wife, also 79, at a nursing home where she lived. The prosecutor is arguing that Mrs. Rayhons lacked the capacity to consent to sexual activity because she suffered from Alzheimer’s.

This cutting-edge case came into being because of family discord, and was bolstered by Mr. Rayhons’ position as a state legislator.

It was a second marriage for both of the Rayhons. The newspaper reports state they were very much in love and devoted to each other. But Mrs. Rayhons had three daughters from her first marriage, and two of them weren’t happy.

When Mrs. Rayhons started to show confusion, the daughters spirited her away to a nursing home while Mr. Rayhons was away on legislative business. At one point they obtained guardianship over her. They were unhappy when Mr. Rayhons visited her and pushed to take his wife out of the nursing home. The daughters visited with a family physician, and helped create a plan placing restrictions on Mrs. Rayhon’s activities to ostensibly reduce her agitation.  They moved Mrs. Rayhons into a shared room to limit Mr. Rayhons’ contact with her.

The doctor’s plan included a statement that Mrs. Rayhon was not mentally able to consent to sexual activity. However, his conclusion was based on her score on a Brief Interview for Mental Status (“BIMS”), which is used by the government to identify nursing home residents with dementia. It does not gauge a dementia sufferer’s ability to make sexual and other decisions.

Sure enough, the new roommate reported that during a visit Mr. and Mrs. Rayhons’ had sex (which is disputed). The daughters pressed for the police to be called, and Mrs. Rayhons’ was taken to the hospital for a sexual assault test without Mr. Rayhons’ knowledge. The daughters pressed more, and Mr. Rayhons was forbidden to visit her room. Mrs. Rayhons, who had said repeatedly she wanted to go home from the nursing home, died in the nursing home from Alzheimer’s several weeks later. Mr. Rayhons was arrested three days after her death.

So how about it? Can someone with dementia have consensual sex?   Does a simple diagnostic test give a doctor the right to make that decision? Is this an area into which the state should intrude?

On a more basic level – should your adult children be able to deprive you of a loving relationship just because you have dementia?

The case was scheduled to start trial on January 28, 2015.