APRIL, 2015
Edie Brous
Nurse Attorney
118 East 28th Street
Room 404
New York, NY 10016
Tel. (212) 989-5469
Fax. (646) 349-5355

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Henry Rayhons was criminally charged with having sex with his wife while she was in a nursing home with severe Alzheimer’s. The American Journal of Nursing posted a nursing ethicist’s response to the case. Douglas Olsen has rightly noted that, although the woman in this case has severe mental impairment, “…that does not necessarily mean that she lacks the capacity to consent to sex with her husband.” That might very well have been the determining factor in this matter.

Sexual abuse is defined differently in each state but the general requirement to convict a person of such a charge is that the sexual act was done without the consent of one of the parties. The Iowa Attorney General charged Mr. Rayhons under Iowa law with Sexual Abuse in the Third Degree – a Class C felony carrying a potential penalty of ten years imprisonment. The statute defines sexual abuse as, “[a]ny sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances: The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other; Such other person is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and wrong of conduct in sexual matters; Such other person is a child.” (Emphasis added)

To defend against criminal charges, defendants must create reasonable doubt. In this case, Mr. Rayhons could assert that:
He did not commit the act – he had an alibi or was misidentified and someone else engaged in sexual relations with Mrs. Rayhons;
or Mrs. Rayhons consented to the sexual activity. Direct evidence of consent is difficult to establish, particularly when the other party is incapacitated. It is worth noting that even with severe forms of dementia; patients can still have lucid moments. Additionally, a person can be unable to perform certain cognitive tests but still have sexual desires and benefit from physical intimacy.

A New York Times article noted that, “[t]here is no allegation that Mrs. Rayhons resisted or showed signs of abuse.” Indeed, the Rayhons had a loving and affectionate relationship; Mr. Rayhons visited her day and night; and the staff noted that she was always happy to see him. The facility had a policy permitting consensual sex between residents. Providers should be aware that failure to permit consensual relationships for patients with mental disabilities can be discriminatory and a violation of one’s civil rights. As long as 13 years ago, Holly Wade noted that, “[i]ndividuals with significant disabilities continue to encounter discrimination with regard to their right to participate in both education that will lead to an understanding of their sexuality and opportunities to engage in sexual activity and expression.” Her article, Discrimination, Sexuality and People with Significant Disabilities: Issues of Access and The Right to Sexual Expression in the United States, can be retrieved at http://dsq-sds.org/article/view/369/485.

The prosecutor had the burden of proof and needed to convince the jury beyond a reasonable doubt that Ms. Rayhons did not consent to having sex with her husband. He needed to convince the jury that her severe Alzheimer’s rendered her unable to do so because a mental defect or incapacity precluded her giving consent.

Providers and facilities must thread the needle in balancing the patient’s right to full sexual expression with prevention of exploitation. Patients with disabilities are vulnerable and do need protecting. But we cannot indulge our own prejudices. Policies regarding sexual activity for residents cannot be based upon ageist views of sexuality or condescending attitudes towards people with disabilities.

The defense counsel for Mr. Rayhons, Joel Yunek, noted that a guilty verdict could make other spouses afraid to visit for fear of being charged, “It's an unprecedented case. The decision that you make here will be debated, discussed, followed for years." He won the case and Mr. Rayhon was acquitted on April 22.

The New York Times article can be accessed at http://www.nytimes.com/2015/04/14/health/sex-dementia-and-a-husband-henry-rayhons-on-trial-at-age-78.html?_r=0. Douglas Olsen’s excellent analysis can be accessed at http://ajnoffthecharts.com/2015/04/21/a-nurse-ethicists-analysis-of-a-recent-nursing-home-sexual-consent-case/.
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Copyright © 2015, Edie Brous, RN, Esq.