Informed consent, sex and dementia on trial in Iowa rape case

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White-haired woman sits in a wheelchair in a nursing home room

Informed Consent, Alzheimer’s, Sex in Iowa

An Iowa jury ruled April 22 that a man is not guilty of raping his wife, who at the time of the alleged sexual act, was arguably unable to consent due to her Alzheimers.

The case, believed to be the first of its type in the nation, provided a rare window into the relatively unexplored intersection of sex and disability in the law.

Two widows, Henry Rayhons, a former state representative, and Donna, married in 2007. Two years later, Donna began experiencing symptoms of dementia, which indisputably evolved into a severe form of Alzheimers in 2014.

That spring, Donna’ s two daughters had her placed in a nursing home, in Concord Care Center in Garner, Iowa. In mid-May, her daughters sat down with one of Donna’s doctors and wrote a one-page document stating that she was no longer capable of consenting to sex.

On May 23, other nursing home residents reported hearing “uncomfortable noises” from Donna’s room. A video showed Henry dropping off her underwear into a basket on his way out of the care center.

One week after Donna died, at age 78, state prosecutors charged Henry with third-degree sexual assault, defined as having sex with a person suffering from a “mental defect or incapacity.” If convicted, Henry, 78, would have faced up to 10 years in jail.

Henry allegedly admitted to prosecutors that he had sex with Donna on May 23, although he later denied it at trial. There was no allegation that Henry forced himself on Donna, or otherwise believed that Donna had not consented.

After a week of testimony, the jury found Henry not guilty. The jury did not provide any comment, making it unclear as to whether it found that the facts were inconclusive to determine if Henry and Donna had sex on May 23, or if it found that they had sex that was consensual.

A number of disability health and legal experts weighed in one the case, most agreeing that it is unclear the extent to which people with dementia can consent to sex. Most agree that even people with severe form of dementia are capable of consenting to sexual activity at certain times, even if they are incapable during other periods.

“Touch is one of the last pleasures we lose,” said Daniel Reingold, chief executive of the Hebrew Home in the Bronx, told the New York Times. “So much of aging and so much of being in a long-term care facility is about loss, loss of independence, loss of friends, loss of ability to use your body. Why would we want to diminish that?”

“Alzheimer’s is really forcing us to think about sex and fidelity in a very new way,” University of Virginia Professor John Portmann told New York Magazine. “People didn’t live very long in the ancient world, so this problem never arose. And now people are living longer and longer, and until we find a cure for Alzheimer’s this problem is just going to get more and more urgent.”