Rape Charges for a Elderly Husband Having Sex with His Wife with Dementia?

[WhyNot]

@Stonebow

There are always easier ways. Doesn’t mean people don’t force the issue anyway.

Can we agree on an extreme case, and perhaps walk it back to where the difference is?

1. I assume we all think that if she, of sound mind and body, were to consent, that would be fine.

2. I also assume that we can all agree that if she were in a Terry Schiavo-esque state, then him having sex with her regardless of their relationship prior to her being admitted for care, would be wrong.

Any disagreement on these two points? If not, then we are getting hung up on whether she could meaningfully consent due to her medical condition. Some say yes, some say no, and we do not have all of the facts. I am fine with that so long that we can also agree that there is somewhere along the spectrum of dementia where she lacks the capacity to consent to sex with anyone. I can’t exclude the husband in ‘anyone’ because the law forbids marital rape along the same grounds.

However, I don’t trust the husband’s assessment of her state of mind because on it hinges him getting what he wants. And I do think that if he took issue with the diagnosis, there were lawful means to protest and have the decision overturned rather than sneak a quickie. That, right there, pings my creep-o-meter.

Sure. I agree with everything up until your last paragraph.

I trust the husband because she trusted him. That doesn’t mean I think husbands can’t rape their wives. It means I think we need to have some evidence when accusing a spouse of rape, because there is a previous establishment of trust. I think that evidence should be evidence of refusal, like victim testimony - which we don’t have here, or evidence of harm - which we have evidence of absence of in this case. The rape kit shows she wasn’t physically hurt. Her nurses reports of her demeanor indicate she wasn’t emotionally hurt. Her roommate’s reports of her actions indicate she didn’t cry out *or *remain stoically silent, which strongly suggests no trauma during the alleged rape.

Now, I’m not speaking as a lawyer. I have no idea what the legal standards for evidence are on a spousal rape case. I’m speaking as someone trained to recognize and report elder abuse, and that mostly requires suspicion or evidence of harm or potential for harm. I’m just not going to report a man for having sex with his wife if she seems okay with it. There’s no harm there. (And again, I agree that there may be, even must be, more going on here than what’s in the public reports. I can only argue from what we know now. My opinion may change drastically once testimony is made public.)

What we’re really talking about here is a form of statutory rape, not forced sex. And if we’re going to take something that usually applies to protecting children and apply it to an adult, then yes, I want the right people with the right training and the right assessment tools making the determination that we need to infantalize this person and take away their human rights. That would be a judge, listening to the testimony of a medical doctor with training in dementia assessment and treatment. That’s not a nurse, not a family practice doctor, and not daughters, no matter how powerful their positions in the community.

Adults with metal disabilities are allowed to have sex. It’s perfectly legal for a “normal” person to date, have sex with, and marry a person with an IQ of 40. Most of us would be squicked out by it, but there’s nothing illegal about it.

[kayT]

WhyNot, I just wanted to say how much I appreciate your contributions to this thread. And if I ever find myself helpless at the hands of the medical community I hope someone like you is around.

[DSeid]

@WhyNot

… What we’re really talking about here is a form of statutory rape, not forced sex. And if we’re going to take something that usually applies to protecting children and apply it to an adult, then yes, I want the right people with the right training and the right assessment tools making the determination that we need to infantalize this person and take away their human rights. That would be a judge, listening to the testimony of a medical doctor with training in dementia assessment and treatment. That’s not a nurse, not a family practice doctor, and not daughters, no matter how powerful their positions in the community. …

Pretty much agreed. Not sure if a courtroom is always the best or a required venue but the seriousness of stripping away someone’s right to consent to something so personal as physical intimacy, especially at a point in their life when that may be especially important and beneficial to their quality of life, needs to be respected.

The Czarcasm standard of a presumption of inability is clearly wrong.

The presumption must be of competence with a burden of proof being to document that such does not exist.

Is there convincing evidence that the individual, at the time, does not recognize who the individual they are consenting to have sex with is?

Is there convincing evidence that the person, at the time, is unable to express, either verbally or non-verbally, that they desire to have physically intimate relations with that individual and/or conversely unable to express that they do not wish to?

Is there convincing evidence that they do not understand what potential risks the activity entails and are thereby putting themselves at significant risk of harm?

If the answer to all of those qustions is “no” then there is presumed ability to consent.

Does that seem like a reasonable standard?

An inability of the person to state the names of their children or remember three words after three minutes of questioning, naming the year, month, day of the week and what town (s)he is in does not provide any evidence to bear on those issues, yet, from what is in the public record to date, was the basis of removing Ms. Rayhon’s basic human right make her own decisions regarding physical intimacy, while all that has been reported indicates that conversely strong evidence exists that she did recognize her husband, that she was capable of expressing a wish to have intimate physical relations and a wish to not, that she had expressed a desire to in front of witnesses, and a lack of any not understood risks inherent in the activity.

[doreen]

@WhyNot

Adults with metal disabilities are allowed to have sex. It’s perfectly legal for a “normal” person to date, have sex with, and marry a person with an IQ of 40. Most of us would be squicked out by it, but there’s nothing illegal about it.

There might be - in my state , at least the very same law would cover a mental incapacity whether it was due to a low IQ or dementia or psychosis. As a matter of fact , i recall reading once that in my state the presumption flips at a IQ of 50 - above are presumed capable and below are presumed incapable.

[outlierrn]

@Stonebow

However, I don’t trust the husband’s assessment of her state of mind because on it hinges him getting what he wants. And I do think that if he took issue with the diagnosis, there were lawful means to protest and have the decision overturned rather than sneak a quickie. That, right there, pings my creep-o-meter.

I dunno, I’ve seen nothing to make me trust his assessment less than the other players in this case.

There’s also a sexist undertone in some of the assumptions in this thread; that he was getting’ his needs met, 'cuz, ya know, guy. If the roles were reversed would so many people assume a lucid wife was taking advantage? I doubt it.

[WhyNot]

@doreen

There might be - in my state , at least the very same law would cover a mental incapacity whether it was due to a low IQ or dementia or psychosis. As a matter of fact , i recall reading once that in my state the presumption flips at a IQ of 50 - above are presumed capable and below are presumed incapable.

If your state has such a presumption, it’s behind the times. While IQ is often brought up in court, it should not be the determining factor. The states have six tests they use to determine if a person with an intellectual disability can consent to sex, and they’re not based on IQ. They’re nicely summarized here: Sexual abuse and intellectual disability - Wikipedia

@DSeid

Pretty much agreed. Not sure if a courtroom is always the best or a required venue…

A courtroom is *always *the place where one determines competence, because competency is a legal thing. Doctors can have an opinion about competence, but only a judge can make it into a legal standing. Competence/capacity is what gives someone the right of consent. (I have to explain this a lot to family members who wave a PoA for healthcare at me. That’s nice, and I’ll put it into the file, but until you’ve also got a piece of paper from a judge that Mom is incompetent or incapacitated, your PoA is useful as fire starter, and that’s about it. The PoA does not become effective until the patient is deemed incompetent or has an incapacity relating to medical decision making, and that happens in court, not a doctor’s office or your living room.)

Found this great paper, which has caused me to reverse course on one of my previous statements: The author makes a compelling case that a primary care/ family practice doctor can assess and evaluate for this and deliver testimony to the judge. However I’m still unconvinced it was properly done in *this *case.

While this paper was written about the mentally disabled, as opposed to those with dementia, I think it’s got some pertinent information.

Medicine can claim the doctrine of informed consent as its own. By contrast, the concept of competency belongs to the legal realm. Competency is the individual’s ability to make rational, informed decisions concerning oneself or one’s property.21 There is no “medical competency” per se, only the legal competence to make medical decisions. A competent individual is able to give informed consent.18 Courts often rely on a physician’s medical evaluation to determine the mental capacity to make legally competent decisions regarding medical care or sexual encounters, but “medical competency” is never established as an existing entity. For example, a patient in a state of coma, unconsciousness, or severe dementia is generally deemed to be incompetent to make medical decisions. A mentally retarded individual, however, may demonstrate adequate processing skills to be able to make rational decisions regarding sexual activity and thus qualify as competent for such an activity. Thus, it must be emphasized that competence is a legal concept and is not a medical concept.27 As Michael G. Farnsworth, M.D., a practicing psychiatrist, notes, “A medical opinion of incompetency, regardless of the source, remains only an opinion until a judicial ruling on the evidence is given.”21(p182)

The 1982 Presidential Commission on Ethical Decisions in Medical and Health Care proposed 3 core elements of competency: a possession of a set of values and goals, the ability to communicate and understand information, and the ability to reason and deliberate.1 Thus, it is the individual’s process of decision making, rather than the choosing of a specific outcome, that determines competency.27

Competency is decided subjectively on a case-by-case basis; that is, there is no absolute IQ designation for an individual to be positively assessed for competency to consensual sexual activity. Also, competency is not absolute for all actions; for example, an individual may be assessed as competent for daily living tasks but deemed incompetent for consensual sex.

In helping to determine legal competency, a physician or psychologist generally asks a series of questions or utilizes one of several competency assessment tests to probe the individual’s various neurologic, psychological, intellectual, and physical capacities to make an informed decision. To date, no one test has emerged as providing superior criteria with which to determine the competency of a mentally retarded individual for sexual activity. Because a standard assessment test is neither devised nor universally accepted, the question of decisional competency is currently resolved by analyzing the various components of mental competency.

By nature of the ongoing relationship with the patient, the primary care physician is arguably better positioned than the psychiatrist or psychologist specialist to assess mental competency of the mentally retarded individual. Farnsworth, in a 1989 article,21 set up a valuable algorithm for use in the primary care setting. The primary care physician is able to assess competency by assessing the 3 main aspects as follows: awareness of the nature of the situation, an understanding of the issue at hand, and the ability to use information rationally to arrive at a decision.21 If, during the conversation, the physician deems the patient capable of all 3 categories, then the opinion of competency can be confidently proclaimed. If there are serious deficits in understanding these 3 main criteria, then the primary physician is fully qualified to prepare the proper documents for the court, including relevant descriptions of the patient and opinions from family members, occupational therapists, psychologists, and other observers.21

Sexual Abuse of the Mentally Retarded Patient: Medical and Legal Analysis for the Primary Care Physician - PMC

[DSeid]

I defer to your on the ground expertise but it does conflict with what I have read elsewhere and what seems to be what actually occurs as a matter of course, barring someone wanting to have the clinical venue decision countermanded. Some states require a court ruling but not all.

Judicial determination of competency means it has been formally made by a court of law. Judicial determinations are required in some states, or are used to settle disputes when serious questions are raised about the person’s competency, or the clinical evaluation itself. Even in the event of litigation, a court of law will listen to, and heavily rely upon, the professional expert’s testimony.20 In the State of Illinois, competency is always judicially determined and the person is represented in the proceedings by a Guardian ad Litem.

Interestingly about doreen’s New York …

The legal definition of competency to consent to sexual activity depends on state law and varies greatly among states. For example, New York State has the narrowest definition of competency to consent, while its neighbor, New Jersey, has the broadest definition.

Also interesting from your link regarding how individual states judge the “legal capacity of the mentally retarded individual to consent to sexual conduct.” -

The “nature and consequences test” is employed by 13 states (26% of the nation): Alaska, Arizona, Arkansas, Indiana, Iowa, Kansas, New Mexico, Oklahoma, Pennsylvania, Tennessee, Vermont, Virginia, and Wyoming. This test is remarkably similar to the medical informed consent doctrine in which the patient must understand both the nature and consequences of a procedure; this test also parallels the medical consent doctrine in that the individual must understand the risks of behavior, including negative outcomes.

(Bolding mine.)

[WhyNot]

@DSeid

I defer to your on the ground expertise but it does conflict with what I have read elsewhere and what seems to be what actually occurs as a matter of course, barring someone wanting to have the clinical venue decision countermanded. Some states require a court ruling but not all.

Judicial determination of competency means it has been formally made by a court of law. Judicial determinations are required in some states, or are used to settle disputes when serious questions are raised about the person’s competency, or the clinical evaluation itself. Even in the event of litigation, a court of law will listen to, and heavily rely upon, the professional expert’s testimony.20 In the State of Illinois, competency is always judicially determined and the person is represented in the proceedings by a Guardian ad Litem.

I’m not sure what I wrote that conflicts with that. I agree with it completely, so I suspect the issue was in my wording, not my intent. I think we’re largely in agreement here.

[bengangmo]

@DSeid

But they do.

As Whack-a-Mole’s posts illustrate, residents having sex is icky. Secretions are nothing too much for any caregiver to deal with, but it is much easier to ignore and deny sexuality than to have to deal with the reality that there are adults who continue to want to have sex. And once family gets involved? The easy out is to claim lack of ability to decide. Happens in many places with typical families. Especially though as it turns out, with this family.

Linda Dunshee, the daughter, just happens to be the executive director of Link Associates, a fairly large Des Moines organization that provides support services for intellectually disabled individuals which no doubt interfaces with nursing homes and those who need them. They are pretty big in the area. The other daughter, Suzan Brunes, is a hospital administrator who has been both CEO of a local hospital and Director of Nursing at the regional medical center. Also someone who could break (or make) the future for a small nursing home. Just doing what they said to do and running over a milquetoast loving husband is much to gain. It would take a family doctor and nursing staff with real spine to stand up to that combination.

Linda Dunshee and Suzan Brunes chose to place their mother in a small nursing home (50 residents) with no specific dementia expertise. There are multiple other area facilities with dedicated focus to dementia care, for example Arden Courts. But no question they would not have been able to ride roughshod there so well.

There are in fact standards of care for deciding ability to consent with dementia. Dementia experts know what they are. The family doctor who signed what the daughters shoved in front of him did not know them or chose to ignore them. He and the facility seem to have been chosen partly with that in mind.

This is a potentially interesting side matter -

Just how much “bullying” went on here? Would the same treatment have been given to daughters that didn’t hold these sorts of positions?

Should the employers of the daughters be holding their own investigations on whether there have been any abuses of their position?

[needscoffee]

I’ve known closely two elderly (previously married, now single) woman relatives with dementia. Both were *very *eager to have sex, though were quite confused about who might be an appropriate partner (the 21-yr-old male aide, the janitor, the son mistaken for the ex-husband, etc). I don’t know if their sexual desire became more so with their dementia, or if it just became more outspoken.

If the husband and wife in the OP had had a loving sexual relationship before her dementia, I see nothing wrong with continuing it after the dementia took hold, provided the wife was game. Having dementia doesn’t mean that you can’t participate in the activities you enjoyed in the past. The fact that it’s sex doesn’t make it an off-limits activity, in my mind. (Of course, this assumes that the wife in the OP did want it.)

[DSeid]

@WhyNot

I’m not sure what I wrote that conflicts with that. I agree with it completely, so I suspect the issue was in my wording, not my intent. I think we’re largely in agreement here.

I apologize if I misunderstood.

[DSeid]

@bengangmo

This is a potentially interesting side matter -

Just how much “bullying” went on here? Would the same treatment have been given to daughters that didn’t hold these sorts of positions?

Should the employers of the daughters be holding their own investigations on whether there have been any abuses of their position?

With what is public record answering those questions is exclusively in the realm of speculation. Maybe more will come during the trial, maybe not.

But given that no one seems to be aware of a single other case in which a husband has been similarly charged, in the context of a lack of evidence that sex after the statement of sex is henceforth forbidden even occurred, and the fact that such a written order is not something the nursing home has apparently done before, well … it does seem that this husband was treated particularly as immaterial and someone to be constrained in comparison to how husbands usually are. And I am sure that other family conflicts have existed.

[Learjeff]

@ddsun

The equivalent would be, distasteful as this is, if someone had taken all of her money.

I’ll agree to this equivalent, if that someone was the person she routinely gave all her money to.

I acknowledge the folks who say there is an issue here. It’s definitely not clear cut, one way or the other. Legally, the onus seems to be on the defendant, if she’s found to have been legally incompetent.

But do we really want to doom anyone in that situation (e.g., with Alzheimer’s) to a life devoid of sex, regardless of their wishes?

Am I going to have to add to my living will, that in addition to being legally empowered to pull the plug on me, my wife has my explicit permission to ravage my body any time she wants? (I know her well enough and have enough respect for her judgment to apply this permission wisely. She’d ick out at having sex with someone who didn’t recognize her, unfortunately for me.)

[Freudian_Slit]

There is a NYT piece on this case. It’s complicated. I’m not sure exactly how I feel. It definitely sounds like the woman in question was pretty far gone:

In the days before being placed in a nursing home in Garner, Iowa, last year, Mrs. Rayhons, 78, could not recall her daughters’ names or how to eat a hamburger. One day, she tried to wash her hands in the toilet of a restaurant bathroom.

Plus, the man agreed, too.

The center’s doctor, Dr. John Brady, wrote: “No.” Mr. Rayhons was told the recommendation against having sex and indicated it would not be a problem, according to Ms. Dunshee.

But again, similar to WhyNot’s points:

“Touch is one of the last pleasures we lose,” said Daniel Reingold, chief executive of the Hebrew Home at Riverdale, in the Bronx, which pioneered a “sexual rights policy” for residents in 1995. “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?”

[DSeid]

FWIW found not guilty.

[PastTense]

One of the articles:

To win a conviction, prosecutors had to prove two main things: that Rayhons had sexual contact with his wife after being told not to, and that Donna Rayhons lacked the mental capacity to consent. The defense cast doubts on both points.

Several factors could have raised doubts in jurors’ minds:

There was no eyewitness to the alleged sex act.
Donna Rayhons' roommate, who tearfully complained that night about hearing something improper going on behind a curtain, never specifically told staff members the sounds were sexual. The defense lawyer called the 86-year-old woman to the stand last week. When he asked her whether the sounds were sexual, she replied: "I really can't say."
An exam done on Donna Rayhons that night found no sign of injury. Also, lab tests done on swabs from that exam found no conclusive evidence she'd recently had sex. ...
The recommended limit on sexual activity was only briefly noted at the bottom of a one-page document presented during a meeting of family and staff members last May 15. The subject was discussed for only about a minute during the meeting, which lasted about a half hour. 

Rayhons: 'Truth finally came out' with not guilty verdict

[Muffin]

PDF Sally-Marie Bamford, International Longevity Centre – UK: The last taboo: A guide to dementia, sexuality, intimacy and sexual behaviour in care homes.

[Senegoid]

@DSeid

FWIW found not guilty.

Another article:
Iowa Man Found Not Guilty of Sexually Abusing Wife With Alzheimer’s, Pam Belluck, New York Times, April 22, 2015.

[Leaper]

Without knowing what exactly “consent” and one’s “wishes” mean to someone with diminished mental capacity, I’m not sure I can really form a solid opinion.

[purplehearingaid]

I think there should be criminal charges against the husband b/c his wife is not able to consent to having sex. Just b/c the guy is the husband it does not mean he can have sex with his wife any time he want it. This is elder abuse , I was a health aide and I would had to report this if I knew a client with dementia was being forced to have sex when she could not consent to it.