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Can Dementia Patients in Florida Nursing Homes Have Consensual Sex?

The question of whether elderly patients with dementia may be able to engage in consensual sex is an uncomfortable one for the children and grandchildren of those in question.
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However, our Hollywood nursing home abuse lawyers view it as an important one to address in order to ensure their loved one’s safety and well-being.

On the one hand, we want our loved one’s final years to happy. Although it might be difficult notion at least initially – especially families of dementia patients who are still married – many come to the conclusion that this might mean offering a blessing to a romantic relationship with another patient.

On the other hand, such relationships are fraught with questions that are not only ethical and moral, but also regarding safety. The biggest underlying question is: To what extent can a dementia patient offer consent to a sexual relationship? We would never want to expose our loved ones to a situation in which they may in any way be coerced into a sexual relationship. But where do we draw the line?

There is no surefire formula, but there seems to be consensus that there is indeed a point at which a patient is too far gone mentally to reasonably offer consent. Determining what that point is, though, is not easy.

A recent series by Bloomberg News Reporter Bryan Gruley explored this topic in-depth.

The series opens with a call received by an Iowa nursing home director on Christmas Day four years ago. Staffers had discovered that a 78-year-old man and an 87-year-old woman had just engaged in intercourse. The man, a retired college professor, was divorced. The woman, a former secretary, was still married. Both had dementia.

Both the director and a top administrator at the center were fired. The assertion from the woman’s family members was that she was not in a position mentally to offer consent and that the facility failed to protect her from the man’s sexual advances.

We know that the craving for human touch doesn’t vanish once we reach a certain age. A New England Journal of Medicine Study published in 2007 found that more than half of respondents between the ages of 65 and 74 reported continuing to engage in sexual contact, as did nearly a third of those between the ages of 75 and 85.

It’s possible we could see those percentages grow as baby boomers, those who lived in a sexually-freer generation, continue to age.

This might be an uncomfortable fact for younger folks, but it’s important to understanding the greater issue.

In the Iowa case, the fact that a sexual relationship unfurled wasn’t entirely surprising. The two had reportedly “gravitated” toward one another, holding hands and spending long hours sitting close and talking. Staffers said the woman appeared “calmed” by the man’s presence. However, she referred to the man by her husband’s name, calling into question her mental capacity to consent. There was little question that the woman’s dementia was more severe than the man’s, but the question was whether that meant that the two couldn’t engage in a consensual relationship.

Initially, when nursing home staffers learned that the two were becoming friendly, they tried to dissuade the man from spending time with the woman, concerned about liability. Although there wasn’t any indication of force in these encounters, administrators initiated 15-minute checks on him to ensure he wasn’t being “overly-friendly” with the woman. However, a lack of staff meant that those checks couldn’t continue.

While sexual encounters between staffers and patients is expressly against the law, there is no law barring sex between residents. However, sex without consent is rape. This would be something that administrators would have to report to state regulators. But what if it appears consensual?

Many facilities believe that, generally, residents should have the right to engage in activities they would normally be able to engage in outside the facility, so long as it doesn’t infringe upon the safety or rights of others or themselves.

It’s important that nursing home administrators are protecting patients at all junctures. That means that such relationships must be closely monitored, and facilities must be openly and regularly engaging family members in the discussion is well.

Freeman, Mallard, Sharp & Gonzalez — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:
Boomer Sex With Dementia Foreshadowed in Nursing Home, July 22, 2013, By Bryan Gruley, Bloomberg News

More Blog Entries:
Nursing Home Abuse From Fellow Patients a Growing Problem, July 20, 2013, Hollywood Nursing Home Abuse Lawyer Blog

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