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Consent and Dementia Patients: A Complex Legal, Moral Quandary

A 78-year-old former lawmaker in Iowa has been acquitted of criminal charges after it was alleged he had sexual contact with his wife, an Alzheimer’s patient residing at a nursing home. At issue was the prosecution’s contention that the woman lacked the capacity to consent to sexual contact. grandmothersad

Defendant had reportedly been informed by staffers to “limit sexual contact” with his wife of seven years, but it was a minute-long instruction that was part of an hour-long discussion, and he would later say he believed that to mean he was advised against having sexual intercourse with his wife for medical reasons. It was his contention that his wife initiated the sexual contact after that, and he assumed that this meant she was consenting. However, no one actually witnessed the act or could verify the exact nature of it.

These kinds of discussions are uncomfortable for family members and loved ones whose elder relatives and spouses remain in the care of a nursing home facility. The fact is, people don’t lose their desire for love and human affection when they are diagnosed with dementia. They shouldn’t be denied those things if it involves consenting adults. But the degree to which people with dementia or Alzheimer’s disease or other conditions can consent is a major question that many families and even nursing homes are grappling with.

We know in some cases, residents do form romantic relationships with one another, even if both are married. Perhaps most famously was the case of former U.S. Justice Sandra Day O’Connor’s husband, a nursing home patient who struck up a relationship with a fellow Alzheimer’s patient. O’Connor was quoted by media sources in 2007 as saying she was not jealous, but rather pleased that her husband was happy and comfortable.

But just because both people have dementia, does that mean they can both consent?

Take another recent case of alleged nursing home sexual abuse at a facility in Seattle, WA. There, according to news reports, a male dementia patient was accused of engaging in sexual activity with a number of his fellow residents in the dementia ward. However, family members of those other patients say this was a man who preyed on other patients, and staffers were aware of numerous instances of sexual activity occurring between residents before it was reported. In some cases, the fellow patients were unable to feed walk, feed themselves or even speak.

A sister of one of those woman said the nursing home became aware of a sexual encounter her sister had with the man, but only called to inform her that her sister was refusing to eat. It wasn’t until later that the sudden change in appetite was seemingly explained.

What’s more, those encounters weren’t reported to state officials or police until months later, at which time the man was removed to a different facility. Now, family members are exploring legal options, saying the nursing home covered up several known instances of sexual abuse.

Although these cases may indeed be nuanced and complex, nursing homes owe the highest duty of care to their patients. Even the mere suspicion of abuse should be taken seriously, thoroughly investigated and reported. Otherwise, there is the risk that if it is indeed victimization, it will continue.

Loved ones who suspect or have confirmed sexual abuse of a loved one residing in a nursing home should contact an experienced injury lawyer for advice on how best to proceed.

Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Husband acquitted of nursing home sex-abuse charge, April 22, 2015, By Tony Leys, The Des Moines Register

More Blog Entries:

Study: Nursing Home Fall Injuries Reduced With Special Flooring, April 26, 2015, Nursing Home Abuse Lawyer Blog

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