The right to have intimate relationships is a fundamental right. The only limitation to this right is that both parties must consent to the relationship. Intimate relationships in which one side does not consent are criminal acts governed by a variety of criminal statutes. The question arises as to how we can be sure that both parties consented when one party has a cognitive impairment.
The issue of sex and people with cognitive impairments takes special consideration in residential facilities. On one hand, individuals with cognitive impairments live in these facilities because they need some sort of protection from the outside world. On the other hand, residents do not lose the right to have sex simply because they are older or have a disability.
Residential facilities grapple with this conflict, and they often have policies that address intimate relationships between residents. Some ban the activity outright between unmarried couples in their policies. Interestingly, I have never heard about a facility with this ban actually enforcing the policy. Rather, the facility and the family will keep a careful eye on the couple to make sure that both residents are safe and to offer help to deal with any issues that arise. One facility that houses special needs adults described how residents’ parents sometimes will pay for a hotel room to give the adults privacy.
In 2015, 78-year-old Henry Rayhons made the news when he was on trial for allegedly having sexual relations with his wife, Donna Lou, who was an Alzheimer’s patient in a facility in Iowa. Both Henry and Donna had been previously married, and Donna’s children did not like Henry. There were occasions where they did engage in intimate “play” in her room in the facility. Donna’s children filed criminal charges against Henry claiming that he raped Donna in the facility during a visit. There was no evidence that Donna had been physically harmed on the day the alleged rape occurred, and Henry claimed he did not have intimate relations with his wife. Even though a camera had been installed in the room, the camera’s view of this visit was obstructed by a curtain hung in the room. The matter went to trial before a jury and Henry was acquitted of the charges. Interestingly, it is not clear why Henry was acquitted. The jury could have believed that he did not have relations with his wife, and therefore, no rape occurred. Alternatively, the jury may have believed that if relations occurred, the wife had capacity to consent to those relations with her husband and, therefore, no rape occurred. (Read more >)
As another example, a client came to me with a concern. A family member, “Pat,” lived in the independent living portion of a facility with multiple levels of care – independent living, assisted living, and a memory care unit. Pat had some cognitive impairment. Pat willingly engaged in an intimate relationship with an employee from another part of the building. The question arises as to whether this relationship is criminal and, if not, should it be since he was not responsible for her care?
Former Supreme Court Justice Sandra Day O’Conner faced an interesting challenge when she placed her husband in a facility. Her husband suffered from Alzheimer’s disease and did not remember that he was married. He began a romantic relationship with another resident in the facility. While it is not clear whether they were intimate, Justice O’Conner would arrive at the facility and find him happily holding hands with his new girlfriend. While I imagine this would have been difficult to accept at first, apparently she was happy to see him enjoying his new life. What would the rights of her husband and his girlfriend have been if they had decided to be intimate and, similarly, what would Justice O’Conner’s rights have been as the still-legal wife? (Read more >)
When working with disabled individuals of any age, the issues are rarely clear-cut. Assuring consenting adults’ fundamental rights, such as the right to have sex, does not run counter to society’s goal of protecting people with disabilities from a world that they do not understand is the objective. As long as the individual is conscious, I am not aware of a single factor that determines whether an individual is competent to consent to sex. Rather, this decision requires an evaluation of each individual and an assessment of what that individual is and is not able to understand. The overarching goal of protecting individual rights to sex within a protected environment is achievable with careful thought, sensitivity, and the understanding that this right to intimacy does not disappear with age or infirmary.