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Case raises issues of sexual consent among dementia patients

There's little debate about the fact that sex crimes are among the most reviled and taboo offenses a person can be accused of. In the court of public opinion, particular sex crimes are sometimes regarded as more heinous than murder. Unfortunately, this public hysteria too often makes it difficult to have the tough-but-necessary conversations about sex crimes - especially cases where the accused individual's guilt isn't necessarily clear.

A recent case from the Midwest is making national news, in part, because it could easily happen anywhere, including here in Wisconsin. And as America's elderly population continues to grow, it is a scenario that could become increasingly common.

A 78-year-old retired politician in Iowa is currently facing charges for third-degree felony sexual abuse for having sex with his wife, also 78. There seems to be no evidence that the woman resisted the sex or tried to defend herself against her husband. But when the sex occurred, the woman was living in a nursing home and was suffering from severe Alzheimer's disease.

The law makes clear that minors below a certain age cannot legally consent to sex, even if they "consent" verbally and participate in sex with apparent willingness. The issue of consent is largely based on one's level of maturity and mental capacity. This is why, in many cases, mentally disabled adults cannot legally consent to sex.

Consent is a much murkier issue when it comes to patients with Alzheimer's or other forms of dementia. Although dementia is characterized by mental degradation and incapacitation, the progression of the disease isn't always linear. Symptoms can fluctuate from day to day or even from hour to hour. A patient may have small periods of relative lucidity followed by periods of confusion and impairment.

To complicate matters further, the desires for sex and physical intimacy are so primal and deep-rooted that some dementia patients may engage in the behavior without really understanding what they are doing. Some nursing facilities even encourage (consensual) sex and intimacy because it can be therapeutic for dementia patients. But again, the issue here is what constitutes consent, and who decides if a dementia patient can give consent.

This case may prove to be a bellwether on the issue of sex and consent among elderly people who are showing signs of mental deterioration. There are no easy answers in a situation like this, and we must hope that the legal system does its best to reach a fair and just verdict.

Source: The New York Times, "Sex, Dementia and a Husband on Trial at Age 78," Pam Belluck, April 13, 2015

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