Buting ,Williams & Stilling ,S.C. | A Criminal Defense Law Firm

Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

Case raises issues of sexual consent among dementia patients

On Behalf of | Apr 17, 2015 | Sex Crimes

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

Archives

FindLaw Network

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)