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When "Yes" Means "Yes" for Dementia Patients

Flickr / Pennsylvania National Guard

Closing arguments are scheduled today in the sexual assault trial of a former state representative. Henry Rayhons of Garner, Iowa may go to prison for having sex with his wife.

In March 2014 Donna Rayhons and her daughter Linda Dunshee had lunch. Dunshee, who had power of attorney, says her mother acted confused during the meal and had troubled using the restroom. 

"I went into the stall...helped her button and zip," said Dunshee while testifying in the sexual assault trial of her stepfather. "And I said 'OK, let’s flush the toilet and let’s go wash our hands.' And she turned around and washed her hands in the urine-filled toilet."

Later that month Donna Rayhons moved to Concord Care Center in Garner. Staff say simple activities like eating confused her, and her results on cognitive tests were very low.

On May 15, 2014 Concord Care's medical director Dr. John Brady told Henry Rayhons that Donna was no longer capable of consenting to sex. But on May 23 Rayhons allegedly had sex with his wife.

While he denies having sex with his wife on this date, the former state representative also says Donna Rayhons desired and initiated sex during her stay at Concord Care.

Donna Rayhons died  on August 8, 2014. Henry was charged with third degree sexual assault one week later.

Essentially the jury is tasked both with determining whether or not the Rayhonses had sex on May 23, and whether Donna Rayhons could consent. A guilty verdict could result in a 10-year prison sentence for Rayhons. 

This case has garnered national attention as it poses complicated questions on whether people with cognitive disabilities are capable of consenting to and enjoying sex. Many doctors and lawyers say though moderate-to-severe dementia patients have diminished cognitive abilities, that does not mean their sexual desires are less valid. 

“That basic instinct of having sex with a known person...known face, known body it’s a different area of memory,” says Dr. Yogest Shah, the director of Des Moines University’s Memory Clinic. “The memory we’re talking about is mainly the area of the brain called hippocampus in frontal temporal region. The sexual memory would be coming from the different parts of the brain.”

Social scientists who study the American aging process say being a “full person” is often linked to memory, and thus dementia patients are often infantilized. 

“It’s a really common refrain you hear. ‘They’re not themselves anymore.’ ‘Oh well, they physically now, but they actually died five years ago cause they had no memory,’” says University of Iowa anthropologist Emily Wentzell.  “However, just because there are cultural stigmas against people with different bodies or cognitive abilities having sex, if they want to have it, they should be allowed…They should be treated like adults.”

Wentzell cautions that people with cognitive disabilities are more vulnerable to sexual assault, but she says there are ways to determine if someone wants sex.          

“Some care facilities have sexual rights manifestos or practices where they use a whole range of kinds of processes, including just looking at the person, and looking attheir affect, to determine whether someone is consenting,” Wentzell says.

The charges against Rayhons are similar to those of statuary rape. In Iowa the general age of consent is 16. Whether someone younger than 16 wants or initiates sex with an adult doesn’t matter.

Katherine Pearson of Penn State’s Dickinson Law specializes in elder law. She says this sexual assault trial is about when “yes, means yes” for people with impaired cognition.

“The opinion of the doctor about consent was treated as the end of the conversation rather than the beginning of the conversation,” Pearson says. “There are very serious implications from a law that will treat an older adult like a child.”

Pearson says a civil hearing in which a judge hears from multiple people is a better way to determine whether a person can consent to sex. In Iowa there is no formalized process so prosecutors in this case are deferring to Dr. Brady and nursing home staff.

“This case has caused a discussion about in the same way we have advanced directives about end–of-life decisions, will we now want or maybe even need a document about that gives advanced directions about sexual intimacy,” Pearson says.

But for many that's a difficult topic.

“This is a case were parents and children have to discuss sex and aging in the most explicit terms possible," UI"s Emily Wentzell says. "Cultural speaking it’s not standard, it’s not normative, and it creeps people out.'

Wentzell, Pearson and Shah all say it’s a conversation worth having. Because it’s possible that if Henry and Donna Rayhons had sex on the night in question, it wasn’t assault but an expression of love.