By Douglas P. Olsen, PhD, RN, associate professor, Michigan State University College of Nursing in East Lansing, associate editor of Nursing Ethics, and a contributing editor of AJN, where he regularly writes about ethical issues in nursing.
An 78-year-old retired state legislator and farmer in Iowa is currently on trial for having sex with his wife, who has severe Alzheimer’s disease, in her shared room in a nursing home. He has been charged with rape.
The case highlights two ethical questions or conflicts:
- When is protection needed and when is it intrusive and harmful?
- What are the mental abilities required to consent to sex?
Consenting to sex is not the same as informed consent for treatment. In treatment, a clinician obtains consent to act on (treat) the patient in a way that will benefit the patient. By contrast, proper consent for sex is mutual and both parties benefit.
To extend the comparison: a patient’s decision to consent to treatment is generally made by balancing the benefits, harms, and risks to the individual patient. The decision to engage in sex often involves consideration of another’s satisfaction—it is not unknown for one spouse to agree to sex to please the other, even though he or she would not otherwise want sexual contact.
Another complicating factor in the question of sexual consent is that gender matters. While the social ideal is to consider sex consensual, societal understanding often tilts toward considering the male as the aggressor and the female as the gatekeeper. In addition, we often assume that power, especially physical power, is not equal in sexual relations.
Decision-making capacity. A patient must have decision-making capacity to give valid consent for treatment. Such capacity is not considered a blanket characteristic, but is assessed in relation to the risks, benefits, and complexity of the specific treatment decision.
The assessment of capacity in relation to the specific decision can also be applied to consent for sex. Unfortunately, a proper level of mental ability needed to confer capacity for sex is not clearly established and can vary in relation to circumstances. The woman in this case had severe mental impairment, but that does not necessarily mean that she lacked the capacity to consent to sex with her husband. Differences of opinion regarding the level needed for her valid consent are illustrated in the following summary of an exchange from the trial included in a recent New York Times article:
Mr. Yunek [the defense attorney] asked Dr. Brady [the center’s physician] if “Donna is happy to see Henry — hugs, smiles, they hold hands, they talk — would that indicate that she is in fact capable at that point of understanding the affection with Henry?” Dr. Brady said no, calling that a “primal response” not indicative of the ability to make informed decisions.
The defense attorney is implying that her actions indicate desire and willingness and that this is a sufficient level of mental ability for valid consent; the physician, on the other hand, suggests that such “primal responses” are not sufficient to indicate a level of mental ability. This is not a disagreement about what her ability is, but about what is the proper degree and type of ability needed to consent. It’s not so much a disagreement about facts as about values.
One approach to establishing whether sexual contact between these two older adults was appropriate is to examine each relevant factor. These include the following: Read the rest of this entry ?