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.

scales of justice/by waferboard, via Flickr

scales of justice/by waferboard, via Flickr

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:

  • Mental capacity of patient. In this case, she is impaired, but not so much that she can’t respond appropriately to affection and companionship—as evidenced by the couples’ hugs, smiles, and hand holding.
  • Prior relationship. The couple is described as having a loving, though not long-term relationship. If true, it may tip the scales toward an understanding of her consent as valid. A considerably higher standard of mental ability would be warranted to consider that she had decision-making capacity for sex with a stranger than with a beloved spouse.
  • Advance directive statement or equivalent. It would be helpful if an advanced directive or similar document had been prepared expressing her wishes about sex as her dementia increased. While this is not standard in advance care planning, this case suggests that it may be a good idea for some couples.
  • Use of force/coercion. Any indication that she was subjected to force or coercion would negate claims of her consent.
  • Prior expressed feelings about sex and/or sexual behavior. If the behavior was consistent with the couple’s prior behavior, this would tilt toward consideration of the consent as valid. If her behavior instead appeared to arise as a a function of the disinhibiting effects of dementia—as seen for example when dementia patients attempt sex in a public area—this would cast doubt on the validity of the consent.
  • Potential negative consequences. In this case, unwanted pregnancy is not a concern. Other potential consequences might be sexually transmitted diseases or potential damage to another preexisting relationship (“cheating”).
  • Contextual considerations. In this case, the quality of the familial relations (for example, adult children may dislike their parent’s new spouse); the role of institutional power wielded by the physician, nurses, and facility; and the practices of similar facilities could all play a role in considering this specific case.

There is much at stake in this case—the patient is extremely vulnerable and must be protected from sexual predation. However, sex is one of life’s goods, not simply a sensual pleasure but a way to experience deep loving harmony with another, and should not be lightly denied to a person in the final stages of life. As viewed from the outside, most of the factors (the apparent lack of force, the prior relationship, her behaviors indicating affection toward the husband, and the lack of negative effects) seem to tip the scales in favor of allowing such a couple to proceed with their sexual activity.

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