Posted By Matt Martin, Cathy Hudgins, Barry J. Jacobs,
Wednesday, April 22, 2015
On April 7th, the Washington Post reported on a case involving Henry Rayhons, a former member of the Iowa House of Representatives, and criminal charges of third-degree sexual abuse. State prosecutors charged Mr. Rayhons for having sex with his wife, Donna Lou Rayhons, in August 2014 while she was incapacitated by dementia and living in a care facility. Jury deliberations began on Monday April 20th, 2015.
Henry and Donna Lou married after their longtime spouses had died. A few years into the marriage, Donna Lou was diagnosed with dementia. In May 2014, two of Donna Lou’s daughters met with care facility staff members to create a care plan for their mother. They, along with a doctor, decided that mom was no longer able to consent to sex. Henry was informed of this decision.
Donna Lou died in a nursing home in August 2014 after a four-year battle with Alzheimer’s. Henry was arrested and charged with sexual abuse a week later. According to law experts, this is the first case of its kind regarding capacity and dementia. At what point in dementia does a spouse or partner lose the right to say yes? Cathy Hudgins and Barry J. Jacobs provide commentary below. Click here for another viewpoint on this case.
CATHY HUDGINS: After reading this article and accompanying documents, I had more questions than I had answers. Early in my career as a Marriage and Family Therapist, I practiced at an adult day services center that served participants with various types of dementia and cognitive impairment. In working with these older adults and their families, I gained an appreciation for the extreme feelings of loss and confusion related to how to proceed with relationships and basic life issues. I worked with many family members and caregivers who had little guidance or experience prior to the onset of the disease. I remember giving these folks some room to learn and make small mistakes as they navigated the decline of their loved one. However, we taught our families that there were lines that no one would be allowed to cross, and those lines were drawn by the state’s definition of elder abuse.
Mrs. Rayhon’s disease progression was determined by the provider team, which included her family, at the facility through a validated screening tool and through the expertise of the providers and staff. As a way to educate and draw the line for Mr. Rayhon, it was conveyed overtly that she would no longer be able to consent to sex. From what Mr. Rahyon’s family wrote in rebuttal to his case, they believe (and I assume in concert with his belief and actions) that there should be no such restrictions to protect patients in a nursing home – even those that score a 0 on a dementia assessment. It is this kind of thinking that actually initiated protective services for vulnerable populations many years ago. The bottom line is that Mr. Rayhon knew that she could not consent, and he decided that his right to have sex with his wife trumped the law and the boundaries drawn for her based on an assessment of her capacity.
I do have several questions about this case, however. Does Mr. Rayhon have some type of cognitive decline or mental health problem that would make someone in his position as a law-maker disregard the law? While it does not sound like he had time with her prior to the sexual encounter to interpret her ability to consent at that time (I have seen several patients with dementia experience short windows of clarity), did he interpret something she did as consent?
Finally, I am not sure what Dr. Pearson meant by "at what point in dementia do you lose the right to say yes?” In my opinion, the ability to consent, if even possible at her stage of the disease, is transient, and the limitations associated with those moments of clarity are inconsistent at best. This fact is why the line must be drawn to protect vulnerable individuals, even from those who love them. There is no doubt that physical closeness can be curative and comforting. Nevertheless, there are other ways to satisfy this human need in lieu of an act that requires consent.
BARRY J. JACOBS: Some landmarks cases—whether legal or clinical—help us forge ahead into new territories of understanding and knowledge. Others, like signposts at the edge of frontiers, delineate the outer edge of the known world beyond which we are lost in cloudbanks and quicksand. The Rayhons case—about marriage, dementia and sexual consent—catapults us into a wilderness of clinical fuzziness, moral ambiguities, and legal murk.
We are all in agreement that sex should be consensual between intellectually capable adults. But determining exactly the point at which a person with a progressive dementia loses the capacity for informed sexual consent is not scientific at this point. It’s often clinical guesswork, based on wildly inappropriate measures (e.g., using memory test results to calculate degree of sexual understanding). The "line” that my colleague, Dr. Hudgins, refers to is not so clear; it is a legal construct, based on clinical impressions, extrapolations and opinions. This idea of a "line” is sometimes used to prevent people in nursing homes from engaging in sex, as if they lose that right once they enter the institution. The "line” was used in this case as a weapon by step-daughters in a power struggle with their step-father for control over their mother’s last months.
That is quite familiar in this family-and-illness drama (at least in the more detailed Bloomberg news story). Mr. Rayhons wanted to take care of his wife with dementia at home. Her daughters from her first marriage decided that he was in denial about her degree of impairment and, with the collusion of a family physician, placed her in a nursing home one day against Rayhons’ wishes while he was at a state legislative session 30 miles away. (As her husband, he should have had the legal right to make decisions about where she would reside. How did her daughters usurp that right?) After that, it appears that they sniped at one another and struggled over details of Mrs. Rayhons’ care at the nursing home. When the daughters took steps to protect their mother through limiting the privacy that their step-father would have with her, he responded by flouting the rules they set up. Seen from this perspective, his alleged act of having intercourse with his wife was, as much as anything else, a gesture of defiance toward his step-daughters.
A family-oriented professional could have helped these warring parties find some compromises and accommodations before the story’s climax (so to speak). Unfortunately, the professionals seem to have banded together to demonize the husband. He may have acted rashly or even naively but I don’t believe he’s a demon. And I don’t think an Iowa jury will determine he’s a criminal—just a lost and angry man who wandered into the poorly charted landscape of dementia and the law.
Matt Martin, PhD, LMFT, is Blog Editor for the Collaborative Family Healthcare Association. When he is not blogging or editing he teaches behavioral science to family medicine residents at the Duke/SR-AHEC residency program. Interested in writing for the blogs? Email Matt at firstname.lastname@example.org
Cathy Hudgins, PhD, LMFT, is the Director of the Center of Excellence for Integrated Care under the North Carolina Foundation for Advanced Health Programs. Dr. Hudgins has experience in Integrated Care management and development, crisis assessment and intervention, community-based and college-based outpatient counseling, in-patient assessment and intervention, and community mental health consulting. She has practiced in community mental health agencies, hospital and healthcare settings, as well as in private practice. She has also held a variety of posts in higher education administration and student affairs. She is an active member of the Collaborative Family Health Association and AAMFT and presents locally and nationally on Integrated Care.
Barry J. Jacobs, Psy.D. is the Director of the Behavioral Sciences for the Crozer-Keystone Family Medicine Residency and the lead faculty member for its super-utilizer program, the Crozer Connections the Health Team, and the Camden-Cooper-Crozer Hot-Spotting and Super-Utilizer Fellowship Program. He is also the author of The Emotional Survival Guide for Caregivers (Guilford, 2006).