There is a fascinating case winding its way through the criminal court system in Iowa where a 78-year-old man has been charged with sexual abuse for having sex with his wife who has dementia and lives in a nursing home.

There seems to be pretty clear evidence that some type of sexual activity took place but only he knows the exact nature. According to an article at Philly.com, a physician at the facility where the man’s wife lived determined that she was too impaired to consent to sex, which led to charges being filed.

Note:  Since this article was first written, the case has resolved with the husband being acquitted, but the issues remain.

The Issues

There are so many difficult issues here and when the resident lives in a senior community, they all land at the feet of the senior community leadership:

• While the story only hints at this, it is likely this is more about feuding families than about sexual behavior. She was his second wife and there are two daughters in the mix from the wife’s first marriage.

• The most fundamental question is this: Does a person with dementia lose all of their power to determine how they live their life? The first blush argument is that they no longer have reasoning power to make any decisions. But of course they do have some rights and they mostly get expressed in the context of agitation or calmness.

• What if you had a husband and wife both with dementia living in the community in an apartment, could they have sex?

• What if two non-related residents begin exhibiting sexual behavior?

• At some level, it would be easiest for the community to just say they have a policy that residents can’t have sex with another person since they can’t consent. But, what if it turns out that when a resident does have sex it has a powerful calming influence on them?

• Might it be that to not allow a resident with dementia to have sex, would be a violation of a resident’s rights?

• Sexuality and the need for human touch seem to be powerful needs in every human. They can make a huge difference in emotional and physical well-being. Do they just come off the table?

• It seems likely that if the husband is found guilty, a lawsuit against the senior community will be close on it’s heal, making this a very real issue for every community.

Reducing The Risks

These kinds of issues are never cut and dried. You can never write a policy that addresses every permutation, provides clear solution,s and easily protects the community and the residents. It is these kinds of issues that remind us that creating another policy does not necessarily lead to better outcomes . . . a better resident experience.

The best, but imperfect solution, is to have lots and lots of conversations with all the stakeholders: family members, the significant other who does not have dementia, physicians and others. The conversations need to be open and honest. If it gets at all contentious, it might even mean bringing in legal counsel, licensing, and the Ombudsman.