Questions of Consent in Case of 78-Year-Old Man Having Sex with his Wife

An elderly married couple has made national news after a 78-year-old man was charged with third-degree felony sexual abuse after he allegedly had sex with his wife, who was living in a nursing home, in May 2014. Staff members had told him eight days earlier they believed that due to her poor mental state caused by severe Alzheimer’s disease, she was not mentally able to consent to having sex.

It is quite possibly an unprecedented legal scenario that has led to a lot of speculation about whether the man will actually be convicted or if the charges will be dropped. All signs point to the man and his wife having had a loving relationship since they were married in 2007, after they had each lost their previous spouses. There are no signs that the woman attempted to resist the interaction or that there was any kind of abuse involved. She died last year so she cannot provide testimony, although even if she were alive, there would likely be question as to whether she would be mentally fit to answer investigators’ questions.

The woman’s daughter initially raised the concerns, as she reportedly felt that the man was engaging in sexual conduct that was inappropriate given her mother’s condition. A doctor at the nursing home said that he did not believe the woman was able to give consent. However, the woman’s family doctor did testify and say that although she scored poorly on memory and orientation tests, there have been studies showing that intimacy can have certain benefits for patients of dementia.

The questions at stake in this case are this: who has the right to determine whether a person with dementia can consent to sex, and how exactly do they go about making that determination?

This case raises difficult and sensitive questions.  And it points up that cases involving nursing home care require knowledgeable attorneys.  If you believe a loved one has not received proper care from a nursing home, meet with an attorney at [ln::firm_name].