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Beth Janicek
Beth Janicek
Attorney • (866) 735-1102 Ext 395

Can the Cognitively Impaired Consent to Sex?

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Time and time again we hear stories of the elderly being abused or taken advantage of. An issue that I have blogged on several times in the past is the matter of sex in old age, whether it’s consensual intimacy or sexual assault. A 2007 New England Journal of Medicine study confirmed that sex remains an important part of life for older people, and some organic brain changes of old age are characterized by increasingly sexualized behavior. The issue of consent and intimacy is a matter that the disability community has great concern over. Unfortunately, when the issue relates to sex in old age, it receives little attention. Although largely hidden, elder sexual abuse can take many forms such:

  • Grandmother raped by her drunk grandson
  • Wisconsin minister who regularly came to the nursing home to have sex with his comatose wife
  • Sexual predators in facilities preying upon vulnerable people
  • Elder sexual homicides, etc.

Already 5.3 million Americans have Alzheimer’s disease or other types of dementia, and that number is expected to rise to 7.7 million people by 2030, and 11 to 16 million by 2050. Not all dementias are equal, depending on the stage of the disease. Dementia might incapacitate certain decision-making features, leaving a person with the capacity to handle some aspects of life but not others.

The rising rate of Alzheimer’s and Dementia cases have left nursing homes, doctors, and families alike wondering how to discern someone with dementia’s state of mind. When it comes to sex what duty does a person have to determine their partner’s capacity to provide consent, even if they willingly engage in sex? Should dementia confer an absolute prohibition? Have they been traumatized by non-consensual sex but are reluctant to acknowledge the abuse?

According to a recent National Institute on Aging study of sexual abuse in care facilities,

“Police agencies nationwide declined to arrest 32 individuals even though state authorities had evidence, including positive rape kits, victim disclosure, and eye witnesses, that they had committed sexual assault.”

It is important to increase the awareness and understanding of elder abuse and to better protect elders. Children who encounter any kind of abuse have advocates ranging from the Child Abuse Prevention Center to Advocates for Youth. I believe that it is important for there to be similar groups that advocate for the elderly. In addition, police officials who investigate these crimes need to do a better job understanding the issue of competency and to explore what really took place between the individuals.