The case of a former U.S. lawmaker accused of raping his wife in a nursing home is raising questions in Canada about the issue of sexual consent among people living with dementia.
Henry Rayhons is on trial for raping his wife, a dementia patient, after he allegedly had sex with her in her nursing home days after medical staff determined she was no longer mentally capable of legally consenting.
She died last August at the age of 78, and Rayhons was charged with sexual assault shortly after her death. If convicted, he faces up to 10 years in prison.
After the charges were laid, his family released a statement calling them both "illogical and unnatural."
The case, for which there is little legal precedent, is shining a spotlight on the challenging process of navigating sexual relationships throughout the aging process.
In Canada, patients can't pre-consent to sexual activity, meaning they must be able to consent at the time of the sexual contact and during an act of sexual intimacy.
Mary Schulz, director of information, support services and education at the Alzheimer's Society of Canada, said challenges arise when a patient's disease begins to progress, and their judgment starts to become impaired.
"It's really an art and science to really be able to assess whether a person with dementia is competent right now to make that decision," she told CTV's Canada AM, noting that a person's competency can also change from day to day.
The issue is further complicated once a patient is moved into a long-term care facility, and falls under the care of nursing home staff.
"People who are working in long-term care homes have a very difficult job because, primarily of course, they're there to make sure people are getting the care they need as their disease progresses," she said.
"But people with dementia are still whole people, and they live in a nursing home as their home. And in their home they should be able to express their needs as they see fit."
Schulz said factors to consider when the issue arises include the person's past expressed wishes, personal history and past relationships. But it's also important to remember that a person with dementia may not recognize a romantic partner anymore.
"The reality is, a person with dementia may feel that they're having sex with a stranger, even if they're having an intimate interaction with their own spouse," she said.
Ultimately families and medical staff must take steps to prevent patient abuse, she said. This means keeping patients, who may find themselves unable to protest, out of any situations they don’t want to be in.
"The burden then is on the rest of us to assess: Are they comfortable? Do they seem content? Are they happy? Do they seem in any way distressed?" Schulz said. "That may be through non-verbal (communication), or through their behaviour."
According to the Alzheimer Society of Canada, there are approximately 750,000 dementia patients in Canada. That number is expected to grow to about 1.4 million people by 2031.