A jury in northern Iowa will take up a question that few, if any, have confronted before: When does a person with dementia lose the mental ability to consent to sex?
The answer may not bode well for Henry Rayhons, the 78-year-old retired farmer and state legislator accused of raping his wife, Donna Lou, who suffered from Alzheimer’s disease. He faces as many as 10 years in prison if convicted of a sexual assault that allegedly took place at a nursing home on May 23, 2014, in Garner, Iowa. Rayhons has pleaded not guilty.
As state prosecutors and defense attorney make closing arguments on Monday, what happened inside Room 12 North of the Concord Care Center remains unclear. To convict, jurors must first find that Rayhons committed a sex act and then conclude that Donna had a “mental defect” that precluded her from saying yes or no.
To dementia experts, the question of consent is far from simple. Patients with Alzheimer’s, the most prevalent form of dementia, can be incoherent one moment and lucid the next. An Alzheimer’s sufferer who doesn’t recognize toast at breakfast could make a considered choice between tomato and chicken noodle soups at lunch.
Iowa’s sexual assault law is essentially deaf to these distinctions, says Katherine Pearson, who teaches and writes about elderly law at the Penn State Dickinson School of Law and has followed the Rayhons case. Iowa’s rape law “fails to take into account the reality that a person with Alzheimer’s may herself still have desires, moods, and emotional responses that can affect her choice or rejection of sexual intimacy,” Pearson says.
Many experts on law, dementia, and the elderly have said the Rayhons case—explored in detail as part of a Bloomberg News series—may be the first of its kind in the U.S. It’s unlikely to be the last as the 65-and-over population expands and the number of people with dementia grows.
Rayhons was arrested on Aug. 15, one week after Donna, also 78, died of complications from Alzheimer’s. There’s no evidence that he forced his wife to have sex or that she asked him not to touch her.
In the courtroom on Friday, wearing a suit Donna had picked out for him, Rayhons took the witness stand and repeatedly denied having intercourse with his wife on the night in question. He broke down sobbing as he described how much he loved her. “She was my queen,” he said.
Rayhons is a sturdy, 6-foot-2-inch father of four whose family has farmed in the Garner area for more than a century. He has no criminal record and says he’s never even been issued a speeding ticket. A devout Catholic, he prayed a silent rosary in the witness box as jurors listened to audiotaped evidence.
He was a widower for less than a year, and Donna a widow for six years, when they began to flirt while singing in a church choir in 2007. They married that December. Both their families embraced the union, and they appear to have had a loving courtship and marriage.
Donna was diagnosed with possible early-onset Alzheimer’s disease in 2010. Her condition began to worsen markedly in early 2014, according to court documents and testimony, and Rayhons clashed with two of Donna’s daughters over her care. She was placed in the Concord Care facility in March 2014.
On May 15, the daughters met with Rayhons and nursing home staffers to discuss Donna’s care. They handed him a one-page document on which a local physician had written that Donna no longer had the mental capacity to consent to sex. “That’s not a problem,” Rayhons said on an audiotape of the meeting. The discussion of the topic lasted about one minute and the word “sex” was not uttered.
The alleged assault occurred eight days later. After Rayhons visited Donna in her room that evening, her roommate told nursing home staffers she had heard “sexual” sounds, although she saw nothing and later changed her statement to say she heard only whispering.
Prosecutors say Rayhons later admitted to a state investigator that he had sexual intercourse with his wife that night. On the witness stand, however, an emotional and occasionally flustered Rayhons said he told the investigator things that were untrue because the investigator had upset him. “He had me completely out of my brain after he shouted at me,” Rayhons testified.
There’s no doubt that Donna Lou Rayhons had a cognitive defect. She wandered the Concord Care hallways, forgot how to eat a sandwich, and couldn’t remember her daughters’ names. But there’s also little precise information about her mental state on May 23, 2014. Much of the evidence about that time comes from anecdotal observations made by family, friends, nursing home staff, and two family physicians. She didn’t undergo any in-depth psychological or neurological evaluations.
Donna herself was not consulted about her desire for intimacy with her husband. That decision was made for her, based partly on her failing scores on a standardized test used to gauge short-term memory rather than the ability to make decisions.
John Brady, the Garner physician who determined that Donna lacked the ability to consent to sex, told jurors that her apparent delight in Rayhons’s presence was a “primal response” that didn’t mean she could decide whether to be intimate. A neurologist who first diagnosed Donna with early-onset Alzheimer’s testified that people in her condition could have feelings but not make sound judgments.
Experts who testified for Rayhons disagreed. A geriatrician named Robert Bender told jurors that Alzheimer’s largely spares brain functions that recognize opportunities for joy and comfort and can formulate plans to pursue them. “Human beings are sexual their whole lives,” said Bender, who never met Donna and was paid by Rayhons to testify. “It is a very, very important part of being human. To restrict the desire, the drive, for sexual contact would be a mistake.”
Her disability notwithstanding, Bender said that Donna “was still a full human being.”
Iowa’s sexual assault law doesn’t explicitly define the “mental defect” that prosecutors must prove. In a review of the statute 35 years ago, the Iowa Supreme Court said the law “protects those who are so mentally incompetent or incapacitated as to be unable to understand the nature and consequences of the sex act.”
Prosecutors have suggested that the law requires the jury to view Donna as similar to an 8-year-old whose stated desire for sex would be irrelevant in an assault case. If the jury agrees—or if Judge Gregg Rosenbladt directs the jury to construe the case in this way—a guilty verdict becomes more predictable, law professor Pearson says.
“There’s potential for this case to have a good impact even if it’s a bad result for Mr. Rayhons,” Pearson says. “Other states will look at their statutes and decide if they want a case like this to be a criminal prosecution.” Or it could prompt caregivers, elder-care facilities, families, and dementia sufferers themselves to engage in discussions about what is or isn’t permissible before something uncomfortable occurs.
“Just think what would have happened here if there had been an actual dialogue with family and caregivers and even Mrs. Rayhons to find out her understanding of the situation,” Pearson says. “More time was spent on prosecution than on counseling. It’s just sad.”
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