Iowa Rape Case Raises Question of Whether a Wife with Dementia Can Consent to Sex

In a case that ventures into the little explored legal intersection of sex and dementia, an Iowa man is awaiting trial on charges that he raped his wife while visiting her in the nursing home where she lived. 

Prosecutors charge that Henry Rayhons, 78, had intercourse with his wife, Donna, when she lacked the capacity to consent due to Alzheimer’s disease.  Mr. Rayhons, a farmer and a nine-term Republican state legislator, denies that he had sex with his wife on the evening in question and has pleaded not guilty.  Mrs. Rayhons died of complications related to Alzheimer’s on August 8,ree and a half mo 2014, thnths after the alleged rape occurred and just short of her 79th birthday.

The Rayhons were married in 2007, and the marriage was the second for both of them after losing their respective first spouses, according to an in-depth article on the case by Bloomberg News.  There is little dispute that the Rayhons were very much in love and devoted to one another.  Mr. Rayhons’ four children from his first marriage are supporting him, while two of Mrs. Rayhons’ three daughters from her first marriage assisted with the police investigation.

In May, before the alleged act occurred, a family physician met with Mrs. Rayhons’ daughters and created a plan placing restrictions on Mrs. Rayhons’ activities in an effort to limit her agitation.  As part of the plan, the doctor said that Mrs. Rayhons was not mentally able to consent to any sexual activity.  The plan and the restriction on sexual activity were based on Mrs. Rayhons receiving consistently low scores on the Brief Interview for Mental Status (BIMS). 

To win their case, state prosecutors must first convince a jury that a sex act indeed occurred, and then that Mrs. Rayhons had a “mental defect” making her unable to understand the nature and consequences of the sex act. Whether Mr. and Mrs. Rayhons had relations on the evening in question rests in large part on an alleged confession by Mr. Rayhons and on the initial report of an 85-year-old roommate, who has since revised her account of what she heard.

Last Great Frontier 

Katherine C. Pearson, who teaches and writes about elder law at the Penn State Dickinson School of Law and much of whose research focuses on issues of both capacity and protection, is quoted in the Bloomberg News article.  Pearson said there that the Rayhons case enters territory that is “maybe the last great frontier of questions about capacity and dementia.”

“Any partner in a marriage has the right to say no,” Pearson said. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”

Two other experts quoted in the article question the grounds for the prosecution of Mr. Rayhons.  Susan Wehry, a geriatric psychiatrist and commissioner of the Vermont state department that investigates sexual and other abuse in nursing homes, said that the BIMS is a poor gauge of a dementia sufferer’s ability to make sexual and other decisions. “The BIMS in this case tells me nothing except that she has dementia,” Wehry said. “You can have virtually no short-term memory and still consent to a lot of things.”

“This was not a rape,” declared Daniel Reingold, president and chief executive of the Hebrew Home in Riverdale, New York, a nursing facility that encourages consensual sex among its residents, even those with dementia.

“It sounds like they had a really beautiful relationship,” Reingold said after reviewing the Rayhons case at the request of Bloomberg News. “And the law is depriving a couple of having a marital relationship. It is so big-brother-like, so intrusive, so second-guessing of what a person is experiencing in a dementia state.”

Mr. Rayhons’ trial is scheduled to begin January 28.  According to Bloomberg News, he and Mrs. Rayhons’ daughters are now disagreeing over who should pay the nursing home bills.

For the Bloomberg News article on the case, “Can A Wife With Dementia Say Yes to Sex?” click here.