© Daniel Acker/Bloomberg, via Getty Images Henry Rayhons at the grave of his wife, Donna Lou Rayhons, an Alzheimer’s patient who died last year. There is no question that Donna Lou Rayhons had severe Alzheimer’s.
In the days before being placed in a nursing home in Garner, Iowa, last year, Mrs. Rayhons, 78, could not recall her daughters’ names or how to eat a hamburger. One day, she tried to wash her hands in the toilet of a restaurant bathroom.
But another question has become the crux of an extraordinary criminal case unfolding this week in an Iowa courtroom: Was Mrs. Rayhons able to consent to sex with her husband?
Henry Rayhons, 78, has been charged with third-degree felony sexual abuse, accused of having sex with his wife in a nursing home on May 23, 2014, eight days after staff members there told him they believed she was mentally unable to agree to sex.
It is rare, possibly unprecedented, for such circumstances to prompt criminal charges. Mr. Rayhons, a nine-term Republican state legislator, decided not to seek another term after his arrest.
© Daniel Acker/Bloomberg, via Getty Images Mr. Rayhons is accused of sexually abusing his wife, shown in a photograph with him. There is no allegation that Mrs. Rayhons resisted or showed signs of abuse. And it is widely agreed that the Rayhonses had a loving, affectionate relationship, having married in 2007 after each had been widowed. They met while singing in a church choir.
The case pivots on longstanding medical and ethical concerns that will become only more pressing as the population ages and rates of dementia rise. How can anyone determine whether a person with dementia can say yes to sex? Who has the right to decide?
“It really is a huge issue, and somewhere down the line we’re going to have to confront it,” said Derek Beeston, a social work professor at Staffordshire University in England who has studied sex and dementia.
Mrs. Rayhons, who died in August, was placed in the Concord Care Center in March 2014, soon after one of her daughters, Linda Dunshee, was called to pick her up at the Iowa State Capitol, where Mr. Rayhons was working. Ms. Dunshee found her mother wearing lingerie and unzipped pants under her coat.
Details about the case come from interviews, court records and news media reports. At the care center, Mr. Rayhons, a corn and soybean farmer, visited his wife morning and evening, sometimes praying the rosary by her bed. But documents and interviews suggest he opposed some staff recommendations, including limiting outside trips, like attending a friend’s funeral at an unfamiliar church.
Michelle Dornbier, a social worker at the center, and Dr. John Boedeker, Mrs. Rayhons’s family doctor, testified on Friday about her scores on a test to assess memory and orientation. In May 2014, she scored zero, unable to recall the words “sock,” “bed” and “blue.”
But Ms. Dornbier acknowledged that Mrs. Rayhons “was always pleased to see Henry.” And Dr. Boedeker acknowledged that “intimacy is beneficial for dementia patients.”
Ms. Dornbier testified that the Concord Care Center allows consensual sex between residents. But she said that on May 15, 2014, family members including Mr. Rayhons were given a “care plan” establishing simple routines for Mrs. Rayhons, including limiting outings with Mr. Rayhons, mostly to church on Sunday.
Ms. Dornbier, prompted by what she called concerns from Mrs. Rayhons’s daughter Suzan Brunes, that Mr. Rayhons was engaging in inappropriate sexual contact, wrote at the bottom of the plan: “Given Donna’s cognitive state, do you feel she is able to give consent for any sexual activity?”
The center’s doctor, Dr. John Brady, wrote: “No.” Mr. Rayhons was told the recommendation against having sex and indicated it would not be a problem, according to Ms. Dunshee.
On May 23, Mrs. Rayhons was moved from a private room to a double. That evening, her roommate reported that Mr. Rayhons drew the curtain around his wife’s bed and that sexual noises were heard. Later a security camera recorded Mr. Rayhons dropping his wife’s underwear into a hallway laundry bag after leaving her room.
Soon after, Ms. Brunes successfully petitioned for guardianship of her mother. The petition did not mention sexual activity, but said that Mr. Rayhons disregarded staff members’ recommendations, including that he not visit his wife’s room because of “conflicts with her roommate.”
In an interview with a state investigator, Mr. Rayhons said that his wife still enjoyed and occasionally asked for sex, but he did not remember having sex in the shared room that night. The investigator implied, apparently erroneously, to Mr. Rayhons that cameras had recorded sexual activity, which seemed to persuade him to acknowledge having had relations.
Mrs. Rayhons was moved to another facility run by the same company, which has a special dementia unit. Her daughter limited Mr. Rayhons’s visits. He was arrested soon after she died.
The case is being tried by the Iowa attorney general’s office because of Mr. Rayhons’s prominence in the county. The attorney general’s office, the Concord Care Home, Mrs. Rayhons’s daughters and their lawyer declined to comment while the case is pending.
Sex is one of the most ambiguous areas in the scientific understanding of Alzheimer’s. While there are established methods of measuring memory, reasoning and the ability to dress, bathe and balance checkbooks, no widely used method exists for assessing the ability to consent to intimate relations.
One obstacle: Dementia’s symptoms fluctuate. Patients may be relatively lucid in the morning and significantly impaired in the afternoon.
“What may be appropriate on one day may not be appropriate the next week, or at a different point that same day,” said Ann Christine Frankowski, associate director of the Center for Aging Studies at the University of Maryland, Baltimore County.
Yet desire may survive long after names and faces are forgotten. Physical intimacy can benefit dementia patients, experts say, calming agitation, easing loneliness and possibly aiding physical health.
“Touch is one of the last pleasures we lose,” said Daniel Reingold, chief executive of the Hebrew Home at Riverdale, in the Bronx, which pioneered a “sexual rights policy” for residents in 1995. “So much of aging and so much of being in a long-term care facility is about loss, loss of independence, loss of friends, loss of ability to use your body. Why would we want to diminish that?”
Several experts described intimacy as an almost primal instinct, like eating. “Wanting to have sex is a bit like being hungry or being thirsty,” Dr. Beeston said.
Unless people are in a “vegetative” state, said Patricia M. Speck, a forensic nurse at the University of Alabama at Birmingham School of Nursing, “there’s a lot of things they might not be able to do like money and time and recognition of children, but they have the capacity for self-determination and intimate relationships.”
Gayle Doll, director of the Center on Aging at Kansas State University, said a person with dementia might not assent with words, but with body language or facial expression.
“In a nursing home, it doesn’t happen like ‘wham bam thank you ma’am,’ ” she said. “The staff, they know the cues, they know what’s happening in the person’s relationship.”
Dr. Doll trains facility workers in practices like knocking before entering residents’ rooms. One home even put mattresses on the floor to provide a safe place for residents who might otherwise fall out of bed.
Aging baby boomers “are going to want to have sex, and they don’t want to play bingo,” Dr. Frankowski said. Yet many nursing homes have no sexual intimacy policy.
“Most of them are embarrassed by sex,” Dr. Speck said. “Older persons are not considered to be sexual.”
An exception is the Hebrew Home, where staff members are asked to assess consent with nonverbal cues, to note a resident’s mood after sex, and to pose questions like: “Do you enjoy sexual contact?,” “Do you know what it means to have sex?,” and “What would you do if you wanted it to stop?”
“I’ve definitely had family members who have gotten very aggressive opposing our position in encouraging intimacy,” Mr. Reingold said. But staff members will tell family members, “Look, Dad is happy. Why would you want to deprive him of this?”
In other facilities, though, Dr. Frankowski said: “I find staff members saying ‘It’s wrong. Old people don’t do this, they had spouses in the past, they have family member that would be concerned.’ ”
“Sometimes they will say to the resident, ‘Do you really want your daughter to know about this?’ And the staff members do really and truly believe they are doing the right thing.”
Dementia can cause some people to become sexually disinhibited, so facilities like Hebrew Home monitor patients to prevent situations that threaten or make other patients uncomfortable, such as patients masturbating in public rooms.
Experts say adult children whose parents are in second or third marriages may have more difficulty condoning sexual activity with the newer spouse, something that may have played a role in Iowa, where Mrs. Rayhons’s daughters and husband disagreed about her care.
During opening arguments last Thursday, the prosecutor, Tyler Buller, said, “On May 23 of last year, Donna Rayhons couldn’t make her own decisions.” He also said seminal fluid corresponding to Mr. Rayhons’s DNA was found on sheets, a quilt and Mrs. Rayhons’s panties.
The defense lawyer, Joel Yunek, said a rape kit found no semen in Mrs. Rayhons’s vagina or signs of tearing. He said Mr. Rayhons had had sex with his wife at the nursing home, but not on May 23.
On Monday, Mr. Yunek asked Dr. Brady if “Donna is happy to see Henry — hugs, smiles, they hold hands, they talk — would that indicate that she is in fact capable at that point of understanding the affection with Henry?” Dr. Brady said no, calling that a “primal response” not indicative of the ability to make informed decisions.
Dr. Alireza Yarahmadi, a neurologist testifying for the prosecution, also disagreed with Mr. Yunek’s contention, saying, “They do have feelings, but they don’t have good judgment.”
Mr. Rayhons may testify this week. His lawyer and his son, Dale, declined to comment, but soon after the arrest, his family issued a statement saying in part: “Accusing a spouse of a crime for continuing a relationship with his spouse in a nursing home seems to us to be incredibly illogical and unnatural, as well as incredibly hurtful.”
