Age Of Consent: Should A Number Be Placed On the Upper Limit To Protect Elderly Patients With Dementia?

Elderly couple
Do the elderly with dementia, particularly women living in nursing homes, need protection from rape? Would a new age of consent at the upper end provide that protection? Ian MacKenzie

In an article published yesterday on Bloomberg.com, Bryan Gruley sketches an incident that occurred at the Windmill Manor nursing home in Coralville, Iowa. On the evening of Christmas in 2009, a nurse was summoned by other staff members to the room of a 78-year-old man. She found him there, pulling up his pants, having just completed intercourse with an 87-year-old woman. "The man, a former college professor, was divorced. The woman, a retired secretary, was married. Both had dementia," wrote Gruyley. When staff members attempted to remove the woman from the room, she is reported to have screamed, bit, and kicked them. Afterwards, a nurse who examined the woman discovered bruises on her lower shins and a 'reddened vaginal area.'

Gruley asks whether nursing home residents with dementia have the mental capacity to consent to sex. Considering that approximately one in five of all deaths in the U.S. occurs within a nursing home, this question of mental capacity and sexual self-determination strikes home for a great many people.

As significant as this question is within nursing facilities, it actually could be extended to the wider community: Are women who suffer from dementia able to protect themselves against rape?

'Walking' Dementia

Based on the Health and Retirement Study (HRS) data, preliminary research finds that some 10 percent of people age 70 and older have moderate to severe cognitive impairment. As people age, prevalence rises sharply. Researchers estimate that six percent of people over 70 who live within the general community have moderate to severe impairment, while some 50 percent among those who live in institutions are similarly impaired. Like 'walking pneumonia,' then, dementia may be subtle and not so obvious to those affected and observers both.

Within institutions, though, it seems dementia should be obvious to those who care for patients, yet that is not always the case. In 2011, according to the Centers for Disease Control and Protection, there were roughly 1.7 million nursing home beds (82 percent occupancy) in 16,000 certified nursing homes. A wide spectrum of possibility and circumstance is hidden within those numbers, though. In some cases, the facilities have less than 50 beds and high proportion of qualified staff to patients; in other facilities, a small staff of quick-turnover employees care for hundreds of patients. The stages of dementia could easily pass unnoticed in many institutions.

To attain a better understanding of this, consider this report presenting information on nursing home residents receiving end-of-life care. The authors source their data from the resident component of the 2004 National Nursing Home Survey (NNHS), a survey of all current residents in nursing homes with three or more beds in the U.S. (exclusive of those without certification or state license). The final sample for this particular report consisted of 13,507 current residents receiving end of life care; the results are 'population estimates' based on this sample, meaning the responses of each actual participant are given greater or lesser weight depending on the number of actual residents they 'represent.'

Although the information concerns only those receiving end-of-life care, the numbers are still suggestive of the level of mental and physical capability that can be found within institutions for the elderly. Among this particular group of residents, the majority were female (76 percent of the total) and widowed (60.3 percent). Of those who, prior to admission, lived at home, roughly half had been living alone. The decision-making ability of 22.7 percent was judged to be independent (or 'modified independent,' defined as 'a resident who has some difficulty in new situations only'), while fully 77 percent of those receiving end of life care were considered moderately or severely impaired. Activities of daily living (ADL) — a standard term used to quantify self-care ability includes transferring (moving from one location, such as bed, to another location, such as a bathroom), dressing, eating, toileting, and bathing — flesh out this picture. A full 74.8 percent required assistance in all five areas of ADL while 25.2 percent required assistance on up to four.

Given these statistics, among those living in an institution and receiving end-of-life care, only a minute percentage, at best, would be deemed to be in a position for consensual sex. Among those who may be just one or two steps before this final stage, how much more physically and mentally capable might they be in terms of daily living as well as sexual consent?

Perhaps an understanding of the general population might provide more insight.

The Source

The Kinsey Institute at Indiana University, which has researched and reported on sexual behavior for more than 60 years, has aggregated results from its "Sexual Behaviors, Relationships, and Perceived Health Among Adult Men in the United States: Results from a National Probability Sample" and posted them on their website.

Regarding the frequency of vaginal intercourse during the past year, the Institute reports that among single men over the age of 70, 13.2 percent report vaginal intercourse a few times per month to weekly, while 5.3 percent report similar sexual activity a few times per year to monthly. Among partnered men, 63.2 percent report vaginal intercourse a few times per month to weekly, while 10.5 percent report similar sexual activity a few times per year to monthly. Among married men, 0.8 percent report four or more times per week, 5.3 percent report similar sexual activity two to three times per week, 15.0 percent report the same a few times per month to weekly, and 24.2 percent report the same a few times per year to monthly.

Fascinated, yet?

Among single women over the age of 70, none report vaginal intercourse during the past year. Among partnered women, a whopping 23.1 percent report vaginal intercourse four or more times per week, 7.7 percent report the same two to three times per week, 23.1 percent have intercourse a few times per month to weekly, while 15.4 percent report intercourse a few times per year to monthly. Among married women, 1.4 percent have intercourse four or more times per week, 1.4 percent report the same two to three times per week, 18.3 percent have intercourse a few times per month to weekly, and 25.4 percent report similar activity a few times per year to monthly.

Other than the fact that it is striking that unmarried couples seem to be disproportionately enjoying sex in their twilight years, it is clear that large numbers of men and women over the age of 70 maintain a sex life that includes vaginal intercourse.

Presumably, though, the Kinsey Institute did not derive their data from those who are resident in nursing homes. That does not mean that their survey population failed to include people suffering from dementia; considering the sheer prevalence — currently 2.4 to 5.1 million people in the U.S. are reported to have Alzheimer's — it is difficult to imagine that the Kinsey survey could not have included responses from some who did not know they were in the earliest stages of the disease. That being the case, no matter the age and no matter the mental capacity, desire clearly exists for some well into old age. And because of this, putting an 'upward' age on consent without considering the individual would never be morally right, and would in fact rob the elderly of their dignity.

Statistics, surveys, dementia, physical capacity — isn't an underlying story, here, the simple need for intimacy?

Late Romance

In 2007, the Associated Press reported how Scott O'Connor, the son of Sandra Day O'Connor, said in a broadcast on KPNX that his father, who had been diagnosed with a neurological disease, had developed a relationship with an Alzheimer's patient while both were residents at the Huger Mercy Living Center. Although the Supreme Court Justice never commented on her husband's activity, her son reported that she felt 'glad' to witness this development.

A manager of Huger Mercy in that period, Lisa O'Toole noted three romances among the assisted-living facility's 48 residents. AP reported that O'Toole described the relationships as "almost childlike, with the couples holding hands, hugging, or simply having dinner together." It seems this image of the elderly is the one preferred by most.

 

Source: Bercovitz A, Decker FH, Jones A, Remsburg RE. End-of-Life Care in Nursing Homes: 2004 National Nursing Home Survey. Centers for Disease Control and Prevention Publications. 2010.

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