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Apr 14 2015

Should Husband Be Prosecuted For Sex With Wife Suffering From Dementia?

Donna Lou Rayhons and her husband Henry Rayhons married late in life. Both widowed from their first spouses, they met while singing in the church choir and married in 2007 when they were both 70 years old. By all accounts it was very loving and kind relationship.But then Ms. Rayhons contracted Alzheimer’s Disease and had to be placed in a nursing home.

This week, in an Iowa courtroom, a jury will decide if Mr. Rayhons should be convicted of felony sexual abuse for having sex with his wife eight days after being told by her doctor that she could not consent to having sex. It seems that Ms. Rayhon’s daughter from her first marriage was suspicious that the couple was continuing to be intimate even though her mother could no longer remember her daughter’s name and scored zero on memory and orientation tests. The daughter wrote the following question on the bottom of her mother’s care plan: Given Donna’s cognitive state, do you feel she is able to give consent for any sexual activity?” The nursing home doctor wrote “No” and Mr. Rayhons was given a copy of the care plan with this Q and A written on it.

But was that the fair way to phrase that question? And is there a concrete answer? Did the doctor even ask Ms. Rayhons if she would want to remain intimate with her husband? In the NY Times article about this case today, reporter Pam Bellock cites that “Dementia’s symptoms fluctuate. Patients may be relatively lucid in the morning and significantly impaired in the afternoon.” Anyone who has had a family member go through this illness knows the truth of this statement; every day is a new day. Ms. Bellock also notes that “sexual desire may survive long after names and faces are forgotten,” citing several Alzheimer’s experts who say that physical intimacy can calm agitation, ease loneliness and even promote physical well-being in patients.

The article goes on at length to discuss the ethical dilemma facing nursing homes and recommends steps they can take to better assess their patients’ desire and willingness to have physical intimacy. I’ll leave those issues to the medical bloggers. My question is should the State be prosecuting this man?

The scale represents balancing justice with fairness

The scale represents balancing justice with fairness

78 year old Henry Rayhons has led a law-abiding, productive life. A corn and soybean farmer, he was also a popular Republican State senator, having been re-elected for nine terms. He was by all accounts, a loving, devoted husband to Donna (who passed away last year). He visited her every morning and every evening of every day. One night in May (about eight days after the care plan was provided to him) he went back to Donna’s room with her which she shared with a roommate. He pulled the curtain around her her bed. He was later seen on a security camera throwing out Donna’s panties in a hallway garbage can.
A roommate complained the following morning that she had heard “sex noises” coming from behind the Ms. Rayhon’s curtain. There was no evidence of resistance, physical abuse or trauma of any kind.

When he was interviewed by a State investigator after Ms. Rayhon’s daughter wanted charges pressed, Mr. Rayhon stated that his wife still enjoyed and occasionally asked for sex. When he was confronted with the hallway video, he admitted that he had sex with her that night. He was arrested and charged with Sexual Abuse in the Third Degree, a class C felony. That charge requires proof that The other person is suffering from a mental defect or incapacity which precludes giving consent. Given that Mr. Rayhon stated that his wife was capable on that night of consent, and given that I am certain that this prominent well-off man can retain several experts to say that Ms. Rayhon may very have been lucid and capable of consent that night, is this case prosecution-worthy?

I think the State Attorney’s Office should have taken a pass on this and recognized that this incident is not the kind of crime that the statute was intended to cover. It seems to me that not only is the case nearly un-provable beyond a reasonable doubt, Mr. Rayhons should have at best been given a warning that the doctor’s scratched response on the life care plan was enough to charge him criminally even if his wife gave what he considered consent. This prosecution seems driven by a need for notoriety from the State Attorney’s office. Let’s hope a jury sees this for what it is – a poor exercise of prosecutorial discretion.

Read Ms. Bellock’s intringuing article here: http://www.nytimes.com/2015/04/14/health/sex-dementia-and-a-husband-henry-rayhons-on-trial-at-age-78.html?_r=0

UPDATE: Since the publishing of this article, Mr. Rayhon has been found not guilty of all charges after a jury trial
follow Oscar Michelen on Twitter @oscarmichelen.com

3 comments

  1. April Brown

    Let’s assume the State is protecting Ms. Rayhon’s right to control her body. Let’s assume she had and has a loving relationship with her husband. Let’s even assume that in the past their relationship was hot and cold from time to time. Any family member who has dealt with dementia knows that person can believe he or she is 30 years old and hot and able to perform sex and then discovers mid act, they are not. What if during sex the person with dementia suddenly forgets who is laying next to them and cries rape? Unless the State is going to put a video camera in the suite with 24/7 surveillance that includes watching the sex act and the reaction of both parties to the sex act, then their can be no real evidence of foul play.

    This poor man and his family appear to have gained no protection and the State is causing more suffering.

    Not sure how I feel about the daughter. I would like to know her true intention.

  2. Julia Romero

    Thank you, April Brown–I too have wondered about the daughter’s true intention re charges against her mother’s husband, and why did she being keeping a log of her mother’s ‘decline’ and the desire to keep Mr. Rayhon, who appears to have been a loving, devoted husband, away from his wife. Why smear the memory of the mother and ruin the life of the bereaved husband? I find it interesting that the daughter(s) were attempting to have Mr. Rayhon pay for the nursing care homes where the daughters had their mother ensconced. Because one or two of Mrs. Rayhon’s daughters placed her in the nursing care homes, it seems to me that they are the ones who are responsible for those bills. And, as you noted, April, where is the actual evidence to the alleged crime being hurled against Mr. Rayhon?

    1. Oscar Michelen

      Lots of problems with this case, many of which you point out. The main one is why do this to this man? What is to gain by it? Thanks for the post!

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