Recently at a nursing home in southern Alabama, an elderly male nursing home resident was arrested for sexual assault of another resident.
Our Birmingham sex crimes defense attorneys understand the man has been charged with sexual abuse in the first degree. Per Code of Alabama 13A-6-66, sexual abuse in the first degree is when a person subjects someone to engage in sexual contact by forcible compulsion or when the other person is physically helpless or mentally incapacitated. It’s a Class C felony, punishable by between 2 and 20 years in prison.
The initial media report makes no mention of whether the nursing home resident arrested was afflicted with Alzheimer’s disease or some other form of dementia. However, given his age, his alleged aggression and the fact that he required full-time care, it’s not outside the realm of possibilities.
People who suffer from dementia have a diminished capacity to understand the rightness or wrongness of their actions. Generally within the criminal justice system, this capacity for understanding is required to convict someone of a crime.
Aggression with Alzheimer’s disease tends to flare up in the later stages of the disease, with a once gentle person becoming easily angered, agitated and abusive. Many times, this occurs for no apparent reason.
There is little research regarding the prevalence of sexual abuse inflicted by those with dementia. Most research focuses on abuse of these patients, and the conjecture is that it is quite high. However, we do know that those who suffer from dementia may also have reduced inhibitions.
There was also recently a series by Bloomberg News that discussed how, as baby boomers age, we can expect to confront an increasing number of nursing home romances, some of those involving one or both patients suffering from dementia. From circumstances that have already arisen, this brings up a host of ethical and legal questions.
First, there is the notion that elderly people, even those suffering from dementia, do not lose their desire for romantic contact. This is often uncomfortable for staffers and adult children alike – particularly if one of those parties is still married. In fact, there have been situations where these folks believe that the other person living in the nursing home is his or her wife.
There is nothing illegal about consensual sexual contact between adults, regardless of whether they require full-time nursing care. The issue is whether, as dementia patients, both parties can consent to such relationships. What if one patient is further along in the disease than the other? What if both parties say they consent and appear to be happy?
In these cases, consent becomes somewhat of a subjective issue. However, because adult children are uncomfortable with it and nursing home staffers are doing all they can to reduce their own liability, such relationships may be reported as sexual abuse or rape.
That was the case with a 78-year-old male nursing home resident in Iowa who on Christmas Day in 2009 was spotted by a staffer engaging in sexual intercourse with an 87-year-old woman, a fellow patient. She was married, he was not. Both had dementia. The two frequently referred to each other as husband and wife. They were frequently seen holding hands, sitting close and spending long hours talking.
Nursing home staffers had intervened in the past to separate them, but it created anxiety for both.
However, after they were seen engaged in sexual contact, the nursing home took prompt action and removed the male patient. The nursing home was eventually sued and the director fired for failing to halt the relationship.
Legal action was taken because, as officials would later explain, her dementia was much further along than hers.
But again, it is a fine line. A strong case can be made for why criminal charges may not be appropriate for an individual suffering from dementia, no matter how early a stage it is.