In Defense of the Elderly “Sex Panel”
Note to conservatives: No one is telling your grandmother that she deserves to die, but some are beginning to talk about whether or not she can have sex. That's a good thing.
Marie-Therese Connolly wrote a fascinating article in the Washington Post yesterday about the problem of determining sexual consent among dementia patients. Connolly tells the story of a 96-year-old woman who accused her longtime gardener of raping her. The woman, who suffered from dementia, regularly wrote notes to herself as reminders of what's happening in her life. In one note, she reminded herself that she had had sex:
She posted scores of notes throughout the house to remember other details of life. "Cut toenails" and "take medication" read notes in her bathroom. And in the kitchen: "Cook the food [daughter-in-law] brought over."
But the notes that detectives later found in her home contained other, more complex reminders: Thur jan 8 2:40 pm sitting on side of bed. Thinking of [the gardener] and how I love him and it is returned. Friend love.
And: think it is Tues, Jan 12 9:15 PM can't think what has happened has happened. [The gardener] is unbelievable Is all a dream so much sex! sex! sex! Wonder what will happen next. Think he comes on Tuesdays. Help! . . .
By the time the woman began speaking with investigators, her memory of the event had drastically changed. And it kept changing:
On Jan. 14, the woman told her daughter-in-law that the gardener had "taken liberties" with her the previous day; on the evening of Jan. 15, she said he had raped her. On Jan. 16, she told authorities that he had thrown her on the floor of her house and raped her and that she had fought for her life. She forgot who the detective was three times during a 15-minute interview.
Another note reveals how the woman's perception of the incident changed as the hours passed:
Wed 1/14 it's 11:30 — I called and it is Wed. am upset about [the gardener]. I want the regime to go back the way it was. Don't know should I call him or not think about it and call some time today. 2:15 sitting by phone I am so full of remorse I couldn't sleep. I want things to go back to it the was every was in the beginning. You just came in for a glass of wine after cleaning up the yard mowing etc. Things got way out of hand & I feel terrible.
Page Ulrey, the "elder-abuse prosecutor" assigned to the case, was not tasked with determining whether the woman had verbally consented to sex. That much was fairly easy to determine: an investigation of the incident showed no sign of a struggle, and the gardener, who submitted to a polygraph test, told investigators that "the woman had been telling him for weeks that she was attracted to him and desired to be with a man."
What Ulrey did have to determine was whether the woman could legally consent to sex, ever. When asked about the woman's mental state, the gardener said "he considered her a close friend and a healthy person with short-term memory problems but that 'a lot of times she remembers things she thinks she'll forget.'" In this case, the woman's short-term memory problems turned an initially positive encounter into a horrific lasting memory. But does that mean that she should be barred from having sex with anyone, under any circumstances? And that any man who slept with her would be subject to prosecution?
In the end, Ulrey decided not to prosecute the case because pursuing it would effectively rob the woman of her right to have sex: "we realized that by prosecuting this case, we would in effect have to take the position that the woman was incapable of providing consent."
It's telling that even in the initial, positive note she wrote about her sexual experience, the 96-year-old woman cries out for "Help!" The sexual consent challenges faced by the elderly are important—and largely ignored. Unlike typical questions of consent—those involving intoxicated people, or underage teenagers—a patient with dementia who is deemed a victim will remain a victim until death. And because our culture hates to think about old people having sex, it's important to recognize that elderly people can desire and pursue sex. As a result, as Connolly notes, the relative silence around elder sexuality extends to sexual assaults against the community. She writes: "Previously, most prosecutors wouldn't go near cases involving witnesses or victims with dementia. According to a recent National Institute on Aging-funded study of sexual abuse in care facilities, police agencies nationwide declined to arrest 32 individuals even though state authorities had evidence, including positive rape kits, victim disclosures and eye witnesses, that they had committed sexual assault."
Since Grandma is not supposed to be a sexual person, no one wants to believe that she can consent to sex, and no one wants to believe that anyone would sexually assault her. Discussing the bedroom habits of your elderly relatives may be uncomfortable, but it's important—if they need help cooking dinner, cleaning the house, or pulling weeds, chances are they could use some help navigating their end-of-sex-lives, too. Recognizing that the elderly lead sexually active lives won't resolve the problems that surround consent as the mind recedes into old age. But it might help the elderly, their caregivers, and their potential sex partners openly discuss issues of consent well before the memories of the act begin to fade.