They might be unable to balance a checkbook while they’re perfectly capable of deciding whether they desire a partner’s affections.
“Any partner in a marriage has the right to say no,” said Katherine C. Pearson, who teaches and writes about elder law at the Penn State Dickinson School of Law and reviewed the Rayhons case at the request of Bloomberg News. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”
Author Eugene Volokh, who reported on this case in the Washington Post, highlights the complicated legal issue:
The question of how to deal with sex by those who aren’t mentally competent is quite complex; it also arises, of course, with regard to those who are mentally disabled all their lives.
Sex with the mentally retarded is generally treated as statutory rape — just as children below some age are seen as legally incapable of giving meaningful consent to sex (even when they are in fact enthusiastic about engaging in the act), so are the mentally retarded.
Sure, the mentally retarded are vulnerable to sexual exploitation. But if statutory rape laws were fully enforced, then the mentally retarded would be vulnerable to a lifetime with no sexual relationships, even loving, nonexploitive relationships.
So how do we negotiate this difficult issue when a loved one lives in our home, or in a group home? Should the state be responsible for determining when sexual contact is appropriate? If a parent gives consent, what happens if someone else challenges that decision? How does guardianship play into this issue?
As this case plays out, we'll be watching since one legal case can set a precedent to be followed in other jurisdictions.