What’s entailed in expressing consent to have sex with someone? If the person wanting to have sex with you is your husband, and you don’t object to sex with him, is that enough? If you’re openly affectionate with him, wouldn’t that pretty much clinch it? But what about if you also happen to have dementia?

That was the question raised by the case of Henry Rayhons and Donna Lou Rayhons of Garner, Iowa. The couple had each lost their previous spouses. Each in their 70s, they formed a close bond with each other after meeting in the Catholic church choir in which both sang. They married in December, 2007. However, in 2009 Mrs. Rayhons began to show signs of dementia. She was placed in a nursing home in March, 2014. Henry visited his wife morning and evening, often praying the rosary with her.

Henry Rayhons. Photo by Daniel Acker/Bloomberg

According to Bloomberg News, on May 15, 2014, the nursing home staff met with Mr. Rayhons and two of his wife’s daughters. The staff informed him that a local physician had decided that Donna no longer had the mental capacity to consent to sex. Mr. Rayhons replied that that was “not a problem.”

However, eight days later, Donna’s roommate reportedly heard “sexual sounds” coming from Donna’s part of their room, where Henry had apparently drawn a curtain around himself and his wife. Prosecutors claimed that his semen was found on a quilt and sheet from Donna’s bed. Henry reportedly admitted to an investigator that he and his wife had had sex that day, but denied it while testifying at his trial for felony sexual assault.

What would consent for sex look like in a patient with moderate or severe dementia? An  article about the Rayhons case in the New York Times cites Gayle Doll, director of the Center on Aging at Kansas State University, to the effect that such a person may not be able to assent with words but still be able to give assent by body language or facial expression. This way of thinking about assent would mean that it can’t be assessed by measuring the person’s ability to perform cognitive tasks, but instead must be determined by observing that person’s response to the prospective sexual partner. The nursing home in this case doesn’t seem to have conducted that sort of assessment. Would the conclusion have been different had they considered the affection the couple displayed when Henry visited? Donna reportedly was glad to see him and they held hands on the unit.

The defense attorney asked two physicians testifying for the prosecution whether Donna’s positive response to her husband’s visits showed that she was capable of understanding her relationship with him. Both said no, one of them saying of those with dementia “They do have feelings, but they don’t have good judgment.” So it takes good judgment to have sex? How many of us, young or old, have ever failed to meet that criteria before hopping in the sack?

The trial concluded on April 22 with a not guilty verdict. Perhaps the jurors believed Henry’s denial, or perhaps they they thought Donna was capable of giving consent.  Acquittal must have been quite a relief for Henry and his family, though perhaps not for his daughters-in-law, who reportedly had clashed with him about their mother’s care.

A couple of experts cited in the NYT article discussed the discomfort and disapproval they had seen among nursing home staff on the subject of sexual activity among residents. In all likelihood, the society as a whole shares that disquiet. However, with the number of persons over 65 with Alzheimer’s expected to grow dramatically–from 5.1 million now to 7.1 million in ten years–it’s an issue that will come up with increasing frequency. Perhaps our society will eventually reach a point that we recognize that human affection and intimacy are important for all of us, even those who can no longer express these needs well.