Read more from Slate's Sex Issue.
It's easier to determine if a senior citizen is the victim of outright sexual assault. Even an Alzheimer's patient who has lost the ability to talk can express desire or dismay through sounds, facial expressions, and hand gestures. But caregivers face a dilemma when they find a patient with dementia enjoying a bout of raunchy, goatish sex. Break it up, and they may be depriving a dying man or woman of physical pleasure and companionship. Leave them be, and the nursing home may be exposed to negligence claims from dismayed relatives or a forgotten spouse.
In practice, nursing homes tend to err on the side of prudish caution. After all, most of us aren't expecting our elderly mothers or grandmothers to be having sex in the first place—so we're far more likely to complain if she's getting too much action rather than too little. So, administrators crack down with de facto statutory rape rules that treat elderly patients as if they were teenagers: If they can't be trusted to provide consent, they're automatically treated as the victims of any sexual encounter. The most liberal institutional policies on sexual contact [PDF] call for psychiatrists or social workers to review each situation and decide whether the participants are capable of saying no. Another approach uses a standardized test of mental state, with a minimum score required for consensual sexual activity. As a result, a patient with advanced dementia can summarily lose her right to have any sex whatsoever—even with her own spouse. (In 1996, an Ohio court ruled against a man who sued for the right to spend nights with his mentally incompetent wife. The nursing home had declined his request due to "the complex legal environment in which we exist.")
But rules designed to protect teenagers from sexual exploitation don't make sense when they're applied in a nursing home. For starters, elderly patients have more to gain from sex than their teenage counterparts. A 14-year-old girl kept (or protected) from the arms of an older man can still look forward to a lifetime of fulfilling, consensual relations. An 84-year-old woman who is denied sex has been consigned to lonely chastity for the rest of her days.
Likewise, an Alzheimer's patient has much less to lose from quasi-consensual sex. Statutory rape laws are designed to protect teenagers from a host of problems that aren't relevant to the elderly population. A teenager's coerced or unfortunate dalliance might produce decades of distress as she grows into an adult. But someone with dementia has no dawning awareness after the fact; there's no way for a psychic wound to mangle her developing brain. Nor are unwanted pregnancy and the financial risk it carries at issue. It's not too strong to say that when doctors are too quick to enforce celibacy as a way of protecting their patients from exploitative sex, they replace one form of elder abuse with another.
How can doctors make it easier for their patients to have safe, fulfilling sex in their twilight years? To begin with, they might allow sex between two seemingly willing residents with dementia, in the same way that "age gap" laws allow for consensual sex between age-matched teenagers. Nursing homes might also consider formal exceptions to the consent rules for spouses or long-term partners. Perhaps the safest solution would be to encourage residents to designate a "sexual guardian" in advance of their cognitive decline. That person—whether a spouse, a friend, or a close relative—could serve as the elder-sex cop, or elder-sex partner, for their loved one.
As it stands, nursing-home residents are going to have more sex only when their doctors can stop worrying about legal liability. We shouldn't have to rely on a bunch of sleazy Wall Street investors to give them the opportunity.