Read more from Slate's Sex Issue.
When 15 elderly residents at a rundown and understaffed nursing home in Tampa, Fla., died over a three-year span that recently ended, their families filed suit in state court. According to Charles Duhigg's damning report in last Sunday's New York Times, these claims of negligence don't have much of a chance. Throughout the industry, financial backers have begun to hide their profits behind elaborate corporate façades, making litigation against nursing homes almost impossible. Not surprisingly, the quality of care is already in decline.
But there is one way in which these venal, cost-cutting schemes might actually improve conditions in the nursing home. As lawsuits become harder to win, families will have less of a say in how their relatives are treated—and that could give administrators the freedom to reverse overcautious policies on intimate contact between residents. If that happens, elderly patients could reap the rewards of more sex.
Old people have plenty of intercourse when they're not in an institutional setting. A survey published last month in the New England Journal of Medicine found that a quarter of those between the ages of 75 and 85 were having sex, and many were doing it at least once every couple of weeks. A third of these sexually active respondents said they had either given or received oral sex in the past year.
There's no reason to think that nursing-home residents would be any less frisky, if left to their own devices. After all, we're talking about a mixed-sex population living in close quarters with almost endless amounts of free time. Already, staffers routinely field patient requests for personal lubricants, pornographic magazines, larger-size beds, and prescriptions for Viagra. And that's with the 1.6 million elderly residents who came of age before the sexual revolution. Within a few decades, nursing homes will be replete with the desires and expectations of almost 7 million liberated baby boomers.
For now, though, never mind what they want: We seem content to let our elders lie in celibate repose as they wait for Oscar, the death-sniffing cat. In most nursing homes, residents are relegated to narrow mattresses with very little privacy. Nurses enter rooms without knocking, and express disgust at masturbation or coupling, and in some cases, residents are even deprived of conjugal visits from their long-term partners. (This 2004 case study [PDF] from Clinical Geriatrics describes a 77-year-old resident who is instructed by his doctor to "take cold showers" when he complains of sexual issues.) Overseas, elderly patients seem to enjoy a bit more open-mindedness; at one home in Denmark, you can even call out for hookers and X-rated movies. But most nursing-home residents in the United States suffer under a regime of tyrannical chastity.
Why are nursing-home administrators so queasy about sexual expression? They're afraid of getting sued. An estimated 50 percent of elderly residents suffer from some degree of Alzheimer's disease or dementia, which, depending on its severity, can make them confused, forgetful, or unaware of their own behavior. Even in the best cases, many of these patients may not be able to provide clear consent to a sexual advance.
At the same time, certain kinds of cognitive impairment can actually enhance a patient's sex drive. Almost a quarter of dementia sufferers lose interest in sex, but about 14 percent experience a heightened libido—and up to 8 percent become unable to control their sexual behavior. This can manifest as incessant masturbation and repetitive sexual advances. (A patient with memory loss might forget that he's just had sex with his wife or girlfriend, or mistake a stranger for an intimate partner.) Certain psychoactive drugs—especially those prescribed for Parkinson's disease—can also serve as nursing-home love potions.
So what happens when one of these patients with dementia starts sleeping around? According to federal law, nursing-home residents are guaranteed some small degree of privacy, as well as the right to "psychosocial well-being"—which can be taken to include free sexual expression. The administrator must balance these rights with the possibility that the patient isn't able to consent to sex at all, and that his every encounter amounts to an elder version of gray rape.
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.