Dementia and Consent for Sex Reconsidered

I. Introduction
The ability of an individual to consent to intimate acts is measured by his or her performance on cognitive tests, but these narrowly defined tests may not even detect functional decision-making capacity, such as the ability to choose what to eat or what to wear. Likewise, these tests fail to consider the fluidity of cognition in dementia patients, who may perform at much higher or lower levels from one day to the next or one hour to the next.

In a much-publicized case in Iowa, an older gentleman was charged with sexually abusing his wife in a nursing home. She had dementia, and in Iowa, as elsewhere, if a person cannot consent to sexual activity, participating in such activity with that person is considered rape. Although the husband was eventually acquitted, this case illustrates that while we strive to protect people who cannot say “no,” we can also deprive them of desired intimate relationships simply because they cannot say “yes.”

Because so little effort has been put forth to address this problem at a state or national level, long-term care facilities and advocates must take the lead in creating policies that address the problem. Policies emphasizing the individual lead to good care planning and a recognition that a one-size-fits-all approach does not work for people with dementia. A nursing home that honors residents’ right to intimacy and sexual expression must make its policy regarding these matters clear to family members who give over responsibility for their loved one to the home and must make it clear that such a policy may protect the home against lawsuits. The discussion and implementation of policies are springboards for education and training of caregivers on issues of sexuality and aging, which may result in a more meaningful person-centered approach to elder care.

II. Henry and Donna Rayhons
In 2014, Henry and Donna Rayhons, of Garner, Iowa, had been married for 7 years. It was a second marriage for both. Both were widowed and had children by previous spouses. By all accounts, their marriage was a new lease on life for the couple. Henry was a Republican state legislator, and Donna frequently accompanied him to legislative sessions in Des Moines. They were passionately in love, often demonstrating their affection publicly. Over time, Donna began to experience cognitive decline that required more and more of Henry’s attention. Two of Donna’s three daughters became especially concerned when Donna attempted to wash her hands in the toilet. They pressured Henry to place her in a nursing home. In March 2014, he reluctantly agreed to do so.

One daughter, knowing that Donna’s intimate relationship with Henry persisted, convinced the facility’s medical director to issue a recommendation, apparently based on Donna’s score on the Brief Interview for Mental Status (BIMS) and her daughter’s word, that continued sexual activity was not in Donna’s best interest. Most dementia experts caution that the BIMS measurement can change at different times of the day and may not be appropriate to gauge feelings such as the desire for intimacy. Nursing staff reported that Donna was always happy to see Henry and openly displayed her affection for him. Henry testified that Donna frequently was the one who initiated sexual activity. At a May 15 care planning meeting, Henry was informed of the “no sex” directive and indicated that he understood it.

About a week later, the facility transferred Donna into a semiprivate room with a new roommate. The move may have been partly initiated by her daughters’ desire to prevent further sexual activity between their mother and Henry. A curtain separated the beds, and when Henry visited on May 23, he closed the curtain. Donna’s roommate reported hearing noises that indicated that Donna and Henry were having sex. The staff notified police. Henry said he had been praying the rosary with his wife, but video surveillance showed him entering her room and leaving a half hour later, discarding her soiled underwear in the laundry hamper. Henry admitted to having sex but later, during trial, claimed that he had been coerced into making that statement. There is no evidence that Donna was ever asked about what happened.

After Donna’s death in August 2014, Henry was arrested and charged with sexual abuse in the third degree, a felony. Henry stood accused of committing a sex act on his wife, with whom he was not cohabiting, when she was suffering from a mental defect or incapacity that rendered her incapable of giving consent. This case was the first nationally reported prosecution of a married person for rape or sexual abuse of a spouse diagnosed with dementia. Henry insisted that the case go to trial so that he could be exonerated. The rape kit indicated that no sexual activity had occurred, but semen from stains found on the bed fit Henry’s genetic profile. In court, Henry told jurors that all he had done was reposition his wife in the bed, that he frequently transferred Donna’s dirty laundry from the floor to the hamper, and that he was “out of his mind” when he admitted to having sexual contact with his wife when he was questioned by police. Expert witnesses testified that the age of the semen stains was indeterminate. Donna’s roommate tearfully admitted that she was unsure what she had heard that day. Eight months after Donna’s death, jurors found Henry not guilty.1

Joel Yunek, Henry’s defense attorney, reminded jurors that their decision would be “debated, discussed, followed for years” and cautioned that a guilty verdict could make marital partners fearful of visiting their institutionalized spouses.2 Prior to Henry’s trial, nursing homes handled these incidents clumsily, on a case-by-case basis. Some nursing homes applied sexual abuse standards that were more appropriate for other populations; some home’s decisions may have been directed more by the family’s feelings about sexual activity (or abstinence) than the resident’s. Facilities were reactive rather than proactive and guided by false, ageist, and sexist notions about sexuality in older adults.

This article addresses preventive measures long-term care facilities should consider implementing, including assessment protocols, staff training, and the adoption of a person-centered care approach, to honor residents’ autonomy and avoid litigation.

III. Public Discussion About Intimacy
The New York Times ran a story on the Rayhons case shortly before the trial.3 Nearly 1,200 online comments followed the story — so many that the Times ran a story about the comments.4 An analysis of the comments by staff at the Center on Aging at Kansas State University revealed widely divergent public opinion about the meaning of consent and the cognitive ability to demonstrate sexual desire or dissent. Many commenters were alarmed at the meddling by family, nursing home organizations, and the judicial system in this private matter. Opinions may diverge, but from the volume of the response one thing is certain: People are ready to have this discussion.

It is difficult to know how much influence ageism plays in these cases. Older people are not supposed to be interested in sex, and those who are interested are considered abnormal. Until recently, we had little scientific information to conclude otherwise, but a large survey published in 2005 revealed that people remain interested in sex and frequently engage in intimate relationships well into their advanced years.5 A 2007 study reported that 26 percent of older people between 75 to 85 are sexually active, an astounding figure given that many people in this age group have lost their life partners.6 The few studies done on older populations with cognitive loss indicate similar results. Research involving 40 married couples in which one partner was afflicted with dementia indicated that 20 percent of the couples remained sexually active and nearly all the rest of the couples wished that they could be sexually active.7

Intimate relationships remain important throughout an individual’s life, promoting physical, psychological, and emotional well-being.8 Many older people living in nursing homes are deprived of human touch, which can lead to unresponsiveness, depression, and even death. This phenomenon is linked to the “failure to thrive” syndrome that once was associated only with children.9 Touch has been recognized as a fundamental human need by nursing professionals.10 Touch deprivation is particularly profound in the aging population, and older patients are the least likely to receive expressive touch from health professionals.11 Sexual activity has been shown to reduce the risk of heart disease, provide better overall fitness, reduce depression, and relieve pain.12 Nursing home staff report that residents who have intimate partners in the home take a greater pride in their appearance, have a better self-image, and enjoy love and intimacy.13 At a time when residents are losing so much, why not let them retain one positive element of their lives for as long as possible?

In our own Kansas State research on sexuality in nursing homes, we found that various types of sexual expression are prevalent in Kansas nursing homes.14 Older adults perceive sexual expression in broader terms than younger people do. A younger population may define sexual activity as intercourse, masturbation, or oral sex, whereas older people are much more likely to include touch, flirting, holding, and maintaining an attractive appearance as elements of sexuality. We found residents engaging in all of these activities in Kansas nursing homes, with varying degrees of staff acceptance. Few staff members are bothered when residents who have not lost cognitive function form intimate relationships, but they quickly become uncomfortable when intimate relationships, expressed in ways that go beyond touching and holding hands, develop between residents diagnosed with dementia.15

Most any form of sexual expression in these populations is viewed as inappropriate. Men fare the worst in this respect. A man discovered masturbating, for example, may prompt the facility to impose environmental changes: He might be restrained by having his clothing put on backward to make zippers inaccessible, or he might be removed from the area of the home where his person of interest resides. The facility might administer pharmaceuticals to decrease the male resident’s libido. More knowledgeable staff might investigate other reasons for what some consider the man’s inappropriate behavior, such as an infection or boredom. Women residents are seldom seen as the problem. Although women may be the initiators of intimate relationships, they are more likely to be treated as vulnerable persons in need of protection than as sexual beings.16

IV. Can Dementia Patients Consent?
Dementia is an umbrella term for the diseases that cause progressive cognitive loss (Alzheimer’s disease is the most prevalent). The BIMS is one of the ways in which this loss is measured. This test takes about 15 minutes and measures short-term memory, immediate recall, and attention. It is based on a 15-point scale, with 7 or below suggesting severe impairment, 8 to 12 suggesting moderate dementia, and 13 to 15 suggesting that a person is cognitively intact. The BIMS is considered a low-cost and time-saving way to monitor changes in cognition. However, it is possible for a person to score low on this test while maintaining higher functioning because of the area of the brain that may be affected.17 Even though the BIMS was not likely intended to determine the ability of an individual to consent to sexual activity, it has been used for this purpose.18

Some facilities choose their own cutoff points for determining whether a person has dementia. The benefit of the BIMS tool for nursing homes is its objectivity. It indicates that a resident either does or does not have dementia. There is no subjective wrangling over “buts” and “what-ifs.” The downside to the BIMS is that dementia can be fluid. A person can score 3 or 4 points higher on the BIMS at certain times of the day. Also, different types of decisions require different levels of cognition. In one study, the Mini Mental Status Examination (MMSE), the BIMS precursor, proved to be a poor predictor of incapacity to consent.19 As Richardson and Lazur wrote in a 1995 article in American Family Physician:

[Patients] with early dementia may not be able to render informed consent to an operation that has a significant risk of death but may be able to decide on what flavor of ice cream they want for dessert. In most cases, the ability to consent to sexual activity could be considered to lie closer to the decision about ice cream than to the decision about major surgery.20

Tarzia and co-authors argue in their treatise on medical ethics that passion and sentiment must feature prominently in discussions related to decisions about sexual consent.21 Even though most medical assessments and protocols are developed in logical steps, the development of relationships and the decisions to have sex are seldom structured in a logical manner with a careful weighing of the pros and cons or implications of these decisions.22 Thoughtful discussions and decision-making are much more likely to happen in nursing homes that have written policies about sexuality and introduce the topic of resident sexual conduct when a new resident moves in.

V. States Define Consent
States vary in how they determine the capacity of an individual to consent to sexual activity. New Jersey may have the most liberal interpretation, requiring only that the person understand the sexual nature of the act and its consequences and that the act be voluntary. Some states, such as Iowa and Kansas, also require an understanding of the potential consequences of the sexual conduct, while Alabama, Colorado, Hawaii, Idaho, New York, and New Mexico require an additional standard — an understanding of the “moral quality” of the sexual conduct. This morality code requires that the individual be “mentally capable of understanding the social mores of sexual behavior.”23 To meet this standard, the individual must understand the health consequences of the behavior as well as the consequences of engaging in activity that society may deem immoral.

The definition of elder sexual abuse also varies by state but most use guidelines from the National Center on Elder Abuse, which deems sexual abuse as “non-consensual sexual contact of any kind with an elderly person” and “[s]exual contact with any person incapable of giving consent.”24

All states recognize that having sexual activity with a person who does not have the mental capacity to consent is a criminal offense.25 But courts assume individuals have the capacity to consent to sexual activity once they reach the age of consent. The burden is on the prosecution to prove that the victim lacked the requisite capacity to consent at the time of the sexual activity. Courts typically choose one of two methods for determining capacity of an individual to consent to sex — the clinical method and the judicial determination method.26 In the clinical method, the court looks to the determination of a qualified psychiatrist, psychologist, or physician. In the judicial determination method, the court examines evidence and expert testimony. Both methods are costly and, in a sense, rob the elderly person of power because the elder has no role in determining his or her own capacity to consent when either method is used.

VI. Can I Write an Advanced Directive So That I Can Have Sex in the Nursing Home?
In the thread in the comment section of The New York Times article about the Rayhons case, several people asked in a tongue-in-cheek manner whether they needed to sign something now to ensure their sexual freedom if or when they became incapacitated. At least one author suggested surrogate decision-makers or a document such as a durable power of sexual expression for persons with cognitive loss.27 Indeed, this specific type of written directive is recognized by the National Guardianship Association’s Standards of Practice.28 Relying on guardians or documents, however, presents problems. It is unlikely that a guardian would be available for a quick decision at the moment the incapacitated person wished to engage in sex. Guardians usually are the older person’s relatives, who may be uncomfortable with and disinclined to consent to their parent’s, uncle’s, or grandmother’s sexual relationship. People who considered and wrote down their sexual preferences before cognitive loss may feel differently once their capacity is diminished or lost. In addition, they may change their minds throughout the day.

VII. How Are Consent Decisions Made in Nursing Homes?
The belief that older adults are asexual, especially when they require the intensive care of a nursing home, is likely the primary reason that nursing homes have not been active in considering how to manage sexual expression. Few have written policies, and when a case arises, they piece together a plan, sometimes calling upon a state ombudsman to intervene.

Ombudsmen mediate in cases in which conflicts arise, and nursing homes face risks resulting from a resident’s cognitive impairment, limited knowledge of sexuality, lack of privacy, and values.29 They are an important link to advocacy for the resident’s right to intimacy and are among the key team members in decisions about resident sexual expression.

Tenenbaum wrote in a 2009 Indiana Law Review article that two lines of analysis are used when deciding whether to permit a nursing home resident with dementia to have an intimate relationship: substituted judgment and best interest.30 Substituted judgment involves a surrogate — the nursing home, a guardian, or a spouse — making decisions for a resident. The surrogate must reach, as close as possible, the decision that the resident would have made if competent by gathering information about the resident’s core values, philosophical and religious beliefs, morals, and patterns of behavior. Typically, this information comes from the family. But some studies have shown that families are poor predictors of what patients want.31 Family members react emotionally and assume that their loved one holds values similar to their own.32 Despite this, nursing homes have very strong financial and legal incentives to favor the family view. Families, who often choose the home and pay the bills, are the ones most likely to sue the home if they believe that wrongdoing has taken place.

Decision-making based on best interest analysis involves determining what course would benefit the resident the most and cause the least amount of harm. The resident’s safety, health, and well-being are considered based on what a hypothetical person would choose. Facilities generally use best interest analysis if there is no family from whom or historical information from which to make recommendations for a resident. Because little objective criteria on which to base the decision exist, it is difficult to prevent personal bias from influencing the decision. Best interest analysis is more likely to favor allowing residents to have intimate relationships. Tenenbaum, in a 2012 article, suggests that both substituted judgment and best interest analyses are important and that teams of persons, including family members, and the resident when possible, consider all information in making these decisions in care planning meetings.33

Nursing homes also use more formal assessments to help them make decisions regarding the complicated issue of allowable sexual expression. Lichtenburg developed a decision tree in 1997 to guide decisions using the MMSE.34 A resident who scores 14 or below on the MMSE is deemed unable to consent, and the assessment goes no further. If a resident scores higher than 14, the decision tree proceeds to measure his or her ability to consent based on the following questions: Is the person able to avoid exploitation? Is the person aware of the relationship? Is the person aware of risk? However, for the reasons noted previously in this article, the MMSE may be too rigid to be used effectively as a basis for determining an individual’s capacity to consent.

Wilkins suggests six important criteria for determining the ability to consent: 1) voluntariness (the resident’s ability to decide without coercion); 2) safety (the resident is reasonably protected from harm); 3) no exploitation (the resident is not taken advantage of and respects others’ privacy); 4) no physical or psychological abuse (the resident’s partner understands that he or she must stop when given a verbal or physical indication to do so); 5) the resident’s ability to say “no” verbally or nonverbally; and 6) the occurrence of sexual activity at a socially appropriate time and place.35 Tenenbaum and Wilkins agree that each case should be determined individually by a team of persons interested in the best possible outcomes for a resident.

VIII. Regulations Regarding Nursing Home Policies for Sexual Expression
Federal and state regulations offer little guidance to nursing homes wrestling with setting realistic policies and families wrestling with making compassionate decisions on the issue of sexual expression.36 Federal privacy regulations are limited. The right to personal privacy is described by the Centers for Medicare & Medicaid Services (CMS) Interpretive Guidelines as follows:

[T]he resident has the right to privacy with whomever the resident wishes to be private and that this privacy should include full visual, and, to the extent desired, for visits or other activities, auditory privacy. Private space may be created flexibly and need not be dedicated solely for visitation purposes.37

Federal law mandates privacy within a resident’s room,38 room designs (generally with ceiling-suspended curtains) that ensure the full visual privacy of the resident,39 the right of a married couple to reside together in the same room,40 and the right to receive care and services to attain and maintain the highest practicable level of function41 as it relates to the resident’s comprehensive care plan.42

Many administrators responding to the Kansas nursing homes survey claimed they would follow their facilities’ written policies when determining the appropriateness of a resident’s act of sexual expression.43 But when they were asked to describe the specific measures in place to handle these occurrences, it was apparent that the guidelines they spoke of were general policies mandated by government regulations to protect resident’s rights, not guidelines written specifically to deal with sexual situations.

IX. A Nursing Home Tackles the Issue
The Hebrew Home at Riverdale in New York was believed to be the first home to develop a sexuality policy, which it did about 20 years ago. The home recently updated the policy to include guidelines for the care of residents with dementia.44 The policy spells out the facility’s philosophy that intimacy and sexuality are good for residents and thus are to be encouraged. Staff and family are to be respectful and nonjudgmental. The policy outlines education and measures with the goal of honoring residents’ sexual expression.

Melanie Davis, Ph.D., certified sex educator and co-president of the Sexuality and Aging Consortium, suggests that nursing facility sexuality policies include the following fundamental elements: self-determination and autonomy for residents; assessment of residents’ ability to make choices; intervention to prevent harm; education about and assistance with sexual expression; notification of residents and their families about the sexuality policy; protection of residents’ privacy and confidentiality; procedures to remedy and address concerns; and training of staff and caregivers about sexuality, sexual health care, and sexuality policies.45 Some operators of large nursing home chains report that they address sexuality issues on a case-by-case basis, with training about sexual situations offered as a part of broader programs.46 They do not want rules that might lock them into a course of action — they want to be open to the continuing changes in the needs of residents.

How effective are sexuality policies? Will they protect a nursing home from lawsuits? Dick Butler of Indianapolis, an attorney who travels the country providing legal consultation to nursing homes, believes that discussions with various audiences (staff, residents, family, ombudsmen, and regulators) should take place before policies are established. “Most facilities have no real policies, which is probably OK since the discussions should guide,” he stated. “The basic question is the one of who decides. … This is so personal, I’m not sure there can be a general rule except for the thought that the individual determines, as much as possible, what [his or her] ‘standard’ is.”47 The Hebrew Home policy was crafted over a period of 8 months by an interdisciplinary team. A recent update to the policy covers issues related to LGBTQ older adults. Since the adoption of the policy, no lawsuits about sexual issues have been filed against the home. It is likely that the attention paid to the home’s policy at admission and the policy’s appearance on the home’s website alert family members to the fact that, if they do not want their loved one to have any opportunities to engage in sexual expression, they might want to look somewhere else for care.

There seems to be little downside to having a sexuality policy in a home, but registered nurse and Philadelphia lawyer Alan C. Horowitz, who writes the blog Long Term Living, cautions about the effectiveness of sexual expression policies in protecting homes against lawsuits. “I do think it makes sense for skilled nursing facilities to have appropriate policies and procedures for dealing with the issue, as it will almost certainly arise,” he writes. “However, if a SNF [skilled nursing facility] has an effective policy but its staff fails to follow it, I can see the policy being used against the facility, both by CMS and the plaintiff’s bar. Staff education is one of several key components. I have had a case where CMS imposed a civil money penalty of more than one million dollars and there really is no deficiency — the case stemmed from a nurse’s own personal belief about what is and isn’t appropriate.”48

X. Person-Centered Partnerships
Missing from the literature is a recognition of the importance of a person-centered approach to sexual expression in long-term care. Policies and education are important, but consistency in caregiver assignment is more significant in the care of persons with dementia. In facilities where staff members are consistently assigned to residents with the express intent of developing close professional relationships with residents and families, a resident’s need and desire for intimate expression is more easily determined. Caregivers can identify whether an intimate relationship would be beneficial or risky to the individual. This partnership with the resident, the family, and other professionals in the organization can be used to inform practices that are specific to each resident, thus avoiding a standard one-size-fits all policy. These practices typically are discussed and determined during care planning meetings, a collaborative process involving the resident and his or her supporters that results in the development and implementation of an action plan to realize the resident’s personal goals.49 The person-centered care plan documents resident wishes and how those wishes should be carried out. The focus is on treating the resident with dignity and providing choices.

Elder care lawyers have a role in counseling clients and their families to look for nursing homes that offer person-centered care. They should encourage families to establish relationships with caregivers, organize a systematic way to communicate about their loved ones’ care, and attend care planning meetings to express their views and guide the direction of the care provided to their loved ones. Enlightened lawyers will keep an open mind and avoid the ageist notions that all older adults are (or should be) asexual. Attorneys can help families focus on their loved ones’ needs and desires rather than on their own biases and examine whether sexual activity might enhance or deter an elder’s quality of life.

XI. Conclusion
So what’s ahead? Progress may be inevitable. Because of the sheer number of older adults in the baby boomer generation and improvements in overall health and health care that have led to people living longer, we will see far greater numbers of older people with cognitive impairments. There has been a lot of speculation that the next generation of long-term care users, who came of age with very different opinions of sexuality, is more likely to demand the right to sexual expression. Given human nature, it is unlikely that ageist beliefs and stereotypes about older persons and sex will disappear. But given the demographics, the need for education and policy development can only grow.

For the immediate future, progress might be concentrated on approaches to individual cases than changes in general policies. An example is Iowa. Despite a second highly publicized sex/dementia/nursing home case prior to the Rayhons case just 3 years ago,50 Merea Bentrott, who works for the State of Iowa Office of Ombudsman, reported that “[u]nfortunately, there hasn’t been a lot of action … here (legislatively or otherwise)” in terms of guidelines to assist caregivers and families wrestling with the decision to provide older adults with autonomy and choice while protecting them from sexual abuse. She is, however, heading up a multiagency task force dedicated to sexuality-related issues. The goal is to develop a guidebook that includes policy development, training recommendations, and proper documentation that comport with Iowa law.51

For baby boomer children today, the burning question is how to broach the sensitive subject of sexual activity and desires with their parents. People over 80 never had sex education classes. They did not grow up with images of sex in movies, television, and print, and they were taught not to use the proper names for body parts or even to use the word “pregnant”; hence, the expression “in the family way.” It may be possible to start a conversation by mentioning a news article; for example, “Mom, I just read that there is a recent increase in sexually transmitted diseases in the older adult population because they don’t think they need to wear condoms!” This is a very easy way to gauge Mom’s level of knowledge and her comfort in discussing older adult sexuality. Not everyone will be able to have these conversations, which is all the more reason to find a nursing facility that is actively engaged in educating staff members on how to honor sexuality and intimate relationships when they occur in the home.

Sexuality policies and education must be informed by person-centered practices that recognize the human need to engage in relationships; for example, a nursing home resident’s relationship to someone he or she loves, the resident’s relationship with the staff, and the family’s relationship with the staff and resident. Nursing homes should consider themselves in the business of building connections to improve the lives of the people they serve. Person-centered care is an approach toward developing humane practices and should inform any sexual expression initiative in nursing homes.

Citations
1 Pam Belluck, Sex, Dementia and a Husband on Trial at Age 78, N.Y. Times, www.nytimes.com/2015/04/14/health/sex-dementia-and-a-husband-henry-rayhons-on-trial-at-age-78.html (Apr. 13, 2105); Sarah Kaplan, Former Iowa Legislator Henry Rayhons, 78, Found Not Guilty of Sexually Abusing Wife With Alzheimer’s, Washington Post, www.washingtonpost.com/news/morning-mix/wp/2015/04/23/former
-iowa-legislator-henry-rayhons-78-found-not-guilty-of-sexually-abusing-wife-with-alzheimers (Apr. 23, 2015); Catherine Lucey, Can Someone With Dementia Consent to Sex? Iowa Trial to Decide, CTV News, http://www.ctvnews.ca/health/can-someone-with-dementia-consent-to-sex-iowa-trial-to-decide-1.2315566 (last updated Apr. 7, 2015).

2 Bryan Gruley, Iowa Man Accused of Raping Wife With Alzheimer’s Is Acquitted, Bloomberg, http://www.bloomberg.com/news/articles
/2015-04-22/iowa-man-accused-of-raping-wife-with-alzheimer-s-is-acquitted (Apr. 22, 2015).

3 Belluck, supra n. 1.

4 Nancy Wartik, A Lively Comment Discussion About Dementia and Sex, N.Y. Times, www.nytimes.com/2015/04/17/health/a-lively-com
ment-discussion-about-dementia-and-sex.html (Apr. 17, 2015).

5 J.D. DeLamater & M. Sill, Sexual Desire in Later Life, 42(2) J. Sex Research 138 (2005).

6 S.T. Lindau et al., A Study of Sexuality and Health Among Older Adults in the United States, 357(8) New Eng. J. Med. 762 (2007).

7 E.L. Ballard, Attitudes, Myths, and Realities: Helping Family and Professional Caregivers Cope With Sexuality in the Alzheimer’s Patient, 13(3) Sexuality & Disability 255 (1995).

8 DeLamater & Sill, supra n. 5.

9 J.V. Braun et al., Failure to Thrive in Older Persons: A Concept Derived, 28(6) Gerontologist 809 (1988).

10 J. Dominian, The Psychological Significance of Touch, 67(29) Nursing Times 896 (1971).

11 H. Rozema, Touch Needs of the Elderly, Nursing Homes 42 (Sept./Oct. 1986).

12 Alan Farnham, Is Sex Necessary? Forbes, http://www.forbes.com/2003/10/08/cz_af_1008health.html (Oct. 8, 2003); R.R. Hajjar & H.K. Kamel, Sexuality in the Nursing Home, Part 1: Attitudes and Barriers to Sexual Expression, 4(3) J. Am. Med. Dirs. Assn. 152 (2003).

13 Lindau et al., supra n. 6.

14 G. Doll, Sexuality in Kansas Nursing Homes: Practice and Policy, 39(7) J. Gerontological Nursing 30 (2013).

15 Id.

16 Gayle A. Doll, Sexuality and Long-Term Care: Understanding and Supporting the Needs of Older Adults (Health Professions Press 2012).

17 Esther Heerema, How Accurate Is BIMS With Identifying Dementia? http://alzheimers.about.com/od/testsandprocedures/fl/What-Is-the-BIMS-How-Accurate-Is-It-in-Identifying-Dementia.htm (updated May 5, 2016).

18 P.A. Lichtenberg, Clinical Perspectives on Sexual Issues in Nursing Homes, 12(4) Topics in Geriatric Rehab. 1 (1997).

19 S.Y. Kim & E.D. Caine, Utility and Limits of the Mini Mental State Examination in Evaluating Consent Capacity in Alzheimer’s Disease, 53(10) Psychiatric Servs. 1322 (2002).

20 J.P. Richardson & A. Lazur, Sexuality in the Nursing Home Patient, 51(1) Am. Fam. Phys. 121 (1995).

21 L. Tarzia et al., Dementia, Sexuality and Consent in Residential Aged Care Facilities, 38(10) J. Med. Ethics 609 (2012).

22 J.R. Lindsay, The Need for More Specific Legislation in Sexual Consent Capacity Assessments for Nursing Home Residents: How Grandpa Got His Groove Back, 31(3) J. Leg. Med. 303 (2010).

23 M. Lyden, Assessment of Sexual Consent Capacity, 25 Sexuality & Disability 3 (2007).

24 U.S. Dept. of Health & Human Servs., Natl. Ctr. on Elder Abuse, Administration on Aging, Types of Abuse, http://www.ncea.aoa.gov/FAQ/Type_Abuse/index.aspx (accessed May 22, 2016).

25 S.L. Tang, When “Yes” Might Mean “No”: Standardizing State Criteria to Evaluate the Capacity to Consent to Sexual Activity for Elderly With Neurocognitive Disorders, 22 Elder L.J. 449, 468 (2015).

26 M.C. White, The Eternal Flame: Capacity to Consent to Sexual Behavior Among Nursing Home Residents With Dementia, 18 Elder L.J. 133 (2010); J.M. Wilkins, More Than Capacity: Alternatives for Sexual Decision Making for Individuals With Dementia, 55(5) Gerontologist 716, (2015).

27 Melinda Henneberger, An Affair to Remember, Slate, www.slate.com/id/2192178 (June 10, 2008).

28 Natl. Guardianship Assn., National Guardianship Association Standards of Practice 8 (4th ed.), http://www.guardianship.org/documents/Standards_of_Practice.pdf (2013).

29 L.J. Cornelison & G.M. Doll, Management of Sexual Expression in Long-Term Care: Ombudsmen’s Perspectives, 53(5) Gerontologist 780 (2013).

30 E.M. Tenenbaum, To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex, and Adultery, 42(3) Ind. L. Rev. 675 (2009).

31 R.M. Houts et al., Predicting Elderly Outpatients’ Life-Sustaining Treatment Preferences Over Time: The Majority Rules, 22(1) Med. Dec. Making 39 (2002); S. Kothari & K. Kirschner, Decision-Making Capacity After TBI: Clinical Assessment and Ethical Implications, in Brain Injury Medicine: Principles and Practice (Nathan D. Zasler et al. eds., Demos Med. Publg. 2007).

32 J. Kayser-Jones & M.B. Kapp, Advocacy for the Mentally Impaired Elderly: A Case Study Analysis, 14(4) Am. J.L. & Med. 353 (1989).

33 E.M. Tenenbaum, Sexual Expression and Intimacy Between Nursing Home Residents With Dementia: Balancing the Current Interests and Prior Values of Heterosexual and LGBT Residents, 21 Temp. Political & Civ. Rights L. Rev. 459 (2012).

34 Doll, supra n. 14.

35 Lindsay, supra n. 26.

36 Doll, supra n. 16.

37 Centers for Medicare & Medicaid Services (CMS) Interpretive Guidelines, § 483.10(e), https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/downloads/R5SOM.pdf (Nov. 19, 2004).

38 Id. § 483.20(d).

39 Id. § 483.70(d).

40 Id. § 483.10(m).

41 Id. § 483.25.

42 Id. § 483.20(k).

43 Doll, supra n. 14.

44 Ann Brenoff, Dementia and Sex: What Was Really on Trial With Henry Rayhons? Huffington Post, www.huffingtonpost.com/ann-brenoff/dementia-and-sex-henry-rayhons_b_7122460.html (updated Jun. 23, 2015).

45 Melanie Davis, Conference Presentation, LTC Sexuality Policies as Best Practice and Smart Business Decision (Alexandria, Va., Sexuality & Aging Inst. Aug. 13, 2015).

46 Bryan Gruley, Sex in Geriatrics Sets Hebrew Home Apart in Elderly Care, Bloomberg, http://www.bloomberg.com/news/articles/2013-07-23/sex-in-geriatrics-sets-hebrew-home-apart-in-elderly-care (July 23, 2013).

47 Email from Richard Butler, Re: Sexuality Policies for Nursing Homes (Oct. 26, 2015) (copy on file with author).

48 Email from Alan Horowitz, Re: Sexuality Policies for Nursing Homes (Oct. 18, 2015) (copy on file with author).

49 Advancing Excellence in America’s Nursing Homes, Person Centered Care: Consumer Fact Sheet, www.nhqualitycampaign.org/file/AE_Factsheet_for_Consumers_PersonCenteredCare.pdf (2013).

50 Bryan Gruley, Boomer Sex with Dementia Foreshadowed in Nursing Home, Bloomberg, http://www.bloomberg.com/news/articles/2013-07-22/boomer-sex-with-dementia-foreshadowed-in-nursing-home (July 21, 2013).

51 Email from M. Bentrott to Author, Re: Sexuality Policies for Nursing Homes (Oct. 19. 2015) (copy on file with author).