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Rape case asks if wife with dementia can say yes to sex with her husband

Bloomberg

More than 350 people attended the wedding reception of Donna Lou Young and Henry V. Rayhons in Duncan, Iowa, on Dec. 15, 2007. Family and friends ate pork roast and danced the polka to celebrate the union of a widow and a widower, both in their 70s, who had found unexpected love after the deaths of their long-time spouses.

For the next six-and-a-half years, Henry and Donna Rayhons were inseparable. She sat near him in the state House chamber while he worked as a Republican legislator. He helped with her beekeeping. They sang in the choir at Sunday Mass.

“We just loved being together,” Henry Rayhons says.

Today, he’s awaiting trial on a felony charge that he raped Donna at a nursing home where she was living. The Iowa attorney general’s office says that Rayhons had intercourse with his wife when she lacked the mental capacity to consent because she had Alzheimer’s. She died on Aug. 8, four days short of her 79th birthday, of complications from the disease. One week later, Rayhons, 78, was arrested. He pleaded not guilty.

To convict Rayhons, prosecutors must first convince a jury that a sex act occurred in his wife’s room at the Concord Care Center in Garner, Iowa, on May 23. If prosecutors prove that, his guilt or innocence will turn on whether Donna wanted sex, and whether her dementia prevented her from making that judgment and communicating her wishes.

The state of Iowa vs. Henry Rayhons offers a rare look into a complex and thinly explored dilemma that will arise with increasing frequency as the 65-and-over population expands and the number of people with dementia grows. It suggests how ill-equipped nursing homes and law enforcement agencies are to deal with the nuances of dementia, especially when sex is involved.

The combination of sex and dementia also puts enormous strains on family relationships, which turned out to be a critical element in the Rayhons case. His four children are supporting him. Two of Donna’s three daughters played a role in Rayhons’ investigation. Through their attorney, Philip Garland, the two declined to be interviewed for this story.

Sexual assault laws years ago recognized that a spouse cannot force himself or herself upon the other. Dementia confuses the issue. People with dementia can lose past inhibitions about sex and become aggressive about seeking it. They might be unable to balance a checkbook while they’re perfectly capable of deciding whether they desire a partner’s affections.

Experts in geriatrics say that intimacy — from a hug to a massage to intercourse — can make dementia sufferers feel less lonely and even prolong their lives. Love complicates things further.

LOVE STORY

By many accounts, Henry and Donna Rayhons were deeply in love. Their families embraced their marriage. The case has produced no evidence thus far that the couple’s love faded, that Donna failed to recognize her husband or that she asked that he not touch her, said Rayhons’ son Dale Rayhons, a paramedic and the family’s unofficial spokesman.

Based on evidence generated so far, state prosecutors are likely to portray Rayhons as a sex-hungry man who took advantage of a sweet, confused woman who didn’t know what month it was, forgot how to eat a hamburger and lost track of her room.

“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?”

Sitting in his son’s heated garage on a chilly October night, Rayhons convulses with sobs recalling the events of recent months. He says he’s most distraught about being kept from Donna during the last weeks of her life.

“My wife just died and you’re charged with something like this because you prayed by her bed,” he says. “It hurts. It really hurts.”

A spokesman for Iowa Attorney General Tom Miller declined to comment or make prosecutors available for interviews.

Four years ago, Donna was diagnosed with possible early onset Alzheimer’s. By early this year, two of Donna Rayhons’ daughters were concerned about their mother’s worsening dementia and the way Rayhons was caring for her. Linda Dunshee, 54, and Suzan Brunes, 52, had heard from a legislator, a lobbyist and other people working in the Capitol that he sometimes left her alone while he was in meetings.

John Boedeker, a family physician in the Garner area, examined Donna and recommended placing her in a nursing home.

On March 29, Brunes and Dunshee moved their mother into Concord Care Center in Garner, two miles from the condo where Donna and Rayhons lived.

Concord Care administrator Holly Brink declined to comment on the Rayhons case.

Concord Care has no designated unit for dementia sufferers, though staff members try to minimize activity that could agitate them, Brink said. The home doesn’t have a specific policy on sexual matters.

Donna had a room to herself where one afternoon a nurse opened the door to find her in bed and Rayhons kneeling in prayer. Brink later told a state investigator that the two held hands and “Henry was more affectionate with Donna than most people were,” an interview summary said.

Because the legislature was in session, Rayhons awoke many days at 5 a.m. so he could see Donna before driving two hours to Des Moines. When the House finished for the day, he drove back to have dinner with her, say a Rosary, and kiss her goodnight, he said.

COGNITIVE TEST

Donna’s condition worsened in May. She had trouble eating and finishing sentences, didn’t recognize mashed potatoes and wandered into other residents’ rooms, according to statements to investigators and other documents.

Brunes and Dunshee were increasingly concerned that their mother was having sex with Rayhons when she lacked the capacity to knowingly consent, according to interviews with investigators and other documents.

Brunes told a state investigator that her mother said Rayhons wanted sex one to two times daily. Rayhons later told the investigator that his wife enjoyed sex whenever they had it.

On May 14, Brunes and Dunshee met with Brink and John Brady, another family physician caring for Donna at the home. Brady initialed a one-page document listing the restrictions and including a question about whether Donna was mentally able to consent to “any sexual activity.” Brady wrote, “No.”

The plan and the sexual decision were based on Donna faring poorly on a standardized cognitive test called the Brief Interview for Mental Status. The BIMS is used to identify nursing home residents with dementia for the federal Centers for Medicare and Medicaid Services, which regulates nursing homes.

Test subjects score from 0 to 15 on a series of memory questions such as what year, month and day it is. They’re given the words “sock,” “blue,” and “bed” and asked to repeat them. Donna scored 2 on a BIMS given her on April 3 and zero on a May 13 test.

Using the BIMS to gauge a dementia sufferer’s ability to make sexual and other decisions is a mistake made by many long-term care facilities, said Susan Wehry, a geriatric psychiatrist and commissioner of the Vermont state department that investigates sexual and other abuse in nursing homes.

“I’m sensitive to the nursing home’s desire to protect their resident and certainly to the daughters’ desire to protect their mother,” Wehry said. “The BIMS in this case tells me nothing except that she has dementia. You can have virtually no short-term memory and still consent to a lot of things.”

Rayhons was presented with the document saying Donna couldn’t make decisions about sex in a meeting with her daughters and Concord Care staff on May 15. He said he understood and “it wouldn’t be any problem,” Brunes told a state investigator.

A few days later, Brunes and a Concord Care social worker discussed moving Donna into a room with a roommate she could interact with, according to the log the daughters kept. Donna moved into Room 12 North on Friday, May 23. She wasn’t happy about it, according to the daughters’ log. She wept and accused Brunes of not liking her husband.

That evening, Donna’s roommate, 85-year-old Polly Schoneman, was sitting in a chair when Rayhons came to visit Donna at about 7:40 p.m. Shortly after he left, Schoneman hit the call button in the bathroom. She was crying. “I just can’t stand him,” Schoneman told them. She said Rayhons closed a privacy curtain between the beds and said, “Honey, I’m going to get you ready for bed,” the staff notes say. Schoneman said she then heard “sexual” noises, the notes say. A video camera in the hallway caught Rayhons dropping his wife’s panties into a hamper.

Dunshee asked that police be called. Garner’s police chief and Brunes took Donna to a hospital for a sexual assault test, the staff notes say. Donna’s panties and bedding were sent to the state crime lab.

Three weeks later, Rayhons was getting his mail one morning when special agent Scott Reger of the Iowa Division of Criminal Investigation pulled up in an unmarked Chrysler 300. He and Reger talked for almost two hours.

Reger asked about their sex life. “It was not a regular thing,” Rayhons told the agent. At his age, he said, “you forget about that stuff and you just want togetherness.” He said Donna on occasion asked for sex by saying, “Shall we play a little bit?” He said he “never touched her when she didn’t want it and I only tried to fulfill her need when she asked for it.”

Reger pressed him about the evening of May 23. Rayhons said he couldn’t remember being in Donna’s room. After suggesting that tiny video cameras had captured Rayhons having sex with Donna, Reger asked whether Rayhons had placed his penis inside his wife. Rayhons said, “I would guess … if … if that’s what you’re saying, yeah.” The state hasn’t produced evidence thus far of videos taken in the room.

Rayhons acknowledged seeing the document asserting that Donna couldn’t consent to sex. Then he argued with Reger about whether she could. “She still asks for it,” Rayhons said. After letting Reger take DNA swabs of his mouth, Rayhons said, “I don’t remember having sex in that room with her. I really do not.”

Rayhons saw his wife for the last time on Aug. 7. She died the next day.

Rayhons was arrested three days later and released on bond.

In court filings, prosecutors say Rayhons confessed to having sex with his wife. They also cite what Donna’s roommate, Schoneman, told the nursing home staff on May 23. (In a June 5 interview with a different state investigator, Schoneman revised her earlier words. She said she heard whispering, not sexual noises, although she worried for Donna’s safety.)

The state crime lab completed Donna’s rape test Nov. 20. The exam showed no evidence of seminal fluid or DNA other than Donna’s on swabs of her mouth and vagina. A stain in her underwear “indicated the presence of seminal fluid; however, no spermatozoa were microscopically identified,” the two-page lab report said.

Prosecutors have argued that a lack of DNA evidence wouldn’t refute Rayhons’ alleged confession. Rayhons’ attorney, Joel Yunek, said in a court filing that what Rayhons told agent Reger is “vague” unless “snippets of the interview are selectively taken out of context.”

Rayhons’ trial is scheduled to begin Jan. 28.

With assistance from Michael Weiss and Anita Kumar in Princeton and Katherine Kriegman in New York.

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