Consent is intertwined with all aspects of medical care. A patient must give consent before undergoing treatment by a physician. If the patient presents emergently (in the absence of an advance directive) and cannot signal consent, our laws presume consent – namely a reasonable person would want everything done to save his life. And, if a patient is deemed incompetent, a proxy can step in to provide or withhold consent.

 

A doctor who performs surgery without the patient’s consent commits battery. This includes operating on the wrong patient, the wrong organ, the wrong side.

 

Battery is an “unwanted touching.” One defense to an unwanted touching is consent. A person must be competent to consent.

 

Similar issues surface with sex. Lawful sex is a consensual act between parties competent to give consent. Not every person is competent to give consent. A 13 year-old cannot give lawful consent to engage in sex with a 40 year old. A woman just given Rohypnol and splayed out on the couch cannot give consent. A patient under anesthesia cannot give consent.

 

Henry Rayhons is being forced to address this thicket regarding consent. In 2007, Donna Young and Henry Rayhons married. They found unexpected love after the deaths of their respective spouses. By all accounts, they were inseparable; deeply immersed in each other’s lives.

 

Today, Mr. Rayhons is awaiting trial on felony charge he raped Donna at a nursing home. The Iowa Attorney General’s office said Rayhon had intercourse with his wife when she lacked capacity to consent because of Alzheimer’s. Donna died on August 8^th at the age of 78. One week later, Rayhons, age 78, was arrested.

 

Here’s what the State of Iowa versus Henry Rayhons is prosecuting.

 

“… 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.”

“In interviews, Rayhons said his life and reputation are already ruined. Shortly before his arrest, he withdrew from the election that probably would have won him his 10th consecutive two-year term representing a northern Iowa district in the state House of Representatives.”

 

Donna was placed in a home called Concord Care. Concord has no designated unit for dementia sufferers. In contrast to a number of other nursing facilities, the home had no policy on sexual matters.

 

“(Two daughters) Brunes and Dunshee also 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. The daughters’ log says a nurse told the women that on a number of occasions, Donna was wearing nothing but a robe after a visit from Rayhons, and that staffers “felt sickened by what he was doing to her.”

“Brunes told a state investigator that her mother said Rayhons wanted sex one to two times daily, and that Donna once pointed at her crotch and said, “Henry likes this a lot.” Rayhons later told the investigator that his wife enjoyed sex whenever they had it.”

“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. The home needed Donna’s room for a male resident and Brunes thought having a roommate might prevent “potential sexual acts,” according to a log she and Dunshee 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. He stayed for about half an hour. Shortly after he left, Schoneman hit the call button in Room 12 North’s bathroom.

She was crying when nurse Shari Dakin and a nurse assistant came in. “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. “I’m not stupid, I know what was going on,” she told the staffers. A video camera in the hallway caught Rayhons dropping his wife’s panties into a hamper.

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 in Ankeny.

By then, Rayhons knew he was under investigation for possible sexual assault. It had come up at an informal court conference about Brunes’ successful petition to become Donna’s temporary legal guardian. Rayhons initially thought he should be his wife’s guardian and backed off after learning he “had a much bigger fight coming,” son Dale said.

Under terms of the guardianship, Rayhons agreed to more limits on interactions with Donna. He needed Brunes’ permission to take his wife on outings. Among other things, Rayhons was kept from taking Donna to a friend’s funeral, because her daughters felt it could agitate her.

Rayhons saw his wife for the last time on Aug. 7. It was only the second time he’d been allowed to see her for several weeks. He and son Gary made the 45-minute drive to Hampton, Iowa, where Donna had been moved to an ABCM facility with an Alzheimer’s unit.

Dunshee and Brunes were with their mother. She was incommunicative. Rayhons knelt by her bed and prayed the Rosary. Gary said his father held Donna’s hand and said, “Love you, Honey.”

She died the next day.

Rayhons attended Donna’s Aug. 12 funeral at St. Boniface, the church where he married her. He was arrested three days later and released on $10,000 cash bond. The Iowa Department of Public Safety issued a one-page press release about the arrest. The release made no mention that the alleged rape victim was Rayhons’ wife.

The state crime lab completed Donna’s rape test Nov. 20. It took six months to process because of a backlog at the lab. 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.

Rayhons’ son Dale said that the stain must be old and the test results show that his father didn’t have sex with Donna on May 23. In a recent court filing, prosecutors said Donna’s bedding has yet to be tested and the presence of the stain “is entirely consistent with the State’s theory of the case.” Prosecutors also have argued that a lack of DNA evidence wouldn’t refute Rayhons’ alleged confession.”

Not everyone in the nursing home industry believes this is prima facie case of rape.

“This was not a rape,” said Daniel Reingold, president and chief executive of the Hebrew Home at Riverdale, New York, a nursing home that has a policy of encouraging consensual sex among its residents, including those with dementia.

“It sounds like they had a really beautiful relationship,” Reingold said after reviewing the Rayhons case at the request of Bloomberg News. “And the law is depriving a couple of having a marital relationship. It is so big-brother-like, so intrusive, so second-guessing of what a person is experiencing in a dementia state.”

“Donna’s daughters and Rayhons are now arguing over who should pay the nursing home bills.”

What a sad case. Consent in the medical world, as in matters of sex, is not always black and white.