38 Trial Lawyer • Winter 2022 Nursing Home Sexual Abuse Continued from p 37 nursing home residents who were 60 years of age and older. In most situations, witnesses to the sexual abuse were facility residents.”6 If I have done the math right,7 there are approximately 8,446 instances of sexual elder abuse in nursing homes and resident care facilities in the U.S. annually (or slightly more than 23 every day), and we can expect that to at least double over the next 30 years. Sexual autonomy Since the majority of these claims revolve around resident-on-resident abuse, we should analyze the most common defense tactic. As we all know, such claims will be vigorously defended by the facility and every effort will be made to shove all such cases into arbitration and keep these kinds of claims out of the public eye. Raised in basically every resident-onresident abuse case I can recall, this defense has some basis in human nature. It is the sexual autonomy or sexual agency defense. Basically, she wanted it. Sometimes people with dementia who live in care facilities start new intimate relationships with other residents. Sandra Day O’Conner’s husband famously had a girlfriend in his memory care facility.8 This can be hard for the partner or family members as there is irreducible ethical diversity within our society around sexual values and mores. Most people who have dementia, especially in the later stages, live in the moment. They may not recall life-long values and customs. They may not recognize spouses, family or children. They may believe another resident is their spouse. When a relationship between residents is mutual and the families are aware and comfortable with what is happening, these relationships can bring love, affection and meaning to people living in an institution. This will be framed as a quality-of-life choice that should be supported and encouraged to give the resident control over their relationships and environment. The glaring problem, however, is people with dementia generally cannot consent to sexual activities, particularly not with new people. Most dementia patients experience a decrease in sexual drive, but some experience an increase, and can become sexually aggressive. Inappropriate Sexual Behavior (ISB) is a diagnosis sometimes used in such cases. It is defined as “a verbal or physical act of an explicit, or perceived, sexual nature, which is unacceptable within the social context in which it is carried out,” and “any vigorous sexual drive after the onset of dementia that interferes with normal activities of living or is pursued at inconvenient times and with unwi l l ing partners.”9 Because sexual behavior in the elderly is a complex question, every facility should develop clear institutional policies and practices of care, provide education for caregivers on how to discuss and document residents’ sexual preferences over time, and take advantage of ethics consultation services. Very few do any of these. Even fewer have a formalized system to assess a resident’s capacity to consent to sexual contact. Capacity for sexual consent does not have a universal set of criteria and is hotly debated. The most consistently endorsed criteria are: • Knowledge of relevant information, including risks and benefits. • Understanding or reasoning which is consistent with individual values. • Willingness of the consent, free from undue influence or coercion. Examples of important questions for a functional assessment of capacity for sexual consent posed by the ABA/APA Handbook framed by these three criteria include: “Does the individual know the nature of the sexual activity in which they are engaging? Does he or she know the risks of sexually transmitted diseases? Does the individual know how to tell if the partner desires the activity? Does she or he know appropriate times and places for particular sexual activities, and with whom they are engaging in the activity? Does the individual have the capacity for the reasoning process inherent to sexual consent, including an understanding of sexual options, consequences of sexual choices, and consistency with the individual’s values and preferences? And is the sexual choice being made in a manner that is free from undue influence or coercion, i.e., is it a voluntary choice?”This assessment should be documented in the resident’s chart. Even after using tools such as these to assess capacity to consent, staff must still carefully document and monitor the resident after sexual contact to ensure there are no signs of trauma, distress or other negative repercussions. Again, this should be found in the chart and almost never is. Why not? Understaffing, usually. Not enough people to do the job, much less write it all down. Bring the case These tools — from policies and competency criteria, to consent questions and family engagement —help staff and families differentiate appropriate from inappropriate or illegal sexual behavior. Whenever one person is behaving sexually with more than one other resident or is attempting to sexually engage staff, that is almost a prima facia case it was not mutual. Not every sexual exploitation case is clear cut. The evidence may be fleeting, the records a mess and policies non-existent, but the ability of facilities to assess capacity, assess consent and limit risks is Inapp r op r i a t e Se xua l Behavior (ISB) is a diagnosis sometimes used in such cases. It is defined as “a verbal or physical act of an explicit, or perceived, sexual nature...”
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