TORONTO - A question now before the Supreme Court of Canada as to whether a person can give advance consent for sex could have some unforeseen implications for people with dementia or other disabling brain injuries.
The court is expected to rule in the next few months on whether an Ottawa woman voluntarily choked into unconsciousness before sex with her long-time partner could legally pre-consent or was in effect sexually assaulted.
The case is ringing alarm bells among advocates for the elderly and raising concerns among those who care for them.
"What they're looking at is can you say when I become unconscious, as in this case, could I have pre-consented to sex?" said Jane Meadus, a lawyer at the Advocacy Centre for the Elderly in Toronto.
"But the broader implications are that I could consent today and say if I became incapable — I got dementia or I got in a coma or something — it's OK for my spouse to come and have sex with me. And is that pre-consent really a pre-consent and what are the implications for the people who are, for example, in long-term care?"
Meadus said that in Ontario, for instance, the Long-Term Care Homes Act requires nursing homes and other facilities to ensure residents' safety, but also to uphold their right to privacy, including their right to have sexual relations.
A husband visiting his wife with Alzheimer's in a nursing home may argue that his wife has always consented to sex and the couple has the right to continue being intimate, she said. But the memory-ravaging disease may mean she no longer even recognizes her husband.
"She may be somewhat fearful. She may no longer have the capacity to withdraw consent. She may just go along, but that doesn't mean that she is happy about it," said Meadus.
"Is that something on a public policy basis that we think is appropriate? ... That's the kind of thing that could happen if the Supreme Court said that this is OK."
Isabel Grant, a law professor at the University of British Columbia, agreed that the way the Supreme Court rules could open a Pandora's Box for women with any kind of mental disability that compromises their ability to consent to sex.
"And in the context of elderly individuals, if you have someone with advanced dementia, the issue might be what has she said beforehand to her sexual partner, that when she became incapable it was OK to have sex with her."
In a sense, she argued, that turns women into sexual objects once they become incapable: "You can sort of do whatever you want to me then because I'm not going to be able to change my mind."
"Are we going to treat that as consent in law?" asked Grant, adding that such a decision could effectively reverse many of the legal gains women have made in the last decade regarding sexual assault.
That would include a 1983 Criminal Code amendment that threw out the long-held legal precept that a husband could not rape his wife.
One of the risks in saying a woman who is now cognitively impaired has given prior consent is there's no way of knowing the scope of what that consent was or whether she would have changed her mind, said Grant.
"Consent is 'Do you want to have sex this time with this person?' And we can't imply that from the fact that you've had sex with him before. ... So I think it's a really dangerous precedent."
The notion of the elderly having sex at all, especially those living in long-term care homes, has long been a taboo topic — another example of don't ask, don't tell.
But the need for intimacy, including sexual intimacy, doesn't change with age or the onset of dementia, said Mary Schulz, director of education for the Alzheimer Society of Canada.
"Everything you and I need, love, want, hate and value is what a person with dementia loves, hates, needs, wants and values," she said. "So that need does not go away because someone has dementia. What complicates that need is the ability to make informed decisions about sexual behaviour as it does with all behaviour and to understand the consequences of those decisions."
Whether a resident is indeed capable of consenting to sex and appreciating its consequences is an issue many long-term care homes also are grappling with.
At Baycrest, a geriatric centre in Toronto, a committee is working on guidelines to help staff deal sensitively with the issue of sexual activity among long-term care residents that would both protect individuals' safety while providing an atmosphere that ensures their social and emotional needs are met.
Lauren Colla, a social worker at Baycrest's 472-bed nursing home, said intimacy can take many forms — from holding hands to kissing and to, yes, sexual intercourse.
"When spouses come in or partners come in, the privacy piece is often challenging because of the structure of the nursing home. The doors can't be locked," she said. "So that in itself makes it quite challenging to have true privacy for couples or people who are having relationships on the floor."
And staff have to assess sexual activity on a person-by-person basis, because people with dementia all function at different levels, Colla said. "Just because you have dementia, it doesn't mean that you're not able to consent to a certain thing."
That stance is echoed by Dr. Marcia Sokolowski, a clinical ethicist at Baycrest and chair of the sexual guidelines committee, who stressed that people in long-term care should not be held to a higher standard than the rest of society.
"Teenagers have sex, people enter into quick affairs. We're not making judgments about that. Number 1, we want to make sure we're not discriminating against the aged," she said. "We have to understand that persons are multifaceted."
Sokolowski said staff have to be vigilant about any non-verbal behavioural cues a resident with dementia may exhibit: "Does she look like she's enjoying this? Did she initiate? ... Does she seem irritable and distressed afterwards? Does she go towards him when he comes?
"If someone's at the point where you really think they can't express themselves ... the default would have to be their safety ... because you just don't have enough signs that could be read.
"And that's where I think one of the benefits in nursing homes and long-term care is — the staff can really get to know the residents in very nuanced ways."