Consent for Intimacy Among Persons With Neurocognitive Impairment

The right to bodily self-determination has a firm foothold in American jurisprudence and legislation. Since the early 20th century, courts have consistently upheld individuals' rights to govern their bodies, citing the constitutional right to privacy and importance of individual autonomy. After these decisions, the advance directive has become an essential way to express personal preferences after incapacity for decision-making, especially in end-of-life scenarios. Can sexual preferences survive cognitive incapacity as well? When individuals lose the capacity to voice sexual needs and preferences, there is no mechanism to protect sexual expression. Dementia's ability to render individuals legally incapable of consenting to sexual activity was the focus of the case of Iowa legislator Henry Rayhons. The state charged Mr. Rayhons with assault for alleged sexual interactions with his wife, who had Alzheimer's disease. The prosecution failed to prove its case. We propose a hypothetical sexual advance directive as a theoretical mechanism to assert sexual desire past incapacity, grounded in claims regarding the possible importance of sex for individuals with neurocognitive disorders. Forensic psychiatrists can play a unique role in the creation and implementation of such a tool.