Freedom of Sexual Expression for Elderly and Disabled Adults

by Shannon Laymon-Pecoraro, Esq.

Over the last year, the topic of sexuality in elderly or disabled adults has become an increasingly popular topic of conversation among advocates and service providers. Families face conflicts when they need to balance the happiness of their loved one with personal feelings of what is socially or morally appropriate. On the other hand, facilities are concerned with potential liability. And, while there is no one size fits all solution, understanding why there is a concern and looking at solutions that have worked helps.

The primary issue surrounding sex in elderly or disabled adult populations is whether the individual has the capacity to consent to the act. Upon reaching the age of 18, there is a presumption that an individual has obtained the requisite capacity to consent, or not consent. In Virginia, incapacity is defined under the Guardianship, Criminal, and Adult Protective Services code sections in various manners. The underlying commonality, however, is that to have capacity to consent to a particular act, the individual must understand what they are doing and the consequences of the act. What this means is that, although someone may not have capacity to manage their finances or provide for their own daily care, they may have the capacity to vote, execute estate-planning documents, or engage in sexual acts.

In 1995, the Hebrew Home at Riverdale in New York caused great controversy when they adopted a policy promoting sexual expression for its residents. Although the policy has been amended twice over the last 20 years, the basic premise is that persons, regardless of age or disability, have a right to autonomy and privacy. These rights further extend to a right to engage in sexual activity, so long as the participants can consent via affirmative word or acts. The policy does, however, recognize that a diagnosis of Alzheimer’s disease or dementia will require a more thorough assessment to confirm the ability to consent and ensure safety.

Some advocates promoting freedom of sexual expression have gone as far as to indicate that a “Sexual Power of Attorney” should be developed. From a legal standpoint, the ability to consent to sexual acts may been seen as a decision so personal an agent would not be able to make the decision absent a clear expression of the principal’s desires related to sexual freedom.

The important take away is that they are concerns that must be assessed, but there are ways to encourage support of a person’s individual decision. And, because a fiduciary is tasked with carrying out the desires of the individual for whom they act, it is important to understand what acts that person has the ability to consent and what, if any, express provisions they have made.

Kit Kat

Ask Kit Kat – Tigers Increasing

Hook Law Center:  Kit Kat, are wild tigers really increasing for the first time in one hundred years?

Kit Kat: Yes, I am happy to report that they are. The number of wild tigers currently is close to 3,900 due to improved protection and conservation efforts. It’s kind of an uneven picture, however. Tigers are decreasing in some areas like Cambodia due to poaching, deforestation and development—their three greatest threats. However, in India and Russia, it is the reverse. They are actually increasing there. Overall, since 2010, the number of wild tigers has grown from 3,200 to the current number of 3,890. There definitely is an upward trend, though accurate counting of tigers is not really precise. Some countries like Indonesia and Malaysia really have not conducted systematic counts, so their numbers are actually based on the best available knowledge.

Progress is being made largely as a result of the Global Tiger Summit which was held in 2010. At that summit, 13 countries with tiger populations promised to double the number of wild tigers by 2022 with a goal of 6,000. According to Ginette Hemley, senior vice president of wildlife conservation for the World Wildlife Fund (WWF), ‘The countries where we’re seeing high-level commitment—Russia, India, Nepal, and Bhutan—are the ones where we’ve seen the biggest progress.’

Poaching poses the greatest threat to this goal. There still is a demand for tiger products like rugs, tiger-bone wine, and medicines, especially in China. In China, there are actually tiger farms where tigers are harvested to produce the aforementioned items. One of the goals of the WWF and 23 non-governmental agencies is to reduce this demand and channel it to other things. Hemley says, they “are working to identify the consumers of tiger products and learn what can be done to change their behavior.” She says progress is being made, but there is still more to be done. It’s reassuring to know that the trend for saving more of these beautiful creatures is at least going in the right direction.


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