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Can you consent to sex if you have dementia?

In a recent CBC article, Andrea Bellemare, reports on the research being conducted by Andria Bianchi, a PhD candidate in applied philosophy at the University of Waterloo, on sex, dementia and consent.

In the course of her research, Ms. Bianchi has developed three ways to determine consent for those suffering from dementia. These are:

  1. consider a person’s prior wishes and values in relation to their present decisions regarding sex;
  2. encourage autonomous decision-making from the person with dementia; and
  3. prioritize happiness or pleasure above typical forms of sexual consent in terms of how that consent is communicated.

Ms. Bianchi is not a lawyer and is not focusing on the legality of consent as it relates to people with dementia. The legal issue is significant however, and needs to be addressed within the context of the aging population and the corresponding increase in dementia, the fluctuating impact of dementia on capacity, and the current jurisprudence on consent. For example, it is interesting to consider whether the three ways to determine consent suggested above would amount to legal consent, particularly in light of the Supreme Court of Canada’s decision in R. v. J. A.,[1] where the court found that a person can only consent to sexual activity if they are conscious throughout that activity. This means that if a person becomes unconscious during sexual activity then they cannot legally consent even if they consented at an earlier time.

In an article titled “Sexuality in Long-Term Care”, published in the Advocacy Centre for the Elderly’s Summer 2009 Newsletter, Judith Wahl highlights some of the key issues surrounding consent, sexuality and capacity, and in particular the challenges with respect to these issues in long-term care facilities. Ms. Wahl poses the following questions, among others:

  1. As consent is required, what is the mental capacity to consent to sexual activity?
  2. Who determines this capacity?
  3. How is capacity determined?
  4. When does someone have the obligation to determine capacity for this purpose?
  5. Is there an obligation to determine capacity for sexuality in long-term care homes and why?
  6. Can a person living with dementia consent to intimate sexual activity?

None of these questions have simple answers and they need to be addressed as the population ages. Ms. Wahl notes that just because a person has dementia does not mean that person is mentally incapable for all purposes or at all times. These fluctuations in capacity will impact the analysis with respect to consent from a legal perspective.

Ms. Bianchi notes that it is important to balance a person’s need to have sex with protecting them from harm and sexual assault. She further notes that by “2030, 75 million people are expected to be diagnosed with dementia and that many of these people will be sexually active.” This highlights the importance of this issue going forward.

Ms. Bianchi’s article can be found at http://www.cbc.ca/news/canada/kitchener-waterloo/sex-dementia-consent-research-waterloo-andria-bianchi-1.4044539

Ms. Wahl’s article can be found at http://www.advocacycentreelderly.org/appimages/file/Sexuality%20in%20LTC.pdf

[1] [2011] 2 SCR 440.

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