Update on 2015 Iowa Case, Raising Issue of “Consent” to Sexual Relations in Nursing Homes

October 10, 2016

In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer’s Disease. See here, here and here, for example. The charge of “sexual assault” was based on an Iowa statute that criminalized a sexual act “between persons who are not at the time cohabiting as husband and wife” if “the other person is suffering from a mental defect or incapacity which precludes giving consent.” See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial — where emotions were running high on all sides with family members, witnesses and attorneys — the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife “consented” to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.

The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife’s treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.

On September 16, 2016, the United States District Court for the Northern District of Iowa granted the prosecutor’s motion for summary judgment. The court stated it was treating the motion as “unresisted” because of untimely filings by counsel for Rayhons, but also concluded the belated proffer of “resistance” was without substantive merit.

In ruling on the prosecutor’s summary judgment motion, the court said:

Though a close call, Rayhons has pleaded sufficient facts. Though bare bones, the claim that his constitutional
rights were violated is plausible on its face. . . . Accepted as true, Rayhons’s allegation [in his petition] that Krisko “manufactured [the witness’s] words ….”allows the court to reasonably infer that Krisko is liable for the misconduct alleged. The allegations are not legal conclusions, but facts that support Rayhons’s claim. Accordingly, the court finds that Rayhons has pleaded sufficient facts to state a claim.

However, although the court found that Rayhons had alleged facts sufficient to state a claim, Krisko also argued the count against her was barred by the doctrine of absolute immunity for prosecutors. The court dismissed the count against Krisko, concluding that after her agent interviewed a key witness, she clearly believed it was appropriate to file charges, which is a distinctly prosecutorial function. In a footnote, the court distinguished a 2008 8th Circuit case, saying: “Unlike the facts at issue in McGhee [v. Pottawattamie County, Iowa, 547 F.3d 922, 933], Rayhons has offered no facts suggesting that Krisko coerced anybody or fabricated any evidence out of whole cloth.”

With the dismissal of the count alleging civil rights abuses, the federal court remanded the case to state court for further proceedings on the remaining counts.

For more on the civil suit, see:

Rayhons Files Lawsuit After 2015 Sexual Abuse Acquittal, by Mary Pieper at the Globe Gazette, published

Judge: Investigators Can Withhold Emails in Ex-Lawmaker’s Abuse Case, by KCCI Des Moines, published July 26, 2016