A recent study by the Pennsylvania Coalition Against Rape @PCARORG found that nearly 83 percent of victims of elder sexual abuse reside in a long term care setting. What’s worse is that the instances of elder sexual abuse are less likely to lead to a conviction. In today’s episode, nursing home abuse attorneys Rob Schenk and Will Smith discuss the plague of sex abuse in nursing homes and how to spot the signs.
Schenk: Hello out there and welcome back to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are your hosts for this episode. The topic today is a pretty distressing topic. It’s the topic of sex abuse, sex assault in nursing homes in Georgia and across the country.
Smith: And it’s something that has gained burgeoning interest by the public. CNN ran an article or an expose rather about a year ago, I think, last year, maybe 2017, about the prevalence of rape in the long-term care setting. And just recently, there was an issue with a woman who was to some degree comatose. I think there’s some disagreement on whether or not she was in a coma or she’s just…
Smith: …she has limited ability to communicate with the outside world. Nevertheless, she certainly isn’t able to signal consent, and it was discovered that she gave birth. So in order to do that, someone would have had to rape her. I mean she cannot give consent. It was a truly disturbing story, and I believe one of the nurses has been charged in that.
But it’s something that’s extremely prevalent. We’ve talked about it in the past. And one of the issues is sex in general – do nursing home residents still engage in sexual relations? They do. It doesn’t stop. On the human continuum, from the time that you become consensual until the time that you expire, sex is a human activity. So whether you’re 18 years old or 78 years old, it’s something that people still engage in. And it’s something that happens quite frequently, believe it or not, in the long-term care setting.
But the issue is when it becomes nonconsensual. And sexual assault occurs in the long-term care setting from a variety of different directions. It can be employees, it can be other residents or it can be visitors and family members.
Schenk: And trespassers.
Smith: And trespassers.
Schenk: And straight criminals that gain access.
Smith: That gain access to these facilities. And we were talking about somebody recently earlier this year about sexual offenders in nursing homes. And the question came up – do nursing homes have any sort of obligation to check and see if a potential resident is a sex offender.
Schenk: A potential resident.
Smith: Resident. So as far as employees, originally Georgia’s rule was that nursing homes would do a statewide background check based on somebody’s name. And then a law was passed that goes into effect this year, 2019, that nursing homes will do a nationwide FBI background check on everyone who works or owns a nursing home, so even owners of nursing homes and employees, looking for previous felony convictions and certainly sexual assault. And so that’s covered. But the question is what about the people who live there? What about a resident that has a history of sexual assault.
And remember that when we talk about sex offenders, whether you agree with the sympathy given to that list or not, it’s a pretty broad list. There can be individuals on there who are convicted of rape. There can be individuals on there that have statutory rape issues, none of which are acceptable, but it’s a broad spectrum. So for what we’re talking about, let’s imagine we’re talking about somebody that has been convicted of something like child molestation or rape, both of which are very concerning because in the issue of pedophiles, you’ve got children, people’s grandchildren, that come to nursing homes, so that can be disconcerting. And the issue of rape, you’ve got vulnerable individuals that may not be able to protect themselves.
So to what degree do nursing homes have to guard against that? Well currently there is no state or federal law which requires the nursing home to do that type of search on a resident. Oftentimes – now, now there are states that are changing that. I know that Ohio is passing a law to change that or has passed a law, New York is looking into it, because it’s a big issue. And it certainly would make sense that you need to do that. What should happen is that the individual should inform the nursing home or their parole officer or their community supervisor should inform the nursing home that they are a sex offender.
Now one of the issues is – and people can also, and this is a very smart thing to do, when you’re going to go to a nursing home, look at the sex offender registry and see where in relation to that nursing home are people located. It may show you somebody inside there.
One of the problems is one of the provisions of the sex offender list is that you can petition a superior court to be taken off the list if you’re confined to a long-term care setting. So you can have individuals who are no longer on the list because they’re in the nursing home. But in order to get into the nursing home, they’re still going to have to inform the nursing home.
So then the question is what duty does the nursing home owe other residents to inform them that a resident is on the sexual offender list? Well it’s basically going to be common law at this point. If they’ve got – so there’s no specific law, and because of that, you can’t say, “Well you guys didn’t follow this statute that says you have to inform us,” but what’s going to happen is if you’ve got an individual that commits an act of sexual assault and the nursing home knew or should have known that he had a prior, and I’m assuming gender on this that it’s usually men, not always men, but typically men, that he had a history of sexual assault and they didn’t take proper precautions to protect residents like monitoring him or providing some sort of security, then yeah, they could be liable for that.
Schenk: And so just to, I don’t know if we’re splitting hairs, but the idea that we go to common law with part of this is definitely with regard to if there has been an assault or some type of injury by the resident who has a history of propensity to commit such act versus the nursing home’s duty to inform prior to any incidents that there is a sex offender that is located there. And at this point, I feel like the law is sparse on that, and I would, as we sit here right now, if I had somebody call up with the fact pattern that we just found out that there is a sex offender at our nursing home and the nursing home, in Georgia, and the nursing home never told us, I would say look at the marketing materials. If they’re making a claim that this is a completely sex offender-free zone or making claims that are contrary to having a sex offender be a resident of that nursing home, then I would say there might not be a duty to inform, just in a case where there’s been no assault or no injury, the duty to inform all residents that there is, in fact, a sex offender there.
Smith: Yeah. And remember there are – there are some other really technical issues with a sex offender moving into a nursing home. Number one, does it violate the terms of their probation to begin with? If the nursing home is close to a school, if it’s close to a church, those are the kinds of issues that can affect that.
One of the things that is happening and it’s at least happening in Georgia is in Milledgeville, Georgia, there’s a new nursing home called Bostick Nursing Home and it’s primarily convicts and sex offenders.
Schenk: Yeah, we’d have to do – Gene, can you do a deep dive research and find the episode so we can link it to the show description? We talked about this – oh God, when was it? And the reason I remember is I think it’s because Milledgeville is where Baby Goo-Goo – what’s her name?
Smith: Honey Boo-Boo.
Schenk: Where Honey Boo-Boo is from.
Smith: Yeah, I do remember it was long enough ago that when we talked about it, it was just an idea. It was in the planning stage. I believe now they actually have brick and mortar.
Smith: And so certainly don’t put your loved one in Bostick Nursing Home because there’s a prison down there too, and what happens is they’re putting older inmates in there.
Schenk: Well I don’t want to say don’t, cast disparaging remarks about it – everybody requires care and dignity at that age.
Smith: Sure. Yeah.
Schenk: And I think it’s actually a good idea from a…
Smith: What is that?
Schenk: Oh, it’s your microphone.
Schenk: I think it’s a good idea. I mean like the prison population grows old as well.
Schenk: And I think if I remember correctly, this will be a model. The company that has designed and built to maintain this, if it works, then we have somewhat of an answer to a problem that we have in our prison system.
Smith: And I read that they expect it to bring in $16.7 million in revenue from CMS for Medicare and Medicaid.
Schenk: Oh wow.
Smith: So that will be interesting to see how that shakes out. But so the question is what do you do to a) prevent sexual assault in the long-term care setting and b) what do you do when you suspect that it has happened?
As far as preventing it, it’s like anything else. You can never prevent something 100 percent from happening. But do your research. It’s like with anything else that involves security in a nursing home, go check that place out. Go get on the ground. Go ask about security protocols. For example, is there a locked door in the front? If you can go to the nursing home and just walk right in, that’s probably not a good sign. That’s a bad idea for a lot of reasons, but in relation to potential sexual assault, that means that somebody from the street can just go in there and just pretend like they’re a family member and go into somebody’s room, and that’s dangerous. Because again, in some ways, and this is not meant in a condescending way, a lot of elderly individuals are similar in some aspects to children in that they can’t protect themselves. Their cognition is damaged by Alzheimer’s or dementia or other mental issues, and so they can’t protest. They can’t physically protect themselves and they’re easy targets. So make sure that there are security protocols in place.
Check on your loved one frequently. What’s their roommate situation? And like I said, you can also look on the sexual offender registry. Is somebody – now if they petition to be taken off, you’re not going to see them, but that’s a long process that doesn’t happen overnight. So run a check and see are there any felons around?
You can also ask the nursing home, “Hey, listen, out of curiosity, do you have any convicted felons as residents?” Now to what degree they have a duty to tell you, it never hurts to ask. They may not tell you.
But as far as b) what to do if you suspect that it’s happened, one of the most important things that need to be done in any situation where you have an outcry, and an outcry is when a victim of a sexual assault alerts individuals that it’s happened or you discover it, is preservation of evidence. At the Consumer Voice Conference last year, sexual assault was a big issue and we were talking with a nurse that brought up a very good point, and I never thought about this. She said that in a lot of circumstances, when there is a suspicion of sexual assault and they’re going to send somebody to the hospital so that a rape kit can be done, the nursing staff innocently will clean the individual up, will bathe them, will wash their clothes. And essentially what you’re doing is destroying all that evidence, all the DNA evidence that there may be.
So first and foremost remember that it’s a crime scene and their body is a crime scene. If you suspect that your loved one in a long-term care setting is the victim of any such assault, especially sexual, then you need to take them and their clothes or their sheets, whatever you can, immediately to the hospital. Don’t, “Hey Mom, we need to fix your hair. Ms. Johnson, let’s clean her up before she goes,” no, take her immediately.
Preservation of evidence is important because one of the biggest issues in sexual assault cases in the long-term care setting is that you have terrible witnesses, just to be brutally honest. If somebody has dementia, they don’t make the best witness. And I’ve mentioned before my past in nursing homes – we would have individuals accuse the staff of all manner of things, the whole “Ms. Johnson’s upset because she thinks the staff let all of her horses go.” And so when Ms. Johnson, who has been complaining about – clearly she’s imagining this, I’m not suggesting there’s an actual stable of horses, this is something from her childhood and she’s living in an alternate reality, so when you have somebody like that that mentions, “Oh, this man came and touched me,” you tend to be dismissive of it. And that’s terrible but it’s true. So you don’t have the best witnesses to begin with. And they may not even remember it happened.
So any physical evidence that you have is important. When you have a loved one, some of the signs can be – certainly physical signs are the areas of bruising or bleeding around certain areas, around the perineal area, the vagina, the penis or the anus or the mouth or the breast, areas that are sexualized, if there’s any indication there’s been a disruption with those physical areas.
Other things you can look for in this individual, has their behavior changed? In many ways, again, it’s like dealing with someone, a child that is maybe 2 or 3 years old, especially 2, they can’t necessarily verbalize that something’s happened, but you have to watch their behavior. So is your loved one more reclusive than they used to be? Have they stopped eating food like they used to? Are they shy to the touch? Do they seem scared especially around certain individuals? Because it can also happen with the staff – like I said, it can be other residents, it can be staff or it can be a third option, which are outside influences.
Schenk: Yeah, we’ve had on the podcast before, we had a few episodes dealing with news stories in different states, different nursing homes where somebody has climbed up a ladder to a second floor and sexually assaulted residents or even come in through a side door, even a front door in some instances, just people that are just criminals doing that type of thing.
Smith: Yeah. But it is unfortunately a very prevalent issue, and the issue itself is not just coming around. It’s the perception, it’s the understanding and the awareness of the issue itself. And I think in all honesty to be brutally frank, I think part of that issue is that people don’t comprehend that sex is still an aspect of senior citizen life. So the idea that somebody would take sexual advantage of your elderly loved one is not the first thing that you think of. You think about it with children, you think about it with college students, you think about it with adults, but I mean the insanity that somebody would do this to an elderly person, the reason we consider it just insane or unlikely, even though it’s not, is that we don’t sexualize the elderly, and that’s wrong because they certainly do.
I can tell you that sex happens frequently in nursing homes, and family members constantly get upset about it because I mean you can’t stop a nursing home resident engaging in sexual intercourse if they are consenting. So you can have – your mother could decide, “Hey, I’m going to have an affair in my ‘80s, even though my kids don’t want me to, with this other guy that’s across the hall from me.” And the nursing home staff, oftentimes the family member, they will come in and go, “We don’t want them hanging out anymore. You need to put a stop to this.” I can’t do that.
Schenk: They have a right to it.
Smith: Yeah, any more than I can go to somebody’s address and go, “Hey, stop whatever you’re doing right now.” I don’t have that type of authority. People need to remember they’re called residents because they live there. Now to the extent that cognition impairs consent…
Schenk: Yeah, and what Will is talking about is where there is consent between both parties, clearly.
Smith: Right, exactly, and that’s been an issue not only on resident-on-resident but residents and spouses. There was a – we talked about this, I can’t remember what state he was from.
Schenk: Oh yeah, it was Midwest.
Smith: Yeah, it was the Midwest. There was a Congressman or a Senator?
Schenk: He was some type of government official.
Smith: I believe he was a member of the U.S. Congress or not the state legislature, but he was brought up on charges because he was having sex with his wife who was in a nursing home, or those were the allegations anyways, and the jury acquitted him, finding that it wasn’t nonconsensual. But that happens too. To what extent can you stop – I mean I certainly recall on many occasions, there were individuals who were much younger, maybe in their mid-40s, that were in a nursing home for reasons for other than just…
Schenk: Cognitive impairment.
Smith: Yeah, or the deterioration of the body that comes with aging, maybe they had had an accident, and I distinctly remember the specific woman I’m thinking about, she was fairly young but had been in an accident and needed round-the-clock care so she was in the nursing home, but her husband would come up there and we’re pretty sure that they engaged in sexual activity and he would take her home sometimes. That’s their choice. There’s nothing that the nursing home is going to do to stop that.
Schenk: Yeah, there are so many issues revolving around sex, sex assault, sex abuse in nursing homes, and hopefully we provided at least a little bit of information for you that you maybe didn’t know in the beginning. But looks like that’s going to conclude this particular episode of the Nursing Home Abuse Podcast. There are two ways to consume each and every episode. The first way is to go to our website, which is NursingHomeAbusePodcast.com or on our YouTube, or you can check us out wherever you get your podcasts from. And new episodes every Monday morning. And with that, we will see you next time.
Smith: See you next time.