The Right of Privacy and America's Aging Population

19 Pages Posted: 1 Feb 2009

See all articles by Kristine S. Knaplund

Kristine S. Knaplund

Pepperdine University - Rick J. Caruso School of Law

Date Written: January 29, 2009


Just like everyone else, elderly people need intimacy and physical contact, which has been established in various studies. However, certain legal issues arise when elderly people, especially those of diminished capacity, enter into relationships in which these needs for intimacy and physical contact are met. This article explores two critical issues facing the elderly in this type of situation: (1) the lack of personal freedom suffered by those who move into large assisted living facilities and nursing homes, and (2) the lack of social support for those who remain in their own homes. First, it discusses those in institutions, and contrasts the federal and state laws that attempt to secure personal privacy for the elderly with the actual practice in some facilities. In many cases, especially if the elderly person has some cognitive impairment, institutions assume that the person is incapable of consenting to physical contact, thus reversing traditional rape law. Next, it compares these restrictions with the virtual absence of any oversight of elderly in their own homes, and the almost conclusive presumption that a marriage is valid. The result in some cases is that the elderly are being taken advantage of by unscrupulous caregivers, even in states that have legislation attempting to protect them. Finally, it looks at innovative solutions to these problems, including education, new legislation, better living conditions for seniors, and a more assertive role for the judiciary.

Keywords: elderly, privacy, intimacy, diminished capacity, rights, freedom, assisted living, nursing home, personal, facility, cognitive impairment, consent, institution, caregiver, seniors

Suggested Citation

Knaplund, Kristine S., The Right of Privacy and America's Aging Population (January 29, 2009). Denver University Law Review, Vol. 86, No. 2, 2009, Pepperdine University Legal Studies Research Paper No. 2009/2, Available at SSRN:

Kristine S. Knaplund (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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