“MADISON, Wis. – Police who videotaped a man having sex with his comatose wife in her nursing home room violated his constitutional rights, an appeals court ruled Thursday.
David W. Johnson, 59, had an expectation to privacy when he visited his wife, a stroke victim, at Divine Savior Nursing Home in Portage, the District 4 Court of Appeals ruled. Therefore, police violated his Fourth Amendment rights against unreasonable searches when they installed a hidden video camera in the room, the court said.
“We are satisfied that Johnson’s expectation of privacy while visiting his wife in her nursing home room is one that society would recognize as reasonable,” the unanimous three-judge panel wrote.”
The woman’s sister is upset that prosecutors brought charges against him, Kelly said. “She believes her sister’s husband was merely expressing his love for his wife and was trying everything he could to bring her back to consciousness,” Kelly said. MSNBC
Having sex with someone who cannot give consent is somehow a protected right if you’re married to them. The notion that these actions are protected indicates a belief in the implied consent of marriage–you know the one, the one that says that your husband can’t rape you because once you say “I do” there’s no take backsies? I’m sorry but I don’t believe I exchange my right to say no with a marriage certificate, nor do I agree to lose my right to have my consent asked for–not presumed. If it cannot be obtained, no dice.
Hell, I love my fiance but I have no idea how I would feel about him having sex with me while I was in a coma and could not respond or necessarily feel anything. No wait, I can describe it…ill. There are many ways to show love that don’t require the reciprocity and participation that sex does in order to be mutually beneficial and satisfying. I want to say that the matter is sticky because is there any way to tell what the wife feels or would have felt were she able to communicate acceptance–and her family doesn’t seem to have any problem with the goings on. Further–our culture likes to desexualize those that are physically or mentally impaired. But I can’t shake the distinct feeling that the behavior was exploitative. I can’t shake the distinct flavor of entitlement present in the decision. Answer not clear, presume yes–sounds like rape to me. If I were unsure about consent, I would hedge my bets and put my money on ‘no’ to be safe.