Posted by: Ophelia | September 11, 2008

It’s perfectly legal except when it isn’t

“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.



  1. omg…

  2. From the looks of it, this isn’t saying him having sex with his comatose wife isn’t rape. It’s saying that the way the police went about getting evidence for the case was illegal.

    Not sure what I think about “expectation of privacy” while visting in a hospital room.

    And no, you don’t give up your right to say no when you get married. It’s disturbing that people actually think that you do.

  3. And no, you don’t give up your right to say no when you get married. It’s disturbing that people actually think that you do.

    The part about that statement that bothers me, is from what I’ve read from a lot of feminists…only the woman retains her right to say no.

    If the man says no, then he’s “controlling” her through “denial of affection”, and “doesn’t care about her ‘wants and needs’ “, and is therefore a misogynist bastard that should be divorced.

    I’d be curious to have that bit explained to me.

  4. You are correct that the ruling isn’t as to whether or not what he did was rape but that the police did not have the right to invade his privacy by placing those cameras in the room. It does lead one to wonder however, how much does his right to privacy whilst visiting his wife protect. Surely they couldn’t have posted an employee in the room at all times–that would have also violated his privacy in his visits. So then, does this mean that what he does in those visits is so too privileged? Not necessarily–but how can they obtain evidence of wrongdoing if the visits are privileged?

    I realize I was glib in the post but its more of a reaction to the underlying current of thought. Plus there’s the comment from the sister that just threw me.

  5. The hospital staff were concerned and they were proved right to be so.

    Seems like when I was in the hospital and family were there were always nurses coming in to check the IV and other things like that. If I was the hospital, my new policy to stop this from happening again, would be to have nurses come in every 15 minutes to do “medical checks”.

    Sadly, maybe every 15 minutes wouldn’t stop him, but then at least they’d have a witness to the act.

  6. Evidence #9543652 that our society hates women:

    Man rapes his comatose wife and all anyone (including the woman’s own sister!!!) is worried about is the invasion of HIS privacy!?!

    Fuck that! I feel VIOLENTly ill knowing that, in the society in which I live, a man’s right to privacy is more important than my (or any woman’s) right to my (her) own body.

  7. And no, you don’t give up your right to say no when you get married. It’s disturbing that people actually think that you do.

    The part about that statement that bothers me, is from what I’ve read from a lot of feminists…only the woman retains her right to say no.

    D, or shall I say ennui, this is a fallacy and you know it. The language you cite is neutral. I don’t believe I’ve ever heard any feminist state that a man does not have the right to say no to a wife, just as a wife has the right to say no to a husband. The concept is bodily integrity and autonomy, you do not suddenly give up your rights by saying I do. It is no one’s responsibility to explain away your preconceived notions.

  8. Sorry, I didn’t mean a “you” in a specific sense, I meant you to mean both the man and the woman still have the right to say no.

  9. No I got that Brad but “D”up there didn’t seem to–or rather chose not to and to attack the straw men of all those imaginary feminists that don’t believe men have the right to say no to sex as women do. Oye.

  10. I’d call him D-Tritus, as a play on the name Detritus, a troll from the Discworld series.

    Anyways, on topic, I think I heard that the sister claimed he was trying to wake her up. I think there’s better ways of doing that than with a penis.

  11. Do you think a comatose spouse can consent to, say, holding hands with or being kissed by their partner? Would you object to a partner doing these things?

    Can comatose people consent to surgical or other medical treatment and do you object to partners making these decisions?

    The line drawn around sex seems arbitrary to me. I don’t think an argument of bodily integrity and autonomy is sufficient to explain it.

  12. I don’t think a comatose spouse can consent to anything, that’s the nature of a coma. Also I find the comparison between intercourse and surgical procedures false. The two cannot be conflated, further, it presumes that all surgery is okay–perhaps it isn’t. Consent is a sticky issue when it cannot be given or manifested. How are we to know what the person would want since they can’t tell us, and since they can’t tell us should we just presume that everything we decide is okay? But stepping out of that complication, let’s pretend the person would want surgery/medical procedures done–those are to their benefit. How do they benefit from intercourse with their comatose body? Do you think she can tell if it’s her husband? How about I toss a little slippery slope at you–if consent is presumed, is it reserved only for some? How do we know she wouldn’t want to fuck an orderly or two or perhaps another more mobile patient? When does it become not okay if we simply presume consent unless otherwise stated?

  13. In this situation consent to medical or social actions is presumed, considered unnecessary or granted by proxy.

    The benefit from sex would be much the same as benefit from any other action that may be carried out during visitation – likely none for the comatose.

    Why wouldn’t consent be reserved only for some? Only surgeons may operate. Only certain family members can make decisions on the patient’s behalf. Orderlies and other patients have nothing to do with it.

    If the partner is allowed to have harmless social and physical contact with the comatose spouse, and to (have others) drug, cut and insert whatever medical tools into (her) – with whatever risks and possibly to no benefit, why does her ‘bodily integrity and autonomy’ prevent him having sex with her? (not a rhetorical question)

  14. Again, trying to conflate medical treatments as the same as general visitation procedure is pointless. Medical procedures aren’t regularly conducted if there is absolutely no benefit to the patient. They don’t start lopping off limbs here and there since the patient can’t feel it anyway–just cause. You’re trying to conflate procedures and behaviors that are intended to benefit the patient in some way with an action that isn’t and asking why the one that isn’t for the benefit of the patient isn’t alright. You’ve pretty much answered your own question.

    And you’re trying to reserve presumed consent for some. The thought process behind allowing a husband to reach sexual gratification with the body of his comatose wife is that she would likely consent–it’s a presumed right of marriage. At the same time, it highly depends on presuming that the woman would be okay with it. Without the benefit of her manifested consent, it’s a shot in the dark. Same thing really goes for medical decisions as well–I’ve seen cases where family members made medical decisions for someone who was at the time incapacitated and the person didn’t want the treatment and later sued the doctor for doing it. Best guesses aren’t always correct. Moreover, medical decisions are meant to help preserve and give the best quality and chance at life, they are often made in emergent situations and they must be made quickly–which is where presumed consent comes in.

    I’m not prepared to proclaim sexual desires as emergencies that must be handled immediately. Nor am I ready to place medical care and preservation of life on the same field as sexual gratification at the expense of another.

    Perhaps you’re approaching medical procedures as having the potential to gratify the patient’s family while not being of much use to the patient–that is possible. At the same time, the patient stands to get something, no matter how minor out of it, be it preservation of their life or the rectification of a medical problem. However–without manifested intent, doctors and families alike have no way of knowing if they made the right decision for the patient in question. So then, if we can’t know, and must make our best guess, how is it that sex with a comatose person is so harmless that even if the patient didn’t want it or wouldn’t have wanted it, it’s no big deal if a mistake in presuming consent was made?

    There’s the rub, there’s the problem.

  15. What that man did was clearly rape. If one is not conscious then you cannot consent to sex. A vow of marriage does not guarantee a man the right to have access to a woman’s body. The fact that his right to privacy trumped her right to autonomy over her body is disgusting.

  16. Okay – comparisons to medical treatment aside…
    Visitors of comatose patients are fulfilling their own social desires with no benefit to (at the expense of) the patients.
    Considering that you think comatose patients cannot consent to anything, where do you draw the line between what is and is not acceptable for visitors to do with/to them? Why tolerate anything that is not related to medical treatment?

  17. Here’s a good rule of thumb: If it can possibly be considered legally as battery, then it’s BAD. As for sex with the husband, let’s look at the definition of rape: SEX WITHOUT CONSENT. That’s exactly what that man did. Sugar coat it all you want, that man’s action is the word for word definition of rape, regardless of the reason or the status of husband. Kissing or holding hands without consent is not a crime on its own.

  18. It’s a matter of reasonableness. We both know there are varying levels of affection and varying levels of appropriate behavior. Further, some behavior requires the active participation of both parties to be effective. Why presume consent for these activities?
    Consent to sexual behavior is special. So special in fact that if a person is unable to appreciate the consequences of the act, or is in any way incapacitated, their consent may not be effective. Does it make sense to presume consent if the person cannot say yes or no? Compare this to a situation in which one of the parties is visibly drunk. Would it be okay to have sex with them if they passed out? Would it be okay if they had agreed to sex on previous occasions?

    Moving away from sex for a moment, would it be okay to take money from someone who could not explicitly give their consent? What about if they had given you money before?

    Its a matter of reasonableness. The answers to these questions aren’t difficult or counter intuitive.

    The line is reasonableness.

    Certain activities are socially fulfilling and enjoyable only when both parties participate. I wouldn’t call intercourse with a prone body love making or enjoyable for both parties.

    Is it reasonable to take money from someone who cannot tell you yes or no?

    Is it reasonable to use someone else’s body to masturbate when they cannot say yes or no?

    *I really enjoy how your phrasing indicates that you’re in disbelief that I don’t think comatose persons can consent–its sort of the nature of the coma to be unable to manifest consent/

  19. I think the court decision was right. I really don’t want police to be able to put cameras in hospital rooms.

    But yes, what he did was rape.

    Although the battery analogy doesn’t stand up well, because kissing someone is also battery. And most people would consider someone kissing a comatose spouse to be loving and sweet, rather than wrong.

  20. Thalia, the analogy was to discredit the analogy that a2 was using.

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