“Police illegally videotaped a Wisconsin man having sex with his wife while she was in a coma in her nursing home room, an appeals court ruled Thursday. David W. Johnson, 59, had an expectation to privacy when he visited his wife 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… The ruling means prosecutors cannot introduce the video tapes as evidence in their case against Johnson, who is charged with felony sexual assault for having intercourse with his wife without her consent at least three times in 2005. Johnson’s wife, Leah, was admitted to the nursing home after suffering a stroke, unable to speak or sit up. Nursing home staff members fed, cleaned and turned her, checking on her at least every two hours. Prosecutors say she was comatose. Johnson’s attorney Christopher Kelly said his client would visit the woman he married in 1988 every day, reading her the Bible and moving her arms and legs so her muscles wouldn’t atrophy. The woman’s sister, who is now her legal guardian, is upset that prosecutors brought charges against him, Kelly said.” — Chicago Tribune (US)

The appeals court offered a sensible opinion about the legality of videotaping inside Mrs. Johnson’s nursing home room. It would be hard pressed, however, to offer an opinion on the basic legality of Mr. Johnson shtupping his comatose wife. That’s a much thornier issue. On one hand, you could take the strict viewpoint that non-consensual sex is rape. It doesn’t matter whether the person initiating the act is a husband or a care provider. It doesn’t matter whether or not he has good intentions. Since a comatose person is unable to provide consent, says the strict view, to screw her is rape.

On the other hand, somehow this case doesn’t seem to conform to a strict interpretation of sexual consent. The husband appears to be well-intentioned. By all accounts he has been solicitous in visiting and caring for his wife. Nobody has accused him of having a “sleepy time fetish” or assaulting other comatose patients. Maybe having sex with his wife is a deep expression of his love, or of his desperation to find a way to communicate with her, or of a strange notion that it might actually rouse her from her coma. But the thing is, in the final analysis, she can’t consent, and no one can know if she would have consented… So it’s all very murky.

Perhaps this is the sort of dilemma the nursing home never should have turned over to the police. Did they ever confront Mr. Johnson about it? And meanwhile lawyers should busy themselves updating the standard language of a living will. If I am ever incapacitated, do I want a health-care proxy? Do I want to be maintained on life support systems? Do I want my spouse to fuck me even though I’m a vegetable?

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