The headline doesn’t describe this well

Police Illegally Taped Nursing Home Sex, Wisconsin Court Rules

From Fox News/API Sept 11, 2008

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 constitutional 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 ruling means prosecutors cannot introduce the videotapes 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 attorney, Christopher Kelly, said his client would visit his 54-year-old wife every day, reading her the Bible and moving her arms and legs so her muscles wouldn’t atrophy.

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.

The couple married in 1988 and had no children, Kelly said.

Kelly said he believed prosecutors would be forced to drop the charges without the evidence on the tapes and thought the appeals court made “a pretty obvious call.”

Johnson’s wife was admitted to the nursing home after suffering a stroke. Court records say she was unable to speak or sit up, and nursing home staff members fed, cleaned and turned her. Prosecutors say she was comatose.

Johnson visited her frequently and sometimes would close the door to her room so they could have privacy as allowed by the nursing home. But staff members tipped off police, fearing she was in danger because, they suspected, he was having sex with her.

Police obtained a search warrant to videotape the room and installed the camera, which ran for three weeks. Johnson, who is free on bail, was charged based on that evidence.

Sauk County Circuit Judge Patrick Taggart tossed out the evidence last year, ruling it stemmed from an illegal search. Prosecutors appealed, arguing Johnson had a right to privacy when he visited his wife to care for her but not when he used the room for what they contend was illegal intercourse.

The appeals court affirmed Taggart’s ruling.

===============

“Fearing she was in danger”?

Illegal intercourse?

Was the sister being compassionate, or simply naive?

Was the husband being loving, or was he just a few steps away from necrophilia?

About Tom Allen

The Grey Geezer Dauntless defender of, um, something that needed dauntless defending. Dammit, I can't read this script without my glasses. Hey, you kids, get off my damn lawn!
This entry was posted in Sex news, Sexuality & Aging, Sexuality & Relationships and tagged . Bookmark the permalink.

22 Responses to The headline doesn’t describe this well

  1. Fuse says:

    “Fearing she was in danger”? Hell no.

    Illegal intercourse? Again No. Although the line gets burry here depending on who looks at it…

    Was the sister being compassionate, or simply naive? Compaasionate, and very understanding I think.

    Was the husband being loving, or was he just a few steps away from necrophilia?
    I would hope he was trying to help her in what some might look at as a poor way of doing that, but only he can know that. Personally I couldn’t have done that…

  2. gillette says:

    Wow…what an oddly interesting situation. Man…hm…

    I’m wondering how much everyone would judge him if he had an affair.

  3. allforher says:

    Tom, if you keep it up your going to lose your chastity cred and be labled as the guy that has an elderly sex fixation ;p

  4. Tom Allen says:

    I think that the ethical issue is one of consent. Can a person who is comatose consent to having sex? I’m sure that most people would argue “No.”

    That said, who has control over her? The state? The hospital? What rights does she have? And what rights does the husband have?

    And good question, Gillette. If he were found to be boinking someone else, would people be jumping all over him for thinking about himself, while his wife lay languishing in a coma?

    afh – I haven’t posted about chastity in months. Haven’t I lost that cred yet?
    Dang.

  5. Candice says:

    They are obviously in a loving relationship. Also, comatose people can often hear and know what is happening, even though they may not be able to communicate. I’d say he would be remiss if he did not show his affection for his wife. I assume he did not hurt her! I’d trust the siser’s opinion.

  6. allforher says:

    Tom, you have to believe that I had more intelligent things to say, but I had to call you out because I’m just a guy and guys do that.
    Sorry.
    LOL.
    sigh.

  7. MJ's slave says:

    Tom,
    I read this elsewhere and was thoroughly amazed that our local news hadn’t covered this story (Milwaukee area).

    I feel your comment:
    ” That said, who has control over her? The state? The hospital? What rights does she have? And what rights does the husband have? ”
    speaks to the heart of the issue. Makes me put “finish health care proxy w/MJ as decision maker” on this weekend’s to do list. When you think of a man sitting reading the bible to his comatose wife, i find it fairly hard to believe he was engaging in abuse by having sexual contact with her. Also, remembering all those who suffer strokes and are placed in skilled care facilities and “forgotten” because it is too painful for the family even further underscores this husband’s commitment to his spouse.

    Thanks for adding us to your links…nik

  8. Tom Allen says:

    afh – ::winks::
    No worries, mate. As it happens, though, I’ve been thinking recently on that very same subject. I have taken a bit of a detour with my writing, and I’m not sure where it’s headed right now.

    nik – I have mixed feelings on this, frankly. I haven’t sorted out the ethical implications, because I haven’t really thought about this kind of situation. I’ve only barely begun to think about the whole sex and aging issue, which was brought on in part by this bit of news from back in June.

    This news report really is incomplete; it’s quite possible that he really was simply having sex with her as simply a means of getting himself off – a very real “Real Doll,” if you will. To me, that sounds… distasteful, to say the least. But then I go back to Gillette’s question: Would it have been okay for him to take a lover while he’s waiting? WHat would her family say to that?

  9. Elle says:

    Without more information, it is indeed hard to judge. If they were in a close, loving relationship, then maybe that yes, he was being compassionate. How can we tell, we haven’t heard HIS side of the story, and it seems we won’t be hearing the wife’s side of the story for a while.

    I just find it somehow weird that a husband would be prosecuted for having sex with his wife.

    And yeah, if he was just screwing her to get off, well that is kinda weird. So I guess the question is, was he turned on by this, or was he just trying to provide the woman he loves with the lovely feelings of sex?

  10. Lady Julia says:

    From reading the article (quite interesting, by the way), and the comments offered by others, it seems that most think it comes down to what was going on inside the guy’s mind when he did this. How can we ever know, thus how can we prosecute someone and convict beyond all reasonable doubt for something that seems to come down to intent?

    It’s not something I would do, but I do wonder if she was aware at a deeper level and comforted by his touch.

    Tough call for sure.

    By they way – is 59 years old really “elderly sex”? I’ve dated a man that age and I can tell you there was nothing elderly about him 😉

  11. Many people use the word coma when describing the state a stroke victim gets into, but many recovered stroke victims will tell you that they are still cognizant of their surroundings, just utterly unable to get anything to work on their body in order to interact with the world. I don’t have enough information on her medical condition from this article to comment on whether that patient’s condition is actually a coma state or only one in which she isn’t able to interact actively with anyone.

    And in this instance it is very possible that the people involved here are coverng their asses…the doctors and nursing staff saying that the condition is worse than it is just so they don’t have to get caught in the legal questions of consent here in a very complex situation because frankly, he could have laid a woman who is prisoned in her own and wanting his intimacy and love.

    On the other hand, if this woman is indeed comatose, she’s unable to give consent and he should not be having sex with her even if she is his wife. He could hurt her and cause her infections having sex with her without consent.

    It seems to me that such legal questions are better handled other ways than the sister chose to handle this. Nursing homes can do all sorts of things with situations like this. Having the patient up, dressed and in the public areas where she can get stimulation from a busier environment can be called a form of Recreational Therapy. Lots of nursing homes do this when a family member’s behavior is questionable. Not giving the family member choice for such intimacies usually solves the situation without making such a stink that is humiliating to everyone in a very painful situation…It seems to me that the patient’s right to privacy has gone right out the door in all this after all, because we’re sitting here discussing her condition, her marriage, her husband’s sanity and her sex life. None of which she can comment on or clarify.

    The whole thing is just sad.

  12. selkie says:

    where the HELL is the confusion here?

    it is RAPE pure and simple! For god’s sake! Did she CONSENT? Did she AGREE to it? She is COMATOSE. I won’t comment on what she might or might not be feeling becuase the jury is out on how much awareness a person in a coma HAS – but in the sake of human decency, one would hopefully err on the side of caution! Regardless, she CANNOT give her consent through action, word or meaning! Therefore she is having NON-consenaul sex – ergo RAPE – and yes, husbands CAN rape their wives.

    There is an assumption i see coming up again and again in this discussuion – people excusing his SELFISH actions (let’s remind ourselves her e- she cannot FEEL or HEAR anything apparently – so WHERE is the gain to her in having sex) – that he is doing this “for” her.

    What do we KNOW about this man? OR their marriage? We do not know in fact whether his wfe was open to sex BEFORE the stroke. We do not know how they interacted in private nor what the issues were (if any) between them.

    What? he reads the Bible, therefore he is a “good” man – surely people are not so simplistic to believe THAT.

    and the sister…. how close is she to HER sister – another scenario of which we are unfamiliar and unaware – so how does she presume to speak for her sister.

    Regardless, the law should be able to protect this poor woman … and that means against sex when she doesn’t seek it, consent to it or in any way, means or form, indicate that she wants it.

    And frankly, I don’t give a rat’s ass WHAT his motivation was – the laws says that nonconsensual sex is BREAKING the law.

  13. sexywhispers says:

    Ok…I have to agree. I feel strongly that there is no consent and it is rape. I wonder about the sister… is it possible to be that stupid. Would I rather he have an affair? Ummm…yeah. Rather than continue to grope his unconscious wife. Uh huh….necrophilia? I have to admit…people scare me sometimes. BUT, I feel warm and fuzzy knowing that this man is out there trying to help his wife feel better. I am thinking that she is faking the coma to get away from sex with him!!
    ~~Dee

  14. Elizavetta says:

    The first thing that struck me about this story and people’s comments was the wackiness of the treatment of the consensuality issue here.

    If her brother came into the room, her “compassionate” sister, her child, her next door neighbor – anyone else but her husband – and had sex with her to “comfort” her, what do you think the judgment would be in any of those instances?

    As selkie said, what the hell is the confusion here? It’s this: This is a case of the underlying assumption of “husband as owner” of his wife’s sexual services.

    And as far as the assumption that a bible reading husband is to be assumed somehow more loving and more well-intentioned than one who may not be reading the good book before he fucks his comatose wife without her consent, well… no, I better not go there.

    But this from Greenwoman is what really did it for me:
    It seems to me that the patient’s right to privacy has gone right out the door in all this after all, because we’re sitting here discussing her condition, her marriage, her husband’s sanity and her sex life. None of which she can comment on or clarify.

    As in all investigations of rape, there is always the secondary rape of privacy during the investigation itself and in the media report of it.

    Looks like rape, smells like rape… probably is rape. Even though we may all like to make ourselves feel better by calling it by other names.

    Thinking about this makes my brain hurt.

  15. darklily says:

    Why does Prince Charming kissing Snow White come to mind. Why is that different? She didn’t give consent, did she? And they weren’t anywhere near being married.

    Not necessarily arguing either way…just throwing something in the mix. Love and sex and marriage and consent are complicated issues.

    I’m betting he could “pull the plug” (if she were on life support) on her and it would be legal. Isn’t that curious?

  16. Elle says:

    Going back to my previous comment, and what others wrote after, just wanted to add that I didn’t want to argue one way or another. Maybe it sounded like I was defending the husband, but the simple truth is, I don’t know the whole of the situation. Maybe he IS just a sicko raping his wife, and maybe he isn’t. I certainly don’t know. Like darklily, I was just throwing something into the mix.

    And the bible reading thing? Please, it means NOTHING.

  17. Patty says:

    Ummmmm….

  18. Cat says:

    What I find most curious is how quick we are to criminalize this. So far everyone has come away from the article with “well if he”, “well if she”, “well if the nursing home”, “well if the sister”…Seems like a lot of ifs to be on the prosecute the man right away train. Why is our instant assumption always to the worst kind of scenario? The husband has to be some strange character that wants to rape a comatose woman? From what I read there are a lot of details needed to form an opinion. And maybe I am that dumb but I find I want to resist the urge to judge this so cut and dried so quickly.

  19. Em says:

    I’m saying that’s just plain wrong. She’s in a coma she can’t agree to sex, he has no right to have it with her.

  20. Tom Allen says:

    I think that I misunderstood this report at first. I’ve been doing a web search on this, and I scanned over 50 other reports, almost all of them just like this, making me think that they all came off of the same wire service. A couple stories, however, did have a little (although not much) more detail.

    It appears that this woman had a stroke back in 2005 and has been in a home since that time. What wasn’t clear to me was her mental state, which, I think, has a bearing on the ethics of the situation.

    From what I can piece together, she may have never regained consciousness since her stroke, and it’s not clear if she has been able to indicate her feelings at all. This, to me, puts a different spin on the story and the question of non-consent. That means that while the husband has been visiting and moving her arms and legs, she has been unable to respond in any way. That is, in my opinion, different from someone who has suffered a stroke, but who is conscious and who can communicate by eye contact, expressions, etc.

    And it does lead to some interesting ethical questions, not the least of which is, as Darklily has pointed out, he can’t – or shouldn’t – have sex with her, but it’s okay for him to decide – should she be on life support – that they can “pull the plug” and allow her to die.

  21. Crushed says:

    There was a case in the UK a few years back where a coma victim- five years in to it in fact- got pregnant. A male nurse was charged.

    That seems clear cut.

    I would say it is rape, yes. But. but.

    Imagine you’ve ben married thirty years. It’s been a loving marriage. then she’s suddenly taken away from you.

    Only she’s not.

    She’s lieing there.

    Maybe he did read to her. Maybe he hoped that reading to her might make him his hear his voice and come back to him.
    But she didn’t.
    And there she lies, not moving. Alive, but dead. The woman he touched and loved and held close for thirty years.

    Rape, technically, yes.

    But if it were possible to wake her up and ASK her if she’d have minded the man she loved thirty years dealing with that huge frustration and hurt in what admittedly is a pretty messed up way, what do you think she’d have said?

    Just a thought…

  22. Your compassion is admirable Crushed. I think that such compassion for the husband is well placed…just as your clear awareness leads you to conclude that since Tom’s further research proves the woman never regained her ability to interact with the world shows that the husband’s behavior was indeed unethical is correct.

    I think this is really why so many nursing homes use compassionate control of family interactions and quiet conversations about what’s best for the patient. They understand all the emotional turmoil that’s involved for these families.

    I am sorry for all involved in the situation. *sighs..*

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