Hard to know where to begin with a headline like this:
Set aside for a moment the classic journalistic mistake of confusing “sex” with “rape.” Here’s what this story is about:
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.
The court ruled that taping the incident with a hidden camera was a violation of the man’s Fourth Amendment rights (which protect against unreasonable search and seizure). I gotta wonder, if the nursing home staff suspected this man was raping his wife, couldn’t they have performed medical tests on her to determine as much? It seems like installing a hidden camera was not the smartest way to go about this.
Ok, now back to that problematic headline. (Other papers wrote even more appalling versions.) A person in a coma is unable to consent to sex, no matter what her marital status. The framing of this story only serves to reinforce the notion that non-consensual sex in the context of marriage is just sex, not rape. Did Phyllis Schlafly write this headline? The stats: 1.5 million American women are raped or sexually abused every year by an intimate partner. Establishing that husbands do not legally have a right to sex with their wives whenever and whenever they want it was one of feminism’s hard-won battles in the U.S. (one that’s ongoing in other parts of the world). In some ways, this article is a perfect example of why it can be so hard to get society to acknowledge that this situation rape: This woman no doubt consented to sex with her husband earlier in their relationship, but that’s no longer relevant. Now that she’s in a coma, she is unable to consent. This is why we fight so hard to keep information about rape victims’ previous sexual encounters out of the courtroom: Because consent on Monday does not mean it wasn’t rape on Tuesday.
This article also raised questions for me about whether spouses/families receive any kind of information or training about what kind of contact is appropriate with a family member who’s in a coma. Anyone know?
120 Comments
If the wife awakes, and decides that his husband should be pardoned, would that be a possible solution?
*Sigh.* One day, everything won’t be so sad. I have to believe this. There are so many people who are in comas or unable to care for themselves who are getting abused physically and specifically sexually in people’s care. This man’s defense was that the rape was a private matter. It didn’t get thrown out because of a claim that she had okayed it or that those are the sexual games they used to play together. He claimed that it was a private matter. The nursing home did not have a “coma sex consent” clause on record or they wouldn’t have called the police.
“On appeal, the state argued that Johnson hadn’t proven he had his wife’s permission to be in her room, and he certainly didn’t have permission to sexually assault her. The District 4 court rejected this argument as nonsensical because Johnson’s wife was unable to grant permission for anything.”
This is similar to the case a few weeks or a couple months back discussed here, I believe, about the woman who was raped by a taxi driver in California and they /couldn’t/ prosecute because she was passed out when she was raped…
“The court also rejected the state’s claim that Johnson’s visits were not consistent with historical notions of privacy when he used the room to have sexual intercourse with his comatose wife. The court noted that the argument relies on proof of an alleged illegal act that has not been properly admitted as evidence.”
Because they wouldn’t allow the evidence.
“Kelly [the husband's attorney] said that he didn’t think Johnson’s wife needed protection from her husband and that the state has never proven a sexual assault occurred, as the tape isn’t clear and consent remains an ambiguous issue.”
The tape wasn’t allowed to be judged clear or not. “Consent remains an ambiguous issue.” Spoken like a true rape apologist.
“If the wife awakes, and decides that his [sic] husband should be pardoned, would that be a possible solution?”
Exactly, Qwerty. Could somebody please wake her up? That would be a big help. We need to know if his crime should be pardoned.
I threw up in my mouth about ten times reading the rape apologies in this thread.
So let’s keep assuming consent in the absence of a victim’s contradiction. Keep this in mind next time the police find the raped, beaten body of a woman. Even if they can find the guy who did it, even with the evidence on tape, he can get off scot-free because the victim cannot defend herself and confirm that she did not consent.
The excuses will come from all directions. “Some women like rough anonymous sex. With strangers. In the woods. With duct tape over their mouths. In my personal relationships, I happen to be into erotic asphyxiation so it’s possible he accidentally choked her to death in the throes of sweet lovemaking. Which she probably would have been okay with.” “What about him? It’s unfair to ruin his life! We don’t know what happened so we should just trust that he as her husband/boyfriend/neighbor/boss/stalker/stranger had her best interests at heart. Because men never hurt women.”
I am absolutely fucking disgusted with the willful ignorance on this thread.
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This thread has made me go there. I shouldn’t read this stuff this late at night.
I am saying this as someone who was given a date rape drug and raped while unconscious, and woke up completely naked in a strange bed, with weird disjointed memories of the previous night, a massive headache, weird psychoactive dissociative feelings, and my motherfucking attacker hovering over me saying the vilest shit. Please do not ever call me a rape apologist. I have been on the very nasty side of what probably happened. I am a mild mannered vegetarian who stopped eating meat because I couldn’t stand to see fish die, but I still, three years later, have fantasies about bashing my attacker’s head in. Since we are assuming all sorts of nonsense about everyone because we disagree with their opinion, I wanted to get that out there before I started writing what will follow.
BUT, here is the argument that I see being made that is generating so much anger:
1) A rape probably occurred
2) The behavior, even if a rape did not occur, is extremely deviant and unappealing to a LOT of people
3) Despite the fact that 1) and 2) are true, it is perhaps not good to instantly convict this guy in our heads because
3a)We don’t know these people at all
3b)It is possible that there was some sort of prearranged consent. It is hardly assured, and it is pretty unlikely, and it is possible, so
3c)If this is the case, it is of course incumbent upon the husband to provide evidence of this consent.
Now, all of this is unlikely, because he probably would have provided this evidence very early during the pretrial period in an effort to get the charges completely dismissed, rather than attempting to use this procedural argument.
BUT, when discussing this more generally, it is possible for people to want to think about how this situation might affect them, and to what level they might be willing to give consent in a similar situation to this. To some, the response is “I actually wouldn’t mind that much.” To others, it is “this is the worst thing I’ve ever heard.”
In the end, though, we don’t know these people. We don’t know the situation they’re in, and prejudging based on a one page essay mostly focused on legal proceedings rather than evidence might end up being misguided. It probably won’t, but it might be.
In my area people can’t pre-consent to sex. It has to be possible to withdraw consent during the act or it’s rape. That’s why having sex with dead people is illegal, even if they gave consent before they died.
bittergradstudent,
I actually don’t have that much trouble with the argument as you framed it. But, I don’t think that’s actually what the “controversial” people were arguing. I got the impression that they were actually arguing, as opposed to the burden of proof being on the husband to prove that he had consent, that in absence of further proof either way, we should arrive at a non-guilty verdict. Which is, I believe, considerably different than what you’re suggesting…
And like I said above and like WonderBunny said, I just can’t imagine very many lawmakers would want to allow pre-consent for sex anyway (well except for maybe those who still think husbands should have an all-access pass to their wives’ bodies). Because I just don’t see pre-consent for sex being a healthy thing for /anyone/ -at the best unnecessary, at the worst definitely unhealthy.
I started to respond to some other comments, and then I read this post by Allie:
“In the past, I’ve had good discussions here, even if I disagreed with people. Apparently, this isn’t going to be one of those times. I’ve had my relationship with my partner questioned, been labeled a rape apologist, and a number of other things. I never once, ONCE said that rape was acceptable. But it isn’t rape if it isn’t rape, and in some cases, the picture isn’t so clear. Yeah, it makes things easier when it’s black and white, but the world is full of shades of gray. I’m sorry that so many of you fail to see that.
Anyway. I’m done. Pat yourselves on the back, because you’ve made it where I just don’t feel like discussing this issue any further. But, I still disagree with you.”
As soon as I read this, I realized it all applies to me too. So I’m out.
Ok, one more thing since I just saw another post:
“I got the impression that they were actually arguing, as opposed to the burden of proof being on the husband to prove that he had consent, that in absence of further proof either way, we should arrive at a non-guilty verdict.”
I’ve said a bunch of times that I think we do not have enough evidence from the article in question to condemn the guy. I have said they should try to find evidence either way; this includes the husband trying to present some. No one has said that we should assume with no further investigation that he has consent, just that we should not condemn him so quickly.
I suspect he argued the privacy issue in court because his lawyer told him he could get the case thrown out quickly that way, not necessarily because he didn’t have any other arguments as well.
And now I think I’m out, unless someone comes up with a point that is actually interesting and new and not just angry venting.
Wow, I am just so amazed and sickened to see so many people making excuses for a rapist. What is so complicated here? You can’t have sex with someone who is unconscious. That’s it, that’s all there is to it!
Allie, you say you aren’t a rape apologist, but you say that this wasn’t rape. So, um, what? This is CLEARLY rape. CLEARLY! And you are excusing it, so yeah, that makes you a rape apologist.
What do you and Terabithia MEAN when you say there isn’t enough evidence? There is a tape of him raping her. What more evidence could you possibly need?
Here is a nice discussion of the issue of consent:
http://blog.iblamethepatriarchy.com/2007/05/16/the-new-page-of-consent/
Check it out.
Terabithia,
But what I mean is,
What if he /can’t/ prove there was any sort of “consent”/agreement between him and his wife, etc. (The issue aside of whether someone should even /be able to/ grant consent ahead of time…)
/Obviously/, a court is not going to be able to prove that there never was a verbal agreement along those lines…
So what then? Most of us are saying unless he can prove there /was/ an explicit agreement, he should definitely be considered a rapist. You seem to be saying that unless the court can prove there /wasn’t/ an agreement of any sort (which once again, is /impossible/) that he /shouldn’t/ be convicted of rape… Am I wrong?
Terabithia, “angry venting” is a visceral response to a man raping a comatose woman and getting away with it. Having to articulate the reasons why it is rape (and this thread is loaded with excellent reasons, most of which you haven’t even taken the time to consider or respond to, because if you did, you would understand and admit that you are a rape apologist) is infuriating. It is not up to us to dazzle you with our arguments; the burden of proof is on you to show that you have sympathy for and a commitment to the woman who has been victimized. If you don’t, and you insist one more time that you are not sure she has been victimized, it is a waste of time communicating with you or considering you a feminist ally.
I just wanted to thank a.k.a. Ninapendamaishi for all the work you’ve done. WonderBunny: a great highlight post. Those who didn’t want to go crazy traveling to crazy town to teach, but nonetheless showed your disgust at this rape and the defense of the man, thank you! You all kept me sane.
“Exactly, Qwerty. Could somebody please wake her up?”
If you were being sarcastic, i think you’re being deliberately obtuse.
Annie M: “2) Does her husband hold her ‘durable power of attorney for health care’ aka is he her ‘legal’ voice of consent?”
I’m going to count to ten…
Now…how in GOD’S NAME did holding a “durable power of attorney for health care” get translated into “legal voice of consent”?
You have just got to explain this one to me, because there is no way in HELL, legally, morally, any way at ALL, that one person–any person–husband included, sister, mother, ANYONE–can give sexual consent for another.
No. Way.
I must have totally misunderstood you. This is what I thought you said,
“Would everyone stop arguing about whether it is rape or not if the wife woke up and told us it wasn’t rape?”
Did you say that?
I also heard, “possible solution” to mean a way to finish the debate on this board. I heard, “should be pardoned,” where pardon means he’s done something from which he would need a pardon to be freed.
I also heard you telling a joke, like you were Goddess and you were going, “You want me to wake her up and ask her so we can end this?” or “Let’s just wake her up and get this all straightened out.” So I was humorously agreeing with you.
Then I heard you say, “If pigs could fly, then would we know that pigs can fly?”
After that, I said to myself, Qwerty is probably trying to figure out if we’ll accept consent after if we won’t accept consent before. Are we firm about consent being during the act. Or do we believe that crimes against the state don’t matter if no one presses charges, which has been the case in more than one crime.
So you can see how you were confused by my response.
Alright, ladies! Time to go add a line in our wills….
Jesus Christ this is disgusting.
You can proselytize all you want about this but I am going to consider the side of the journalist and not necessarily the actors.
He was charged w/ a felony, meaning that in the State’s opinion, he raped his wife.
He and his family however, do not feel that he has necessarily done anything wrong.
The only FACT that stands between these two opinions is that sexual intercourse occurred between a man and his wife. Whether it was consensual or not or whether it is considered rape or not is not up to the writer to opine. At worst, the writer could have gotten away with writing that the man allegedly raped his wife. There is no way for any of us to know what was the state of this couple’s relationship – whether she would have felt it was rape or not. The state is acting on her behalf and if she does wake up and disagrees with this, she and/or her husband can bring a civil case against the state and/or the hospital. She could sue the newspapers for libel if they are not careful.
Andrea Dworkin wanted to weigh in:
“The society with police power behind it imposes both restrictions and obligations. It punishes forbidden behavior but it also punishes failures to comply with mandated behavior. Many laws about sex are laws demanding sexual compliance, especially from women. Compliance can occur behind closed doors, out of the public view; but it is not private at all–it is a social act in conformity with a social requirement;the compliance itself is a building block of the society as a whole. Breaking the law is widely construed to be antisocial; forbidden acts are said to hurt society as a whole; they are social, not private, from the point of view of the law. Intercourse has never been comprehended by law as a private act of personal freedom except in one limited sense: those who belong to men as chattel property or who are used by them as sexual objects (the modern equivalent of chattel property) can be encompassed in a man’s privacy such that they disappear altogether inside it. The state can manage a sudden and sensitive respect for privacy when it functions as a prison cell for a woman or a child or a slave or any civilly inferior person. A woman, for instance, inside a man’s privacy, will never be able to reach or invoke the law even if he is breaking it on her body. Privacy in sex means that a man has a right to shield himself from state scrutiny when sexually using civil inferiors.”
–Intercourse, pg. 148.
I don’t think I should be able to consent in advance to my husband putting his penis in my vagina while I am in a coma. I am going to research the succes rate on coma-rape cases.
If I find that people who have sex with their coma-tose spouses are typically found not guilty, I am very likely to start lobbying for legislation specifically banning sex with people who are in a coma in my state.
Consent is a fluid thing. Something I consent to today, I might not consent to tomorrow. And maybe, just maybe, someone who thought it was a good idea to let their spouse have sex with them while they are comatose changed their SILENCED mind after the first time the spouse started penetrating her.
Also, I suggest that people get an idea of what the likely punishment is for certain crimes before they start decrying how awful it is. Especially “statutory rape.” In my state it is called Criminal Sexual Abuse, and in certain situations it is only a class A misdemeanor. It is only punishable by up to a year in Jail. It isn’t even a felony, and the defendant can’t even go to Prison.
We’ve decided that minors can’t give consent to sex because we feel that they will be unduly influenced. I think it is appropriate to decide that comatose people aren’t capable of giving consent either. Because they aren’t.
I am totally not excusing what this guy did, but there is a bit of a gray area here.
No one would prosecute this guy for kissing his comatose wife or for curling up in bed next to her and snuggling with her (that’s even been dramatized on many movies to be a sweet scene).
But obviously she can’t give consent for those activities either. If a nursing home employee kissed me or fondled her then that would be sexual assault. Clearly it’s NOT sexual assault in the case of a husband, even though she’s just as unable to give consent to him.
I agree that sex seems way over the line, but the point is that there IS an arbitrary line – it’s not as simple as “she can’t give consent so touching her in any way is totally wrong.”