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
My problem with the situation isn’t so much with the tape being thrown out as evidence. If the warrant was improperly obtained or the police over stepped the limits of the warrant, then that’s an issue for the courts to decide.
My main concern is that there is a whole lot of people who believe that the act of getting married implies a state of sexual consent. I think that the husband sincerely believed that he was not doing anything wrong, that he was showing his wife his love.
I don’t know why it’s so hard to understand that sex without consent is rape. Even if you’re married. With the wife in a coma, I don’t see how this could be anything but rape.
“but without anything like that you’re talking about sending a man to jail for something that very likely isn’t hurting anyone.”
Also back to this, what is the alternative?
The alternative is that he could have known the law, and not had sex with an unconscious person.
Why is that at all hard? Why would that be at all awful? Are our expectations for men really that low?
Most of the time someone drives drunk no one gets hurt. But sometimes someone gets /very/ hurt. And driving drunk is hardly necessarily. So it’s illegal -d’oi!
i 100% agree that a woman in a coma cannot consent to sex. in fact i don’t understand any sort of debate on this issue.
regardless, in ohio, it’s *legal* for a man to have “sex” with his comatose wife. or to drug his wife and rape her. the laws were changed to criminalize most forms of marital rape, but not all, and comas are one of those exceptions.
which brings me back to the point i made on a previous post: the laws are not there to protect womyn. they are there to uphold the status quo.
feminist love, and disgust in response to this case,
jen
People are really bending over backward to try to excuse what this guy did. Maybe they had previously agreed to “sleep sex”? Well, why stop with that assumption? Let’s assume that they had previously agreed to all sorts of other sexual activities too, like BDSM, swinging, and perhaps a little scat. So if her husband ties her up, chokes her, beats her, shits on her, and has other people have sex with her, we should all just throw our hands up and say, “Well, we don’t know what she would have wanted.” How about instead of excusing rape, we stop assuming automatic consent and start respecting bodily autonomy and integrity. And for everyone saying there are blurry lines – err on the side of caution and consent!
And what is this crap about the woman possibly waking up and being upset that her husband is in jail and then slipping back into a coma? Maybe she might wake up and find out her husband was RAPING her and then slip back into a coma (or worse). Stop excusing rape. It is disgusting and it has no place on a feminist site.
I don’t think that a married person has a right to rape their comatose spouse.
But, what about having sex with your spouse while drunk? You can’t give consent while drunk, so isn’t it rape?
Well of course it is, Femgineer.
Sarcasm aside, I suppose I’ll have to include this in my living will somehow—I’d be very traumatized to wake up and find my husband had been thrown in jail for something I had no problem with.
Long post, but I’m at work and trying to reply to everyone.
SarahMC: I don’t see anyone saying this is a man’s right. I see people saying
they wouldn’t necessarily classify it as rape without further information. That
information is not likely to available to any of us. I also think there are
plenty of men that would give their partners permission to have sex with them
should they be incapacitated.
puckalish: I didn’t say they did have a previous discussion. I said they may
have, and that’s something that we likely would never find out. Also, you know,
most people didn’t even have discussions about life support until the whole
Terri Schiavo thing, so perhaps this is another one of those wake-up calls. I
know if I was incapacitated, I’d rather have my partner playing with me than
with other people if it’s likely I’ll come out of it. Granted, we’ve had that
discussion too.
ShelbyWoo: I think death is a bit more violating than rape. But, perhaps that’s
just me. I didn’t say that this man did or did not have his wife’s consent
prior to her falling into a coma. I said there’s not enough evidence to jump to
any conclusion, including all the ones you’re also making about her health,
safety, his motivations, etc. The fact of the matter is that nobody knows what
the two had discussed prior to this development, and I’d imagine she didn’t put something like this in a
living will.
FrumiousB: I disagree. My statement reflects that my partner and I have given
consent to each other to do pretty much whatever, and I’d imagine most couples
have similar relationships. I do not feel that any person is in a perpetual
state of consent, man or woman, but I do think that people in relationships who
are sexually active with one another likely have some degree of implied consent
and trust between the two of them. If you don’t, well, then we’re both speaking
from our own experiences, and I don’t see how either of us is more right than
the other.
SarahMC: I’m not one of the people who considers a woman to be the property of
her husband (or vice versa). But, I suppose if you just want to dismiss any discussion on the
issue in favor of your own views, this is probably a good statement to make. But,
it’s not accurate.
kaylagrrl: Perhaps, but it’d be really weird to be swinging with a comatose
patient. Creepy.
Halo: I think the best course of action would be NOT to engage in such things.
But, whether or not it’s rape depends on the situation and the circumstances,
and apparently the commenters here are very divided. But, if the woman had
purchased a car the day before, and was now in a coma, she’d likely still be
responsible for the car payments and she’d already agreed to the terms. Is that
the same as giving pre-consent (or whatever you’d call it) to one’s partner, so
that all sex stuff is acceptable regardless of the situation? I don’t know.
Yeah, I’m a man and I want to weight in. I think it’s ridiculous for you to assume that men want to be used as objects just because some of us do that same thing to women. Most of us are disgusted by the objectification many men subject women to… and would not “love [that] idea.” I certainly wouldn’t…
And, this is not just for you, but I’ve heard something along these lines plenty of times in relation to this article:
As if those are the only options… as if us guys have to get pussy or we’ll melt like the wicked witch of the west… I mean, really… I would hope that if I were in a coma, my SO wouldn’t start to see me as a real doll, okay? I’d hope that, rather, s/he would try to maintain some happiness, be there to talk to me and hold my hand, advocate for me and [hopefully] be there when i wake up or know when to let go.
I mean, come on… screwing an unconscious person, whether due to a stroke or drugs or any other reason, is about the actor’s pleasure, not about the unconscious person’s pleasure… and to pretend otherwise is ridiculous.
Also, there’s a really great point that sex, particularly penetrative sex, can hurt… but if one partner is not conscious, there’s no way of knowing if any harm is being done. Gosh, wouldn’t it suck to be in a coma and wake up with internal injuries or pain resulting from contact you weren’t even around to enjoy? I would be pretty pissed off…
Also, I don’t think this guy belongs in jail… He ought to be there for his wife when she wakes up… but he needs to be made clear on how his actions were inappropriate and even violent (in terms of denying the agency of his wife), given some kind of treatment for his grief and perhaps given some kind of community service that would help him understand the harm that non-consensual sex can cause. I’m open to other ideas, too, but what he did was not right by any understanding I can muster.
Terabithia. It sounds like you’re so used to being used sexually that you don’t even feel like you have boundaries. I can’t imagine sleeping through sex. Do you have any sense of your body being your own, or has it been invaded so many times that you can’t draw any lines? If you aren’t experiencing any pleasure from a sexual experience, even experiencing the pleasure of your partner, then why are you allowing sex? Are you your boyfriend’s sexual slave, and doesn’t it bother you that you are an object to fuck to him, whether you are conscious or not? I feel bad for you, being sore in the morning and not having any of the pleasure. Your body is your own, whether you love your boyfriend or not. You can’t give someone nonconsensual access to you; it’s an impossibility. Talk about passive. Your boyfriend is a corpse-fucker. Wake up! Say no! I would have more sympathy for you, but you want a comatose woman to continue to be raped because poor rapist! He might have a deal!
“Honey, mind if I bypass your sass and go straight to that ass?”
“Sure, fuck me in the hospital. Fuck me in the coffin. I don’t care! I am not a person!”
Let’s say the husband has an STD and she hadn’t been having sex with him because of it. Now that she is in a coma, he has unfettered access to pass it on. Who are YOU to decide for this comatose woman whether she has a means of preventing her husband from having sex with her when she cannot consent?
Sounds like Andrea Dworkin is necessary reading around here. It’s so appropriate that this comes up, because I’m almost done with “Intercourse.”
I am just flabbergasted at how lack of consent doesn’t flutter any eyelashes with some people. It’s rape. Shouldn’t even have to argue this. And women here and elsewhere are defending marital rape. That’s what we’re trained to do, I guess, reinforce the privilege.
Seriously, Terabithia. Do some battling for yourself; let the rapists defend themselves.
manifestadestiny: Wow, that’s low. So disagreeing with your exact views means we’ve been “used” and are defending rapists? Right.
So before each sexual act, do you sign consent forms in triplicate?
Allie,
I won’t respond to your consent form commment, b/c I think that’s trite and not addressing the issue and you know it.
I also think manifestadestiny used some harsh language. I will say this though: I don’t have sex if I’m not enjoying it. I definitely don’t have sex if I’m experiencing more pain than pleasure. Most men can say that. Plenty of women can say that.
Now can you say that about yourself? (I think that’s more what manifestadestiny was getting at, that that’s a reasonable thing for a woman to expect, and that some of your prior posts left some doubt as to whether /you/ expect that…)
Its ridiculous that my comments about a hypothetical situation apparently require me to defend my own situation, but I guess I can’ just leave these comments standing without any response, so here goes:
>Terabithia. It sounds like you’re so used to being used sexually that you don’t even feel like you have boundaries. I can’t imagine sleeping through sex. Do you have any sense of your body being your own, or has it been invaded so many times that you can’t draw any lines?
My goodness. And you people are accusing me of making assumptions about other people!
For the record, I have only ever had sex with one person, I waited until we’d been together for months, and we moved along very slowly with everything, and I was 21 at the time. He was very good about respecting my boundaries and my limits and he still is. Being “used” doesn’t even enter into the situation. I like cuddling in my sleep. If my boyfriend is asleep and I cuddle up next to him, am I “using” him? You’re being ridiculous.
And since it seems to be upsetting people, I’ll also say that I have talked to a doctor about the soreness with sex issue, and changing my birth control prescription has helped quite a bit. Because of this issue, we make sure to always do lots of foreplay and stuff so I am turned on enough, and to use lubricant. I actually wish I could have sex a little more spontaneously sometimes– but it isn’t very comfortable without extra lube, so we don’t do it. My boyfriend would never pressure me to do something I didn’t want to do.
>I feel bad for you, being sore in the morning and not having any of the pleasure.
You must have misread something because I specifically said that that is why we DON’T have sleep-sex.
>So before each sexual act, do you sign consent forms in triplicate?
Seriously. Some people can’t seem to deal with grey, everything must be black and white.
ALL I am saying here is that we don’t have enough information to send this guy to jail. This situation could definitely go either way and without more information, there is lots of reasonable doubt as to whether he has done anything seriously wrong. Our legal system is based on the idea that its better to let 10 guilty people go free than wrongly convict one innocent person. This guy might be a sleazeball but so far I see no proof of it. Granted, I don’t know anything more about this case than that one article, so I freely admit I might be completely wrong about this particular case. But based on the information given, I don’t think we know enough to judge one way or the other.
Attacking me personally because I said we should hold off judgement IS pretty low, but if it makes you feel better have fun. You know nothing about me, and your comments show that.
>But, if the woman had
purchased a car the day before, and was now in a coma, she’d likely still be
responsible for the car payments and she’d already agreed to the terms.
How DOES that work? I’d imagine it depends how likely she is to come out of the coma, but I never thought about something like that. I guess your next of kin would have to figure it out with the car company, right?
Ninapendamaishi: My point is that I don’t require my partner to ask me each and every time whether or not I want to engage in some sort of sexual activity before she does anything to me, and she doesn’t require me to ask her. Whether this involves activities while we’re awake or one of us is asleep, it doesn’t matter. We’ve discussed this and know where each of us stands.
Since it seems there are at least a few others here with similar relationships and consent arrangements, and it’s something that we did long before reading about a situation like the topic of the post, I don’t find it unreasonable to expect that there are many other couples who have similar arrangements. Because of that, in the absence of additional information about this couple’s activities, I don’t feel that labeling him a rapist and throwing him in jail is warranted. I think the situation is not black and white.
Whether or not *I* want to engage in sexual activities with a comatose person is entirely different. I don’t want to because I think it’d be weird, and I think it’d be like having sex with a dead person who just happened to be warm. But, a lot of people do things I wouldn’t do, and that’s not a place where I feel I’m entitled to judge them.
That said, if my honey wanted to sex me up while I was in a coma, she has my full permission to do so. I’m consenting to it, even though it hasn’t yet (and hopefully never will) happen. Since we can’t say what has been discussed between the man and the woman in the story prior to her coma, I’m not so quick to label him a rapist.
Terabithia: People (or their estates) are still responsible for prior obligations even if they’ve died. That’s something that normally gets worked out with lawyers, wills, lawsuits, etc. But, unless the creditor decides a debt can just “go away”, it doesn’t.
If you are in a relationship where you DO require your partner to get a fully sober and awake yes before each and every touch, then you certainly have a right to expect your partner not to touch you if you’re in a coma, and your partner should know that boundary.
But a lot of us are in relationships where we are ok with a certain level of sexual activity without explicit permission for each act, and we have different boundaries. For instance, I’ve never had anal sex and I don’t want to, so if my boyfriend started trying that without asking me, whether I was awake or asleep, I’d be pissed. But he knows that and he would never do that. I certainly don’t mind if he kisses or gropes me without asking, or while I’m drunk, or while I’m asleep, and he knows that too. Only the people involved know what their agreement is, although cases like this show that maybe this is another thing, like DNR orders, that needs to be put in writing before its too late…
“Sometimes my boyfriend humps me or goes down on me while I’m asleep. Sometimes I wake up but more often he asks me in the morning if I remember it and I don’t. It doesn’t bother me. I’ve also told him I don’t want him actually having intercourse with me while I’m asleep, mainly because I get sore most of the time from sex and I think I would wake up being sore from it.”
I’m responding to this, your quote. I am asking about your boundaries because it doesn’t bother you that your boyfriend has sex with you without you being awake. You don’t want to judge someone as being a rapist because you don’t have those boundaries and you think that other women might not have those boundaries either. Sex without conscious consent? Meh. It gets to the heart of your argument, and is the reason I am responding to you personally.
Allie, I am awake and alive. I give enthusiastic consent when I give it, and my husband is not allowed to objectify me because I have…what’s the word? Oh, agency.
Okay, here’s the story: a woman’s husband is imposing nonconsensual sex (rape) on her in a home. Now here’s your argument: “So before each sexual act, do you sign consent forms in triplicate?”. Ha, ha. That’s funny because it is ludicrous that a woman be able to consent to sex. No, wait. It’s ludicrous that a woman be conscious in order to consent to sex. That’s the argument of a male needing protection from rape prosecution or a woman who believes that sex-positivism means that all sex is positive.
There are actual victims in this world. There are victims and there are agressors. You want us to wait for the woman to wake up and decide she’s been victimized before we prosecute. We should also have the luxury of raising the dead and asking them whether they feel they have been victized before we prosecute for murder. Is rape a crime? Should it be prosecuted?
>I am asking about your boundaries because it doesn’t bother you that your boyfriend has sex with you without you being awake.
Again, I specifically said he does NOT do this because I think it would probably make me sore. Unless you’re counting other foreplay-type acts as sex, in which case, no, it does not bother me. We have a very close trusting relationship and for us its like cuddling in our sleep. If you don’t want to do that, that’s great, but its ridiculous for you to tell me I”m not consenting to something that I am clearly saying I am perfectly happy with. Maybe I”m oversharing a little for an internet forum, but it seems relevant to point out that people can have very happy healthy trusting relationships that involve sexiness happening at night when one or both partners might be asleep or very groggy. I’d be horrified if, for example, I got very drunk and had sex with my boyfriend and he was somehow prosecuted for rape because technically I wasn’t sober enough to give consent. Now, if he actually did force me to do something I didn’t want to do, obviously I would want the law to recognize it as a crime. I am not at all defending marital rape. But as you can see from the comments on other sites and even the commenters here who are brave enough to risk getting flamed, there are lots of people who are in relationships where they have consensual sex when they are not fully sober or conscious. If they are happy with that, they aren’t victims and no crime has been committed.
Allie and Terabithia:
You’re right that the situation (may) not be black and white. Which is why the law (in most states, I guess, especially the more liberal states) errs on the side of protecting the potential victim. What’s so bad about that?
Again, I ask you: what’s so important about getting one’s rocks off that you (male or female) should not err on the side of protecting a potential victim and restrain yourself?
Also Allie and Terabithia, maybe you should google the term “affirmative consent” and learn some more about that concept. It does not always mean a very explicit verbal conversation has to be had everytime sex is had -consent can also be physical. But either way it can’t happen with a comatose person. They’re not an active participant in any way in that case.
Honestly now, do you honestly think the wife ever anticipated a situation like this and honestly anticipated her husband would have sex with her in a situation like this? Because I honestly think that’s pretty unlikely.
“If my boyfriend is asleep and I cuddle up next to him, am I “using” him? You’re being ridiculous.”
For /most people/, sex is a more intimate activity than cuddling. However, there are instances (like with people who have been abused, etc.) when cuddling is a sensitive activity. I’ve noticed sleeping people can often do things like “actively cuddle”. Certainly I would be hesitant to cuddle with anyone if it would require a great deal of work manipulating their body while they were asleep.
“And since it seems to be upsetting people, I’ll also say that I have talked to a doctor about the soreness with sex issue, and changing my birth control prescription has helped quite a bit. Because of this issue, we make sure to always do lots of foreplay and stuff so I am turned on enough, and to use lubricant. ”
Unfortunately, modern medicine is a pretty male-dominated field and is not always well-oriented to dealing with problems like this. Have you considered that there may be something psychological at play as well?
http://www.scarleteen.com/article/pink/from_ow_to_wow_demystifying_painful_intercourse
I’m sure I’m treading on delicate ground now, but I’ll just mention that I /have/ heard of people who experienced pain with a first partner or two, and then with a later one did not, and wound up just concluding they “clicked” chemically better with the later person, or something…
Look. I have sympathy for the situation. Really, I mean, it’s fucking sad in so many ways. But part of the reason why we have laws is to provide some minimum standards. Are the laws perfect? No.
I mean would those people who are OK with this, have objection if the woman had gotten pregnant? Or what if the video tape showed that he was being forceful? What if she’s getting yeast or bacterial vaginitis—conditions that are being missed on routine examination because her medical providers are assuming (and rightly so) that she isn’t having sex?
People who are using their little anecdotal stories to justify how THEY would feel are still awake, conscious and able bodied at the end of the day. Doesn’t this woman get the benefit of the dignity of the last bit of bodily autonomy that she has? I mean damn. I get queasy and bummed seeing how they practically jam food down people’s throats in the nursing home because staff is on such a tight schedule supposedly.
Lastly, I’m with puckalish. I would hope that our justice system is capable of dealing with extenuating circumstances such as these accordingly. We need not treat the man like a sexual predator, but at the very minimum he shouldn’t be allowed to continue.
A few people here have said the the default assumption should be lack of consent not consent. If the man has some evidence that she did, in advance, consent to it or because of conversations would consent to it, maybe OK. But in this situation the burden should be on him to rebut the presumption of non-consent.
The difference between coma-sex and underage partner sex (statutory rape) is that in the former the man knows his “partner” is powerless to grant consent. In borderline statutory rape cases, where the young women look and act and consent like an adult, the man may not have formed an intent to have sex with a minor. He’s guilty nevertheless of rape. Several states have a sliding scale of age prohibitions now, such that partners close to the same age don’t run the same risk. But if a 30+ year old guy is ready to go with someone he thinks is 18, maybe he ought to ask for ID.
“If you are in a relationship where you DO require your partner to get a fully sober and awake yes before each and every touch, then you certainly have a right to expect your partner not to touch you if you’re in a coma, and your partner should know that boundary.”
“I’d be horrified if, for example, I got very drunk and had sex with my boyfriend and he was somehow prosecuted for rape because technically I wasn’t sober enough to give consent. Now, if he actually did force me to do something I didn’t want to do, obviously I would want the law to recognize it as a crime.”
And how would feel, if your bf did something you didn’t want him to do while you were sleeping (let’s say anal sex, since you mentioned that) and in court the defense lawyer argued “how could he or anyone know you didn’t want it, b/c you were asleep” and he wasn’t convicted? Because that, dear Terabithia, is not an uncommon scenario.
It’s sad, and it might not jive with your personal experience, but there are actually a heck of a lot of women in this country in relationships with men who do not have a ton of respect for their boundaries. There are plenty of well-respected studies that back that up.
Laws are made by people -of course they’re imperfect. Of course they’re not going to reach a satisfactory conclusion, in everyone’s eyes, in every case.
But feminists fought for a lot of laws regarding sexual violence in the 1970s and onwards because the fact is /a lot/ of women /are/ raped by their intimate partners, and society and the legal system has historically not granted the women many rights or been very sympathetic to them. As it stands now, it’s still an imperfect system -what’re you gonna do? Should we go back to the way it was thirty years ago when there were far, far fewer legal protections for women when it came to sexual situations (often none for women in marriage), so that we make sure no man /ever/ is unjustly jailed?
But I think this man’s case is fairly straight forward. He had no reason to think is comatose wife was really wanting him to have sex with her just then. He could have just, not done it…
manifestadestiny: Your argument seems to be that people cannot consent to before the situation actually presents itself. I disagree.
Does that mean that I think this man didn’t rape his wife? No. It means that there’s not enough evidence, presented to me anyway, to determine whether he did or did not receive consent from her, similar to what some of us seem to have in our relationships.
As for being objectified, that’s your opinion. You’re entitled to it, but it doesn’t make it true.
Not that I think this is the case, but I’m curious what opinion would be. If he presented a signed, notarized, living will that said that not only is she to be kept alive if she’s in a coma, but he’s also free to have sex with her at his discretion, would you accept that as consent? Or would you still say that it’s impossible for her to consent before the fact?
Considering you have no problem telling me, a living breathing person who is saying she is in a happy and healthy relationship, that I am being “used,” I’m not surprised you consider that you have a right to judge everyone else’s situation.
>Which is why the law (in most states, I guess, especially the more liberal states) errs on the side of protecting the potential victim. What’s so bad about that?
Well, I guess I don’t know exactly what the law was trying to do. If they were just trying to obtain an order to keep the husband from having any more unsupervised visits with his wife, then you’re right that they are erring on the safer side. But if they are trying to put him in jail, as I assumed because they called it sexual assault, then I think they are erring on the side of wanting to severely punish a person who may be innocent. That is not the safer side to err on.
>Unfortunately, modern medicine is a pretty male-dominated field and is not always well-oriented to dealing with problems like this. Have you considered that there may be something psychological at play as well?
I’ve seen two doctors about it, both female and very helpful, and I’ve done quite a bit of research on my own as well. Its not at all uncommon for the pill to cause dryness and make sex less comfortable, but since I’d be way more uncomfortable worrying about getting pregnant, I’ve made my choice. Maybe I haven’t been clear: I certainly enjoy sex, but I am often sore after. Its not like I’m doing something I hate. If I didn’t want to have sex, I wouldn’t.
> In borderline statutory rape cases, where the young women look and act and consent like an adult, the man may not have formed an intent to have sex with a minor. He’s guilty nevertheless of rape. Several states have a sliding scale of age prohibitions now, such that partners close to the same age don’t run the same risk. But if a 30+ year old guy is ready to go with someone he thinks is 18, maybe he ought to ask for ID.
I may be wrong, but I’ve heard that even if an underage girl is using a fake ID (for example to get into a bar) and the man has no idea that she’s underage, he can still be prosecuted for statutory rape. That’s messed up.
>And how would feel, if your bf did something you didn’t want him to do while you were sleeping (let’s say anal sex, since you mentioned that) and in court the defense lawyer argued “how could he or anyone know you didn’t want it, b/c you were asleep” and he wasn’t convicted? Because that, dear Terabithia, is not an uncommon scenario.
Of course he would know, because we’ve talked about this and we know what levels we’re both ok with.
Allie, Terabithia: You are speculating that this couple had an agreement to have sex with the other person even if one is comatose, and that what I would call outrageous, amazing speculation is coloring your view of a rape. You have no basis to speculate about that other than by looking at your own relationship and your desire to express an infinite yes.
The law has other ideas. It states that consent is necessary. She has no agency. I agree with the law of consent in this case because I agree with women being actively involved in the decision to have sex.
The decision AND the act.
manifestadestiny: Rape is sex without consent. Your position is that there’s no way she could’ve ever consented prior to the fact. I say I don’t know if she did or not, because I don’t know her, her husband, or anything about them other than what a terse article has provided. I don’t think that’s enough to decide that, without a doubt, he violated her and raped her.
It doesn’t color my view of rape. Rape is rape. But rape isn’t rape if there’s consent, and that’s what’s at issue as far as MY argument goes. You may feel that people can’t consent to things before they happen, but I disagree, because we do it all the time. In this case, it’s certainly an odd situation, but the fact that at least some of us feel differently than you do illustrates that your views aren’t universal, and neither are ours. We can keep going back and forth about this, but I doubt either of us is going to agree with the other, so it’s probably pointless to do so.
I wanted to hear Manifestdestiny’s answer to the question about what if the woman had consented in a living will. Just out of curiosity.
“Considering you have no problem telling me, a living breathing person who is saying she is in a happy and healthy relationship, that I am being “used,” I’m not surprised you consider that you have a right to judge everyone else’s situation.”
I didn’t tell you you were being used. Ever. I asked a couple of questions.
“Well, I guess I don’t know exactly what the law was trying to do. If they were just trying to obtain an order to keep the husband from having any more unsupervised visits with his wife, then you’re right that they are erring on the safer side. But if they are trying to put him in jail, as I assumed because they called it sexual assault, then I think they are erring on the side of wanting to severely punish a person who may be innocent. That is not the safer side to err on. ”
The law was seeking to protect unconsenting women from having men have sex with them. There is not, so far as I’m aware, a law dealing with the specific situation of a comatose wife. There are, however, laws in a number of states against having sex with an unconscious person, which most commonly are applied in situations of having sex with a black-out drunk, etc. So when you’re talking about the court ruling regarding a punishment, that’s a fairly different discussion.
And FYI, in case you’re not aware of it, every law sometimes results in innocent people being punished. Look at all the men put to death for murder who were later found to be innocent. It’s not like all laws /not/ dealing with rape are perfect either. Should murder not be illegal, since sometimes innocent people are punished?
“I may be wrong, but I’ve heard that even if an underage girl is using a fake ID (for example to get into a bar) and the man has no idea that she’s underage, he can still be prosecuted for statutory rape. That’s messed up.”
Why? He’s the adult. We take responsibility for our own actions in this world, and we’re all supposed to know the law. Unknowingly buying alcohol for minors could get you in the same sort of trouble. But, realistically in this case, often times these men /are/ let off the hook…
“Rape is sex without consent. Your position is that there’s no way she could’ve ever consented prior to the fact. I say I don’t know if she did or not, because I don’t know her, her husband, or anything about them other than what a terse article has provided.”
You know what? The /only/ person who could know if, in this specific instance, she would have wanted to have sex with him, is her. And she can’t answer, because she’s unconscious. Thus the law protecting her…
“>And how would feel, if your bf did something you didn’t want him to do while you were sleeping (let’s say anal sex, since you mentioned that) and in court the defense lawyer argued “how could he or anyone know you didn’t want it, b/c you were asleep” and he wasn’t convicted? Because that, dear Terabithia, is not an uncommon scenario.
Of course he would know, because we’ve talked about this and we know what levels we’re both ok with. ”
You missed my point completely, and didn’t answer. I am suggesting he knew you didn’t want it, and did it anyway, and then argued in court he didn’t know. Because /that is common/.
“Not that I think this is the case, but I’m curious what opinion would be. If he presented a signed, notarized, living will that said that not only is she to be kept alive if she’s in a coma, but he’s also free to have sex with her at his discretion, would you accept that as consent? Or would you still say that it’s impossible for her to consent before the fact?”
We don’t allow people to sign an all-access pass to their body like that when they’ll be conscious (because that’s what marriage used to mean legally, but no longer) so why would we allow people to do that in the case that they’ll be /unconscious/? Furthermore, do to above-mentioned possibilities for pain and other medical complications, I think the chances of someone agreeing to something like this is not huge.
Let’s for a minute assume the /likeliest/ scenario here (crazy, I know…) Let’s assume that this was never a situation she had thought about or anticipated, because I imagine that’s the case with most couples. Let’s say she wakes up one day, and finds out he’d had sex with her while unconscious. Do you not think, at the least, it would creep out a lot of women just slightly? I think most people are not comfortable with the idea of having sex with an unconscious body… And again, his action was /totally unnecessary/. He wouldn’t have been hurt in the least to /not/ have done this.
What do you want to do legally though, Terabithia? Do you think sex with an unconscious person should always be considered consent? If not, what would you have a law say?
“You know what? The /only/ person who could know if, in this specific instance, she would have wanted to have sex with him, is her. And she can’t answer, because she’s unconscious. Thus the law protecting her…”
Unless she’d otherwise made her wishes known ahead of time. Again, as I stated earlier, if you can choose to essentially KILL your spouse (by removing life support) based on your word alone, why don’t your words have the same weight if you said she consented to sex with you in such a situation?
“We don’t allow people to sign an all-access pass to their body like that when they’ll be conscious (because that’s what marriage used to mean legally, but no longer) so why would we allow people to do that in the case that they’ll be /unconscious/? Furthermore, do to above-mentioned possibilities for pain and other medical complications, I think the chances of someone agreeing to something like this is not huge.”
Possibly not. But, if your spouse (or next-of-kin or whatever) can essentially make all the decisions for you in the case of you being incapacitated, I find it funny that the line is drawn at sex. Is it creepy to have sex with a comatose person? Yeah. But that’s my opinion.
“Let’s for a minute assume the /likeliest/ scenario here (crazy, I know…) Let’s assume that this was never a situation she had thought about or anticipated, because I imagine that’s the case with most couples. Let’s say she wakes up one day, and finds out he’d had sex with her while unconscious. Do you not think, at the least, it would creep out a lot of women just slightly? I think most people are not comfortable with the idea of having sex with an unconscious body… And again, his action was /totally unnecessary/. He wouldn’t have been hurt in the least to /not/ have done this.”
I think it might creep her out. But it might not. I don’t know them or their situation, so I can’t say that any more than I can say that their relationship would not have allowed hot, lifeless coma sex. Why is it that if we base our opinions of the situation on our relationships and experiences, we’re wrong, but if you do it, it’s reasonable and would more accurately reflect her state of mind?
I’d assume she’s married to him because she loves and trusts him.
As far as whether or not having sex with an unconscious person should always be considered consensual, I’d say no, it would depend on the relationship. If you give your partner an orgasm so strong that they pass out, and you continue to stimulate them, are you raping them? According to the opinions here, it would seem so.
Allie, your spouse or next of kin may make medical and legal decisions for you, while you are incapacitated. But only because someone has to make those decisions, and the law assumes that the spouse or next of kin will have the patient’s best interests at heart. No one has to have sex with a comatose woman. That decision does not have to be made by anyone. So the law doesn’t allow it.
But why isn’t it a doctor, a lawyer or just some random person who makes the decisions? Because ideally, it’s believed the spouse or next-of-kin can be trusted to make decisions that honor the patient’s wishes and beliefs. My point is to say that I find it silly that you can be trusted with your spouse’s life, but not their genitalia.
and yes, before anyone goes and says it, I know that courts will sometimes appoint a legal guardian for people when their spouse or family either can’t be found or makes bad decisions
Thanks for the heads up, I’m making sure my prenuptial agreement gives me sexual rights to my wife in the event of a coma.
I’m sure there are women who’d prefer that to waking up divorced.
>I didn’t tell you you were being used. Ever.
Someone did upthread, and I was responding to that person. Scrolling up, it was someone called ShelbyWoo.
>Why? He’s the adult. We take responsibility for our own actions in this world, and we’re all supposed to know the law.
What can he do besides check her ID? If she is purposely using a fake ID it shouldn’t be his fault.
>I am suggesting he knew you didn’t want it, and did it anyway, and then argued in court he didn’t know.
That is a tough case. But in that case there would be a complaining victim, so while it would still be he said she said, it would be a very different situation than this one. There’s always a difference between what is wrong and what can be proven to have happened.
Ugh, Marcus, that’s disgusting. I mean, what is a partnership if it’s only good as long as there’s fucking?
Really, I mean, I like to think that us men are a little more substantial than to leave our significant others if we can’t fuck them while they’re comatose.
And, Lilitu, thank you… clear, concise, and almost stupidly obvious.
Actually, Terabithia, it was someone called manifesta destiny, not ShelbyWoo and not a.k.a. Ninapendamaishi.
Oops, you’re right, the post from ShelbyWoo was a different flame, I misread. On these comment threads I tend to just respond to the content– I don’t know who any of the people are, and the names are so tiny at the bottom of the posts that I usually don’t read them.
This isn’t stupidly obvious–that’s why so many people including those who know the women best–think there’s nothing wrong here…and the law isn’t clear in this case.
god, nothing depresses me more than rape apologists.
many thanks to regular commenters trying to educate allie and terabithia.
a quick question: rape is the one of the hardest crimes to prove– allie and terabithia, why do you want to make it even harder? and don’t kid yourself, nothing is going to happen to this guy in terms of him actually serving jail time.
I read over half these comments and was APPALLED that anyone is actually arguing this point in the husband’s favor.
No surprise that all those “arguments” consisted of was “what-ifs.” “What if they had a history of sleep sex? What if she woke up and said it was fine? What if what if what if?”
Yeah, what if, because NONE OF US KNOW and we will not know until that woman wakes up. And until she wakes up, you CANNOT just assume that there’s some handy explanation behind it. You could what-if until your face turns blue. Someone mentioned erotic asphyxia–if they’d caught him choking her, would it be okay, because WHAT IF they were into that?
It’s been said a million times already but obviously it must be said again: comatose sex is non-consensual sex. Non-consensual sex is RAPE.
“I’d assume she’s married to him because she loves and trusts him.”
Yes, and unfortunately in this world, trust is sometimes given where it isn’t deserved, or someone betrays your trust. Not uncommon, at all.
That’s why we have, you know, laws against domestic violence, partner rape, child abuse, etc…
And plenty of people have argued it isn’t the state’s business to interfere in all of those “personal” “intimate” situations as well. Well, I happen to appreciate the state’s effort to protect people (especially women and children), b/c we certainly don’t live in a culture where individuals always put those people’s well-being first, or where those people always feel confident standing up for themselves…
“As far as whether or not having sex with an unconscious person should always be considered consensual, I’d say no, it would depend on the relationship.”
But you didn’t answer my question. I asked you what you would have a /law/ say, specifically… Because you’re complaining about one law present in many states, but you don’t really present an alternative. Just because a law does not perfectly and clearcut-ly settle every case, does not make it a bad law. Or if it did, all our laws are bad laws.
Ok, i didnt read all of the comments, but i searched the page for the word “catheter” and didnt find matches
Comatose patients have catheters. I’m stuck on HOW this guy would have done it and thought that it was “ok”. It would be SO easy for nurses and doctors to realize something was up. There are so many steps he would have to take in order for the act to happen. If the case gets tossed completely out i hope he gets mental help. This kind of stuff scares me.
Also, Terabithia, don’t think everyone who disagrees with you is “flaming” you, okay? ShelbyWoo was simply stating, loudly and clearly, that comatose individuals cannot give consent for sex. And, as Lilitu pointed out, power of attorney relates to consent for medical and financial matters which must be settled in absence of the individual – not to consent for sex.
Allie,
You’re probably right.
Hmmnnn… and ~65% of rapes and sexual assaults were committed by persons known to the victims…
http://www.aardvarc.org/rape/about/statistics.shtml
i’m just saying… it’s not out of the question for people in whom we’ve invested our trust to betray that trust.
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.
It is really deeply upsetting that anyone can say rape is one of those gray issues. No. Rape is not a gray issue. There is a simple distinction between rape and sex, and that’s consent. Consent, sex. No consent, rape. I beg someone to try and argue that.
O.M.F.G. I really, honestly can’t BELIEVE how far people will go to make excuses for this guy. I mean, do people really going around making living wills stating their consent to future coitus while unconscious? Is it possible? Well, damn near anything is possible. Likely? Um…
Sure, yeah, it’s sad. Hella sad. Poor woman, lost to the world. Poor man, misses his wife. I’d say it’s also sad/awful that this man is so clueless about consent. In addition, I think it’d be awful sad if this guy is so deranged by his mourning that he has convinced himself that he’s going to pull a Sleeping Beauty/Prince Charming trick via coma “sex” (since we’re obviously rolling out the crazyland scenarios today).
I’m really so disturbed by the defend-the-husband comments that I want to believe that this incident is too much for you to stomach, so you must be trying to sugarcoat it in love and trust, to drive away the sickening feeling one gets reading this story.
But, everyone, really, REALITY CHECK TIME. THIS IS RAPE. The woman COULD NOT CONSENT. The husband was using her, like a Real Doll. She was comatose, largely absent from the moment (ie present in [lifeless!] body alone). If she felt anything, experienced anything, she couldn’t express herself, she’d be trapped in her own body, for chrissakes!
If anything about what this guy did, or allegedly claimed to be trying to do, seems normal to you, please think it over a bit more. Really. PLEASE.
Yeah, it’s all sad and fucked, but that doesn’t excuse a damn bit of it.
I suspect that neither side will love me for this but…
the questions are
1) Was the coma ‘rapid’ or slow in onset? (In other words, might they have discussed this while she was ‘compos’ and reached some understanding? )
and
2) Does her husband hold her ‘durable power of attorney for health care’ aka is he her ‘legal’ voice of consent?
If he has these two things, then this is not rape. It’s just kinky ( or perhaps dreadful and sad) sex.
If someone else holds the legal power over her person ( and does not agree with the action ) and/or she expressed a desire to NOT have such contact while still competent ( either directly or by general opinion and attitude ) then this is a crime.
But until someone answers those two points? I can’t see how anyone can make any solid yes/no proclaimations.
And yes – I know that generally a power of attorney for health care would not include power of sexual consent – but there is at least one legal judgement that it also does not give the guardian power to *forbid* sexual contact that the ill person wants and consents to – so it is indeed possible for her to have made agreements of consent before becoming utterly comatose. (If her health decline so allowed – which I do not know.)