In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home. See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008). The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years. The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.” Wis. Stat. § 940.225(2)(d). The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.” Wis. Stat. § 940.225(6).
Pursuant to state regulations and the policies of the nursing home, the husband sometimes closed the door to his wife’s private room during his frequent visits. Staff at the nursing home suspected “sexually inappropriate interaction” between the husband and his wife on one of these occasions.
After receiving an administrative waiver from the state and a search warrant (which proved to be defective), local law enforcement set up a hidden video camera, which recorded events in the wife’s room over a three-week period. The defective search warrant prompted the suppression of the video recording, the court having concluded that the husband had a reasonable expectation of privacy during his visits with his wife.
The case is fascinating in terms of the decisions and decision-makers involved, including the husband, the staff of the nursing home, the state agency that granted the waiver, the law enforcement officers that undertook the investigation, the court that issued the warrant, and the prosecutor who charged a serious felony. Of course, it is essential to recognize that the unconscious wife was not a decision-maker at any stage of this unfolding drama.
The decision-makers, other than the husband, apparently regarded the wife’s freedom from sex without express consent to be the paramount privacy interest in these circumstances. The wife’s privacy interest in marital intimacy was apparently an inferior interest to this, in their view. They thought she was being sexually abused, and they acted to protect her, even at her dignitary cost of being surreptitiously filmed having sex with her husband.
And the Wisconsin sexual assault statute lends some support to their view, although quite ambiguously so. The statute says only that the “defendant shall not be presumed to be incapable [of sexual assault] because of marriage to the complainant.” Lots of wiggle room in the phrase “shall not be presumed to be incapable.” And of course the wife has not complained, but apparently she would be unable to do so, even if she wanted to.
These various decision-makers, except the husband, were prepared to end the sexual relationship between these spouses because one of them was unconscious. Should the state declare an end to marital sex in such circumstances?