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).
My colleague Ralph Anzivino has a helpful new article that explores the fine line between contract law and tort law: The Economic Loss Doctrine: Distinguishing Economic Loss from Non-Economic Loss, 91 Marq. L. Rev. 1081 (2008). As developed by Wisconsin and many other states, the economic loss doctrine indicates that purely economic losses are recoverable in contract, while non-economic losses are recoverable in tort. The difficulty lies in distinguishing economic from non-economic, particularly with respect to property damage resulting from product failure. (Imagine, for instance, a defective garage door opener that causes a garage door to close on the owner’s car.)
This fall the Wisconsin Supreme Court will revisit the issue of whether to permit citation of unpublished Wisconsin Court of Appeals opinions. The issue is scheduled for hearing on October 14, 2008. The current rule forbids citation of unpublished opinions “as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.” Wis. Stat. § 809.23(3). In January, the Wisconsin Judicial Council filed a petition asking the court to amend the rule to permit citation of unpublished opinions “for [their] persuasive value.”