Does “the right to privacy” encompass sex with a comatose spouse?

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It does according to this disturbing article.

A Wisconsin appeals court says a man charged with allegedly having sex with his comatose wife in a nursing home had the right to an expectation of privacy.

The District 4 Court of Appeals Thursday upheld the dismissal of videotape evidence of David W. Johnson, 59, of Watertown, Wis., allegedly having sex with his wife, a stroke victim, in Divine Savior Nursing Home in Portage in 2005, The Madison Capital Times reported Friday.

Portage police installed the camera without Johnson’s knowledge after nursing home officials said they suspected Johnson was sexually touching his wife, the Milwaukee Journal Sentinel reported Friday.

A spokesman for state Attorney General J.B. Van Hollen said his office may appeal the case to the Wisconsin Supreme Court because prosecutors view the case as sexual assault, the Sentinel reported.

Johnson’s lawyer, T. Christopher Kelly, of Madison, said his client should be left alone.

“Mr. Johnson deeply loves his wife,” Kelly said. “He’s spent every day talking to her, holding her, trying to stay connected with her and bring her back. I think he’s entitled to privacy in this matter.

Does he get to keep “having sex” with his unable-to-consent wife too? What a horrible story.

–Ann Bartow

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0 Responses to Does “the right to privacy” encompass sex with a comatose spouse?

  1. Orin Kerr says:


    If I recall the case correctly ( I read it last week), it was a Fourth Amendment case, not a right to privacy case in the Lawrence/Griswold sense. The basic idea was just that there is a right to privacy in a nursing home room just like a hotel room or a rental property. So the facts are shocking, but the law was actually relatively routine.

  2. Ann Bartow says:

    I need to read the case, obviously!