When one has sex with one's wife without her knowing - is it consider
rape since she was not given the opportunity to consent?

Interesting read
Source: http://www.msnbc.msn.com/id/26661840/
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Court: Cops illegally taped nursing home sex
Judges says husband of woman in coma had expectation of privacy
The Associated Press
updated 12:15 p.m. PT, Thurs., Sept. 11, 2008
MADISON, Wis. - 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.

"We are satisfied that Johnson's expectation of privacy while visiting
his wife in her nursing home room is one that society would recognize
as reasonable," the unanimous three-judge panel wrote.

The ruling means prosecutors cannot introduce the videotapes as
evidence in their case against Johnson, who is charged with felony
sexual assault for having intercourse with his wife without her
consent at least three times in 2005.

Johnson's attorney, Christopher Kelly, said his client would visit his
now 54-year-old wife every day, reading her the Bible and moving her
arms and legs so her muscles wouldn't atrophy.

The woman's sister is upset that prosecutors brought charges against
him, Kelly said. "She believes her sister's husband was merely
expressing his love for his wife and was trying everything he could to
bring her back to consciousness," Kelly said.

The couple married in 1988 and had no children, Kelly said.

Charges likely dropped
Kelly said he believed prosecutors would be forced to drop the charges
without the evidence on the tapes and thought the appeals court made
"a pretty obvious call."

Johnson's wife was admitted to the nursing home after suffering a
stroke. Court records say she was unable to speak or sit up, and
nursing home staff members fed, cleaned and turned her. Prosecutors
say she was comatose.

Johnson visited her frequently and sometimes would close the door to
her room so they could have privacy as allowed by the nursing home.
But staff members tipped off police, fearing she was in danger
because, they suspected, he was having sex with her.

Police obtained a search warrant to videotape the room and installed
the camera, which ran for three weeks. Johnson, who is free on bail,
was charged based on that evidence.

Columbia County Circuit Judge Patrick Taggart tossed out the evidence
last year, ruling it stemmed from an illegal search. Prosecutors
appealed, arguing Johnson had a right to privacy when he visited his
wife to care for her but not when he used the room for what they
contend was illegal intercourse.

The appeals court affirmed Taggart's ruling.

Department of Justice spokesman Bill Cosh said prosecutors are
evaluating whether to ask the state Supreme Court to review the case.

Johnson's wife remains in a coma at the nursing home.