Evidence of Nursing Home Abuse Cannot be Used
October 20 , 2008
Recently, a Wisconsin court has ruled that rights to privacy will prevent hard evidence of non-consensual sex between a comatose nursing home patient and her husband from being presented in court.
In 2005, police videotaped David Johnson, a 59-year old Wisconsin resident, having sex with his wife, a stroke victim currently in a coma. Since then, Wisconsin prosecutors have been trying to convict Johnson of felony sexual assault for forcing his comatose wife to engage in non-consensual sex.
If convicted of a first-degree felony sexual assault charge, Johnson could face up to 60 years in federal prison, along with thousands of dollars of restitution fines.
Court Rules Tapes Cannot Be Used as Evidence
However, this recent court ruling has deemed that the tapes were illegally recorded, as Johnson had a right to privacy in his wife's room and, therefore, police were in violation of the 4th amendment by making these recordings. The 4 th Amendment protects Americans against "illegal searches and seizures" by requiring that search warrants only be issued if probable cause exists.
Similarly, past case history has upheld that spousal visits in hospitals or long-term care facilities bear the expectations of privacy and should thus be protected.
With this ruling, prosecutors have run into a significant roadblock, as the primary pieces of evidence – the videotapes – are no longer admissible.
A Brief History of the Victim and Her Current Condition
Currently, Johnson's wife, 54, is cared for at Divine Savior Nursing Home in Portage, Wisconsin. After suffering a severe stroke, she was admitted to this chronic care, live-in facility where, according to court documents, the staff at the nursing home would check on her every two hours – regularly bathing her, stretching her muscles (to prevent atrophy) and giving her meals.
Because Johnson's wife was not capable of talking or moving on her own, prosecutors contend that she was "comatose." However, this has been a point of debate throughout Johnson's trial, as the medical distinctions for what constitutes a coma versus a persistent vegetative state can be subjective.
Prosecutors have argued throughout the trial that the main point of concern is whether or not the stroke victim was able to agree to the sexual act.
Circumstances Under Which the Questionable Videos Were Obtained
In 2005, nurses at the home started to suspect that Johnson's wife was being abused, as those who regularly treated her suspected that Johnson was having sex with her. Both resident nurses and Johnson admit that he would come to visit his wife daily, often closing the door to her room (which chronic care facilities permit).
The nursing home then contacted the authorities, and police were issued a warrant that allowed them to install cameras in the patient's room. According to this warrant, police were permitted to videotape the activities in Johnson's wife's room for a period of three weeks.
During this time, Johnson was filmed having non-consensual sex with his wife on at least three separate occasions. Based on this concrete evidence, Johnson was arrested and charged in 2005.
What This Ruling Means for the Case
The 4 th District Court of Appeals is responsible for issuing this recent court ruling against use of the videotape. Interestingly, this ruling upholds the initial ruling by Judge Patrick Taggart, a Sauk County Circuit Judge who decided in 2007 that the videotape shouldn't be used because it was illegally obtained.
At this point, Christopher Kelly (Johnson's attorney) suspects that prosecutors will have to drop the charges against his client. However, authorities are still deciding whether to file another appeal and bring this issue to the State Supreme Court.
(Source: FOX News)
Do you know someone victimized by nursing home abuse? If so, contact us today for legal advice and resources that will help the victim win much deserved and needed compensation.
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