Appeals court throws out video evidence in nursing home sex case
A state appeals court upheld dismissal Thursday of videotape evidence of a Watertown man allegedly having sex with his comatose wife in a Portage nursing home.
The District 4 Court of Appeals concluded that David W. Johnson had an expectation of privacy at Divine Savior Nursing Home while visiting his wife, who had been severely debilitated by a stroke.
Johnson, 59, had been charged in Columbia County Circuit Court in 2005 with four counts of second-degree sexual assault of an unconscious person and four counts of third-degree sexual assault after the nursing home administrator obtained a waiver of state code that provides privacy for all nursing home residents during spousal visits.
The waiver allowed Divine Savior to install a video camera in Johnson's wife's private room.
According to the appeals decision:
Administrator Jennifer Bieno testified that nursing home policy allowed closed-door visits for spouses and that staff would knock before entering the patient's room. Bieno also testified that state patient code waived privacy rights when staff believed a patient's safety was at issue.
After receiving a staff report about inappropriate sexual conduct by Johnson during a visit with his wife, Portage police obtained a search warrant and installed a video camera for three weeks in Johnson's wife's room without Johnson's knowledge.
After he was charged, Johnson's attorney, T. Christopher Kelly of Madison, sought dismissal of the video evidence, arguing on a number of grounds, including that the search warrant was improperly obtained. The state didn't contest that claim, and Circuit Judge Patrick Taggart threw out the evidence, finding that Johnson had an expectation of privacy while in his wife's room and that the search violated his Fourth Amendment protection against unreasonable search and seizure.
On appeal, the state argued that Johnson hadn't proven he had his wife's permission to be in her room, and he certainly didn't have permission to sexually assault her. The District 4 court rejected this argument as nonsensical because Johnson's wife was unable to grant permission for anything.
The court also rejected the state's claim that Johnson's visits were not consistent with historical notions of privacy when he used the room to have sexual intercourse with his comatose wife. The court noted that the argument relies on proof of an alleged illegal act that has not been properly admitted as evidence.
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. We conclude that Johnson has established by a preponderance of the evidence that he had a reasonable expectation of privacy in his wife's room and that the search violated his Fourth Amendment rights," according to the unsigned, 10-page opinion.
Kelly said that he didn't think Johnson's wife needed protection from her husband and that the state has never proven a sexual assault occurred, as the tape isn't clear and consent remains an ambiguous issue.
"What's sad about this case is that Mr. Johnson deeply loves his wife, he's distressed by her physical condition. 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," Kelly said.
William Cosh, spokesman for Attorney General J.B. Van Hollen, said, "We'll evaluate the case for possible petition for review (by the Wisconsin Supreme Court)."
If the case is not further appealed, Kelly expects the charges against Johnson to be dropped.
