Nursing Home Sex Tapes Not Admissible In Court

By: Gerri L. Elder

In Wisconsin, a minister was arrested after it was discovered that he was having sex with his comatose wife, according to the Milwaukee Journal Sentinel.

David W. Johnson, 59, was charged with eight felonies including four counts of second-degree sexual assault of an unconscious person and four counts of third-degree sexual assault. He was also charged with a misdemeanor.

Mrs. Johnson suffered a stroke in 2005 and required round-the-clock nursing care.

The charges against Johnson came after he had allegedly been loud and abusive with employees at the nursing home where his wife resided. Following the incident, an employee reported that he had allegedly touched his wife in a way that may have been sexually inappropriate.

The policy at the Divine Savior Nursing Home, as well as state administrative code, provides that residents and their spouses have the right to private visits. However, the administrator at the nursing home went to the Department of Health and Family Services and obtained a waiver of the state rule. This waiver allowed the nursing home to spy on Johnson and his wife.

The administrator then notified the police that Johnson has allegedly been touching his wife in a sexual way during closed-door, supposedly private, visits.

Johnson was, of course, not told about the waiver. Police obtained a search warrant that allowed a hidden camera to be placed in Mrs. Johnson’s room. The Johnson’s visits were under surveillance for three weeks. During that time, Johnson allegedly had sex with his wife.

On July 21, 2005, armed with the secret video footage, police arrested Johnson for sexual assault.

Johnson’s criminal defense attorney argued that his client had a reasonable expectation of privacy while visiting his wife at the nursing home. Johnson had visited his wife daily, read to her and prayed with her. On the occasions when he allegedly had sex with her, he was supposedly being affectionate in hopes of getting a response from her and aiding her recovery.

In May 2007, Sauk County Circuit Judge Patrick Taggart, who heard the Columbia County case as a substitute judge, ruled that the search warrant was improperly executed. He agreed with Johnson’s lawyer that Johnson had a right to privacy while visiting his wife in her private room.

Judge Taggart said that the videotapes of Johnson allegedly having sex with his wife cannot be used as evidence in a criminal trial.

The prosecution unsuccessfully appealed the ruling to the 4th District Court of Appeals. Assistant District Attorney Troy Cross said the attorney general’s office will consider whether or not it will appeal to the Wisconsin Supreme Court.

The case is interesting because it questions the balance between a nursing home’s duty to protect patients and an individual’s right to privacy. Also at issue is the situation of marital sexual abuse. Linda Morrison, director of the Wisconsin Coalition on Sexual Assault, said that any sex with a person unable to consent is rape.

Johnson’s lawyer says that the case is tragic.