Surveillance Tapes Ruled Invasion of Right to Privacy in Wisconsin Nursing Home
Leah Johnson is the center of a controversy in this tragic case and she is not even aware of it. Mrs. Johnson, 53, became a resident of Divine Savior Nursing Home in Portage, Wisconsin after suffering a debilitating stroke in 2005. She entered the chronic care facility unable to talk or move on her own.
In June 2005, a facility employee reported that David Johnson, Leah Johnson's husband and a former minister, had touched his wife in a way that may have been sexually inappropriate. Johnson had closed-door visits with his wife in the past with the facility's knowledge. The facility policy and state administrative code provide residents and their spouses a right to private visits, but the Administrator of Divine Savior Nursing Home obtained a waiver of the state rule from the Department of Health and Family Services - without advising David Johnson - and went to police. Police obtained a search warrant and placed a hidden video camera in Mrs. Johnson's room. The camera recorded three weeks of surveillance, in which David Johnson was seen having marital relations with his wife. Because Mrs. Johnson is unable to talk or move on her own, she was considered "comatose" and unable to consent to marital relations.
In May 2007, Sauk County Circuit Judge Patrick Taggart ruled that the search warrant was improperly executed and that Mr. Johnson had the right to privacy in his wife's room. The judge further ruled that the videotapes could not be used as evidence in a criminal trial against Johnson. Prosecutors appealed this ruling to the Wisconsin's Fourth District Court of Appeals and the Court of Appeals upheld Judge Taggart's initial ruling. At this point, prosecutors are deciding whether or not to file another appeal and bring the issue before the State Supreme Court or dismiss the charges.
It is unclear whether this case would affect the evidentiary status of a court video placed by a family member suspecting a nursing home of abuse.
Currently, David Johnson faces eight felonies - four counts of second-degree sexual assault of an unconscious person and four counts of third-degree sexual assault.
