Medical records at issue - Three constitutional issues facing state Supreme Court justices

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Medical records at issue - Three constitutional issues facing state Supreme Court justices

RACINE — Lawyers with the Wisconsin Department of Justice want state Supreme Court justices to consider three constitutional issues when they hear an appeal next month in billionaire Curt Johnson’s child sexual assault case.

Those questions — at issue in the criminal case against an heir to the Johnson family household products fortune — revolve around whether defendants have a constitutional right to review an alleged molestation victim’s mental health records, and what can be done when those alleged victims refuse to release their private records for a judge’s closed-door review.

According to a brief filed Friday with the state’s highest court, the three constitutional issues cited by state prosecutors are:

- Whether the Wisconsin Supreme Court should overrule a prior, lower court decision mandating that mental health records be reviewed by judges in some criminal cases, and pertinent information be released to lawyers involved in those cases.

- Whether a circuit court judge may require those mental health records to be provided, despite an alleged victim’s refusal.

- Should the Wisconsin Supreme Court justices decide that, in certain circumstances, defendants have a federal constitutional right for circuit court judges to review these mental health records and potentially disclose some personal medical information, has Johnson shown that he is entitled to a Racine County judge’s closed-door review of his stepdaughter’s therapy records.

Johnson’s defense attorneys now have 20 days in which to file a response to this brief. Assistant attorneys general then have 10 days to reply to Johnson’s attorneys’ response.

Defense attorney Mark Richards and Racine County District Attorney Rich Chiapete said Friday afternoon they had not yet seen the DOJ’s brief.

Lawyers involved in the high-profile case’s appeal will argue their sides before the state’s highest court on Feb. 25.

Johnson, 57, is charged with repeated sexual assault of the same child for allegedly molesting his teenage stepdaughter. Johnson, of Wind Point, is the former chairman of Diversey Inc. He is a son of the late SC Johnson chairman Sam Johnson.

Racine County prosecutors charged Curt Johnson in March 2011 after his then-15-year-old stepdaughter accused him of sexually assaulting her. The girl alleged in 2011 that her stepfather had molested her, with the abuse beginning when she was 12 years old and continuing for three years, according to court documents.

The girl alleged that Johnson sexually assaulted her between 15 and 20 times between 2007 and 2010, according to court records.

But the girl, now 17, and her mother — who live out of state — have refused to release her medical records.

Those medical records were requested by defense attorneys in 2011.

Last fall, Racine County Circuit Judge Eugene Gasiorkiewicz ruled that Johnson’s attorneys could seek those records, but that Gasiorkiewicz would review them privately in his chambers — and only provide pertinent information to Johnson’s attorneys and prosecutors. This is a common legal procedure called an “in camera” review.

Defense lawyers contend that when the teen was attending family relationship counseling, the counselor never reported any molestation accusations, as mandated. Inferences could be made then, defense attorneys argue, that the teen didn’t talk about her stepfather sexually abusing her — which directly relates to the teen’s credibility, according to Friday’s brief.

State prosecutors filed an appeal with the Wisconsin Supreme Court on May 17. It stemmed from an April ruling by the Court of Appeals that Johnson’s stepdaughter shall not testify in court unless she first agrees to release her medical records.

Five of the seven Wisconsin Supreme Court justices decided on Nov. 14 to take up the appeal, which involves whether the alleged victim may testify in court without first agreeing to release her medical records for review. Justices David Prosser Jr. and Michael Gableman didn’t participate in that order granting review, and recused themselves.

Johnson’s Racine County criminal case remains on hold because of this appeal.

Eugene Gasiorkiewicz has an April 4 status conference in the Racine County case.

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