MADISON – Despite Curt Johnson’s purported admission that he inappropriately touched his stepdaughter, his defense attorney told five Wisconsin Supreme Court justices on Monday that’s not the case.
The heir to the Johnson family household products fortune is accused of repeatedly molesting his teenage stepdaughter. The issue of Johnson’s defense to the accusations came as the justices peppered his attorney with questions, along with a prosecutor for the state Department of Justice, who have appealed a lower court’s ruling in Johnson’s Racine County child sexual assault case.
“Just so I understand: So Mr. Johnson has denied sexual contact with (the girl), so that’s his defense?” Wisconsin Supreme Court Justice Pat Roggensack asked defense attorney Mark Richards during oral arguments Monday before the state’s highest court.
“Yes,” he responded.
He is seeking the ability to force the teen’s confidential medical records to be released for a Racine County judge’s private review to determine whether the records contain information that’s potentially pertinent to the criminal case. But she has refused to waive her privacy rights, staunchly opposing release of the records.
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. and a son of the late SC Johnson chairman Sam Johnson.
Richards said they are seeking the records to determine whether she ever reported her sexual assault allegations in therapy. He argued that two therapists who met with her never reported accusations of sexual abuse at Johnson’s hands – which they legally were required to do had she confessed it to them.
“So your inference is since they didn’t report it, it didn’t happen,” Justice Annette Ziegler cut in.
“Partially,” Richards said.
He said he also wants to learn the root cause of the teen’s problem or “angst” with Johnson, one of the reasons the family previously was in counseling.
“So you want that to bolster your case. She didn’t report it to the counselors so it didn’t happen,” she said. “So why not just elicit that testimony without the records?”
Richards said that’s because defense lawyers couldn’t prove what the teen would say would be true.
Assistant Attorney General Marguerite Moeller said defense lawyers haven’t indicated why they think the girl would have made false accusations against Johnson.
Johnson didn’t attend Monday’s arguments, nor was he expected to.
Racine County prosecutors charged him in March 2011 after his then-15-year-old stepdaughter accused him of sexually assaulting her for three years, beginning when she was 12 years old, according to court documents.
The allegations surfaced, according to lawyers on Monday, when Johnson purportedly told his therapist in Arizona that he inappropriately touched his “daughter.”
“He does have a daughter,” Richards told the justices. “The disclosure of (alleged abuse by his stepdaughter) to the mother predates that.”
The stepdaughter, now nearly 18, and her mother live out of state.
“This is a case we see all too often around the state. My concern is for collusion and coercion,” Justice Ann Walsh Bradley said. “I understand there is no assertion in this case of collusion and coercion — but it exists in other cases around the state.”
She said a relative, such as the mother, could put pressure on the child not to release private medical records so the alleged abuser — the mother’s boyfriend or husband – winds up having criminal charges dropped. That doesn’t seem like the proper balance among the rights of the defendant, accuser and the public, Bradley said.
But Johnson’s stepdaughter has an attorney, as does her mother, Johnson’s wife, Richards said.
“There is no allegation of collusion,” he said. “(Prosecutors contend) all these prosecutions are going to be barred (and mothers and daughters will arrange for that.) I believe that argument is fallacy put forth by the government that the sky is gonna fall.”
However, Moeller said defense attorneys also do not want any of the stepdaughter’s comments — made to people outside of court — used during Johnson’s trial. That would be a double blow to prosecutors.
“I don’t see how you could possibly proceed (with the prosecution),” she told the justices. “(Does an alleged victim’s privacy privilege) have to bow to a defendant’s constitutional rights? ... Here, the whole thing was triggered by Johnson’s admission in Arizona.”
Journey to high court started with defense request
MADISON — It started with a defense request in 2011 for an alleged molestation victim’s medical records.
In fall of 2011, 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 argue that when the stepdaughter was attending family relationship counseling, the counselor never reported any molestation accusations, as mandated.
State prosecutors filed an appeal with the Wisconsin Supreme Court on May 17.
It stemmed from an April 2012 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, nor were they present Monday for oral arguments in the case.
Case on hold
Johnson’s Racine County criminal case remains on hold, pending the outcome of appeals in the case.
At issue in the case is 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.
The justices never give a timetable as to when they may issue a ruling in the case.