The alleged victim in the Curtis Johnson sexual assault case can testify without releasing her medical and mental health records, Racine County Circuit Court Judge Eugene Gasiokiewicz ruled Tuesday.
Gasiokiewicz denied motions by both sides in the case, which involves the billionaire heir to the SC Johnson fortune. Johnson lives in Caledonia. But the crux of the ruling is that the victim will be able to testify in the case. The defense had hoped to prevent her testimony because she refused to release medical records showing she could not accurately recall events in the case.
In his opinion filed with the court on Tuesday, Nov. 29, Gasiokiewicz ordered the victim to turn over her medical and mental health records for an in camera review. An in camera review means the judge reads through the records in chambers and makes a determination if anything can or should be given to the parties in the case.
Gasiokiewicz denied a motion from the state to issue a subpoena duces tecum, which would have compelled the victim to turn over her records. He also denied a motion from the defense to bar the victim from testifying because she maintains her refusal.
His reason for denying the state's request is based on the victim's right to privilege, and he said that same right is not reason to bar her from testifying should the case go to trial.
"Barring victim testimony is an inappropriate sanction for the assertion of (her) statutory communication privilege," he wrote.
Further, Gasiokiewicz noted the defense's contradictory stance regarding the victim's ability to accurately recollect the events in question. In the body of the opinion, he states that the defense cannot on the one hand say the victim's medical or mental health condition impairs her memory and on the other hand recognize that the victim has full comprehension of the process.
While the judge did order the victim to comply, he also gave her a couple of outs: she can confirm she will comply and then produce the records in 20 days with an agreement for the in camera review; or reconfirm her assertion of statutory communication privilege.
If she chooses to uphold her privilege, the judge will still allow her to testify and uphold her privilege. But that also means the jury will receive instructions that what the victim withholds by denying the review of her records could be helpful to the defense. Not turning over her records will also limit the defense's potential cross-examination of the victim as it pertains to her privilege.
Johnson was with first degee sexual assault of the same child. Since then, he pled guilty and was released on $500,000 bail with the conditions that he remain in the state and surrender his passport. On , allowing him to go to Arizona for therapy, to travel for business and .
the records be turned over to him so he could review them and decide what could possibly be released to both sides of the case. On Nov. 10, he said he would render an opinion "in a couple of weeks" on how to move forward.