A man who allegedly raped and impregnated an incapacitated woman under his care is fighting a court order to get tested for HIV, claiming it violates his constitutional rights.
A lawyer for Nathan Sutherland said in an appeal filed last week that a lower-court order should be overturned because there is no evidence to suggest his client has a sexually transmitted disease.
Attorney Edwin Molina said such a test would violate Sutherland’s constitutional protections against unreasonable searches and seizures.
The Maricopa County Attorney’s Office, which is prosecuting Sutherland, declined to comment on the appeal.
Prosecutors have previously cited a state law that says people accused of sexual assault are subject to tests to determine whether they have a sexually transmitted disease. Such results are to be released to the victims.
Sutherland, 39, was working as a licensed practical nurse at Hacienda Healthcare when he allegedly raped the 29-year-old victim, who has been in long-term care since age 3 after suffering a near-drowning. When she went into labor on Dec. 29, 2018, it shocked nurses, who were barely able to keep the baby alive.
“One of our patients just had a baby, and we had no idea she was pregnant,” a nurse told a 911 dispatcher that. The call turned frantic when the baby started “turning blue” but the boy was eventually treated by paramedics and survived. The family’s lawyer has described him as healthy and he is being cared for by the family of the victim.
A weekslong investigation led to the identification of Sutherland as the father of the boy, making him the rapist of the woman. Investigators said Sutherland’s DNA matched a sample from the baby.
After he was arrested and charged, Hacienda fired Sutherland. He later gave up his nursing license.
Phoenix Police Chief Jeri Williams said at a press conference following the arrest that Sutherland, 36, was a licensed nurse who had worked at the facility since 2011.
Sutherland “committed this unspeakable act when he assaulted one of the most vulnerable members of our community,” Williams said. “From the minute we first became aware of this crime we have worked virtually nonstop trying to solve and resolve this case. The investigation was and still is the highest priority of our department.”
Speaking to reporters after he entered the plea for his client, attorney David Gregan noted that his client is innocent until proven guilty.
“Mr. Sutherland, just as you and I are, is entitled to due process of law,” Gregan said, reported the Arizona Republic. “Mr. Sutherland is entitled to constitutional protection just as you and I are. And, finally, Mr. Sutherland—just as you and I are—is entitled to a full defense. I intend to make sure he receives all these things.”
A nurse who worked closely with Sutherland at Hacienda and helped him care for the woman he allegedly raped called him a coward.
“I cried. I just cried and cried. I think he is a coward. I think he is the lowest scum imaginable because I considered him a friend,” Eleanor Riggers told ABC 15 after his arrest. “He’s a coward.”
Riggers said there were many other women who have similar conditions in the wing that Sutherland worked in, with some also not being able to communicate verbally.
And she said that staff members didn’t always follow a policy of checking in on patients every 15 minutes.
“In every facility, things are more lax at night. I can tell you that in every facility it’s lax at night,” Riggers said.
The Associated Press contributed to this report.