Much has been written about the allegations that three employees at the Kitsap Health and Rehabilitation Center took naked photos of residents there. While prosecutors were frank about the behavior being “stupid,” they said they couldn’t find a crime.
That spurred Pierce County Councilwoman Joyce McDonald to write Kitsap County Prosecutor Russell Hauge, and ask, specifically, why voyeurism charges weren’t filed. She claimed in her letter that she wrote the law itself in her former job as a state legislator. “I would recommend that your deputy take a good look at the law which has been in effect for the past decade,” she wrote. “The law clearly states it applies when video or photographs are taken without permission anywhere there is a reasonable expectation of privacy. I would think that the residents of the nursing home and their families had that expectation of privacy.”
Hauge said he’s received a few letters and wanted to write a response to them. Rather than go through it myself, I will leave it for you to read.
“The case identified (by the case number) is how we refer to the allegations of mistreatment of patients at the Kitsap Health and Rehabilitation Center. The press coverage and the communications generated by that coverage have given a number of different names to the case. They all refer to the same central transaction: photos of vulnerable adult patients taken by caregivers. We have declined to file criminal charges against the caregivers who took part in this abuse.
This decision has caused considerable genuine concern. Abuse of loved ones by those entrusted with their care is the stuff of nightmares. By all reports, it’s clear a wrong was done. If a crime was committed, this office is the only agency that can pursue punishment. The public is right to ask whether we are doing our jobs.
I have reviewed all the reports on this case. The Bremerton Police Department did a fine job collecting all the available information. It’s my conclusion that we cannot seek a criminal penalty for the wrong that was done here. Here’s why.
First, we have very little direct evidence. Photos were taken of more than one patient in some state of undress. The pictures were taken with cell phones. We know the pictures were shared among some of the employees of the Center, but all have long since been deleted. From the statements taken, it is not clear how many patients were victimized, perhaps two or three. It looks like the patients are not aware they had been photographed. There is no evidence that any of the pictures were retained in any format. There is no suggestion that the electronic images were shared beyond a small circle at the Center.
The lack of actual photographs does not in itself prevent prosecution. Statements of those who took the pictures or had seen them could be used to prove the crime of Voyeurism, a Class C Felony punishable by up to five years in prison. However, to convict a person of that crime, we would have to prove, beyond a reasonable doubt, that the person took the pictures or viewed them â•˛for the purposes of arousing or gratifying the sexual desire of any person. RCW 9A.44.105 (2). That is the language used by the legislature to define the crime. And unless we can prove the conduct fits squarely within that definition, no crime has been committed.
Most of the employees who saw these pictures were revolted. Someone reported the violation to the Centerâ•˙s management, and they responded by immediately calling in law enforcement and the appropriate regulatory agency. We have evidence that three persons, now former employees of the Center, willfully took or shared the photographs. However, we have no evidence that any of the three — two women and one man — took or shared the pictures to arouse or gratify sexual desires. They used the pictures to mock the vulnerable people in their care.
Their conduct is abhorrent, but fits no definition of any crime. That is, their conduct does not meet the standard set by the legislature for punishment by a loss of liberty. In a number of statutes the legislature has made it clear that this conduct can be the basis of termination, the loss of a professional license, and a civil action for damages by those injured. (See, for example, RCW 70.02 concerning medical records privacy and RCW 18.130 concerning the regulation of health care professions.) But we can’t fine them or lock them up. They are not within the reach of the authority of this office.
All of us who work in this office do so because we want to see justice done. But our role is limited. We will review every allegation that a crime may have been committed. In many cases, that is all we can do. If the legislature has not mandated imprisonment for the conduct, we can go no further. We use all of our tools — our investigators, our education, and our imaginations — to find a way to respond, but sometimes we hit a wall. That is what happened in this case. We have asked ourselves the same question raised by the many thoughtful and concerned citizens: Can’t we do something to these people? Unfortunately, and to our great disappointment, the answer is no.”