PHOENIX — A former nurse charged with sexually assaulting an incapacitated woman who later gave birth at a Phoenix long-term care facility has appealed a court order requiring a test to determine if he has HIV or other sexually transmitted diseases.

A lawyer for Nathan Sutherland says in an appeal filed last week that an order from a lower court should be overturned because there is no evidence to suggest his client has a sexually transmitted disease.

Attorney Edwin Molina says 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.

Nathan Sutherland Maricopa County Sheriff's Office

Authorities say Sutherland, 37, was working as a licensed practical nurse at Hacienda Healthcare when he raped the 29-year-old victim, who has been in long-term care since age 3 after suffering a near-drowning.

She gave birth to a boy at the facility Dec. 29. Employees said they had no idea she was pregnant.

The surprise birth triggered reviews by state agencies, highlighted safety concerns for patients who are severely disabled or incapacitated, and prompted the resignations of Hacienda's chief executive and one of the victim's doctors.

Investigators say Sutherland's DNA matched a sample from the woman's newborn boy, who is being cared for by her family.

Sutherland has pleaded not guilty to charges of sexual abuse and abuse of a vulnerable adult.

Hacienda fired Sutherland after his arrest. He has since given up his nursing license.