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July 2, 2024

House clears bill to protect patients sexually assaulted by medical providers

A large brick building with columns in front and a gold dome on top with a long staircase leading up to it and an American flag on the left hand side. Photo | Courtesy of Commonwealth of Massachusetts Massachusetts State House

Patients who are sexually assaulted by medical professionals would gain expanded protections under a bill that has cleared the House and is awaiting action in the Senate.

Medical providers and clergy members who inappropriately touch or assault patients while claiming to be providing legitimate care could face jail time under legislation (H 4350) the House passed last week. The bill, a Judiciary Committee redraft that combines proposals from House Speaker Pro Tempore Kate Hogan and Senate Minority Leader Bruce Tarr, is now before the Senate Ways and Means Committee.

Adopted without debate or even discussion, the bill creates two new felonies for indecent assault and battery and rape "by a medical or health care provider through false representation of a legitimate medical or treatment purpose," according to a Judiciary Committee bill summary obtained by the News Service.

The legislation aims to remove hurdles surrounding consent and false representation that district attorneys may currently encounter when they try to prosecute sexual assault cases involving medical professionals, according to the summary. A patient may consent to a pelvic exam, for instance, though it could later turn out the exam was not medically necessary, the summary said.

Under case law from the Supreme Judicial Court, individuals who say they were assaulted by health care providers can see scant reprieve if they are viewed as consenting to care, said Middlesex District Attorney Marian Ryan, who has advocated for the bill. Ryan said the issue typically arises with gynecologists, including among patients who are seeking fertility care, and orthopedists treating injured athletes.

"If during the course of that treatment there is inappropriate sexual touching, it amounts to a rape, right now we can't prosecute that because the SJC has said that you've given consent, even though you may have been essentially tricked into giving that consent," Ryan said. "So it's really a double betrayal because you go to a professional to get help with whatever your issue is, they take advantage of that, and touch you inappropriately. Then you come to us, thinking that you're going to be able to get a remedy, and we say right now, 'Sorry, we can't help you.'"

The state Board of Registration in Medicine, which licenses more than 40,000 physicians, osteopaths and acupuncturists, separately investigates complaints and determines punishments.

The board has disciplined physicians for sexual misconduct, including suspending or revoking their licenses, according to a spokesperson for the Executive Office of Health and Human Services. Reasons for discipline include being convicted of a crime, "practicing medicine deceitfully or engaging in conduct which has the capacity to deceive or defraud," or acting in a way that undermines public confidence in health care, the spokesperson said.

Ryan said patients can feel vulnerable when they are dressed in a medical gown, lying on an exam table.

"It's very hard to object to the professional who you've made an appointment with and waited a long time to get that appointment, and are counting on that person's judgment and training to help you with your problem," she said.

Tarr said the bill removes "gray area" around assault, identifies the crime committed "under the guise of providing medical care," and boosts enforceability among prosecutors. The bill, if approved, would recognize that a patient's consent was not valid if it was secured by a provider who fraudulently claimed a treatment was medically necessary, Ryan said.

Ryan said her office encounters people who allege that they've been assaulted by medical professionals "fairly often," and she's also concerned by the volume of people who do not report incidents.

'"I think it's happening more than people imagine," Ryan said. "I think initially people thought of it as just sort of a women's issue but it really isn't. I mean, we've had a lot of cases, particularly around athletes. It's the same ideas as Aly Raisman and so many of those cases -- people who gave consent to whatever needed to happen because they wanted to get back to playing."

Raisman, an Olympic gymnast, was among hundreds of women who accused physician Larry Nassar of sexual abuse. Nassar in 2018 was sentenced to 40 to 175 years in prison, according to CNN. 

The Nassar case fueled Tarr's interest in sponsoring the legislation, the Gloucester Republican said.

Health care providers and clergy who commit an indecent assault and battery on a patient "during the course of diagnosis, counseling, or treatment" could be sent to prison for up to five years under the bill. A provider or clergy member who "knowingly induces a patient or client to engage in sexual intercourse during the course of diagnosis, counseling, or treatment," would face up to 20 years in prison.

During prosecution of those types of crimes, the "patient or client shall be deemed incapable of consenting to contact of a sexual nature when consent was procured by a false representation that the act was for a legitimate medical or treatment purpose," the bill states.

"The penalties in this bill are very strict. We're talking in each case about a felony," Tarr said. "It would send a clear signal to any physician contemplating this type of behavior that there is now a clear and succinct charge that can be made. This eliminates any consideration of a gray area and identifies the crime."

The House passed a version of the legislation last session -- in June 2022 - but Senate Democrats took no action on it during the roughly six weeks before formal sessions ended for that term.

Tarr said the bill has a "lot of momentum," particularly after Gov. Maura Healey recently signed a bill to ban revenge porn and crack down on coercive control by domestic abusers.

"Clearly, the Legislature is trying to address these kinds of issues, and I think against that backdrop, the bill has a good way of finding its way to the governor's desk," Tarr said. He added, "Innocent people are placing absolute trust in a health care provider and that trust relationship should be given special attention and special consideration."

Hogan also offered a positive outlook.

"We're very optimistic about this bill," Hogan told the News Service. "It comes on the heels of other recent legislation dealing with issues of consent and will be an important addition to this session's legislative accomplishments."

A spokesperson for Senate Ways and Means Senate Ways and Means Chair Michael Rodrigues declined to say whether the panel intends to take action on the bill this session.

"Every person should be able to live their life free from sexual assault, and the Chair and Senate Ways and Means members stand strongly with survivors," Rodrigues spokesman Sean Fitzgerald said in a statement. "As with all bills passed by the House of Representatives, the Senate will carefully review the legislation."

Ryan said she's "very hopeful" the Senate will take up the bill.

"My hope is that that will lead to some really good public conversations so that people will be more conscious of what's appropriate and when they can certainly bring to attention something they've experienced," Ryan said.

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