House of Representatives passes bill to combat sexual assault by healthcare providers

Middlesex District Attorney Marian Ryan speaks to attendees of the gun violence awareness vigil held outside Lowell City Hall on June 7, 2024. (Aaron Curtis/Lowell Sun)

BOSTON — Patients sexually abused by health care workers would receive expanded protections under a bill that passed the House of Representatives and is now awaiting further consideration in the Senate.

Medical personnel and clergy who inappropriately touch or assault patients while claiming to be providing them legitimate care could face jail time under the bill (H 4350) that the House passed last week. The bill, a Judiciary Committee rewrite that combines proposals from House Speaker pro tempore Kate Hogan and Senate Minority Leader Bruce Tarr, is now before the Senate Budget Committee.

The bill passed without debate or even discussion and creates two new crimes: indecent assault and rape “by a physician or health care provider by falsely representing a legitimate medical or treatment purpose,” according to a summary of the bill from the Judiciary Committee obtained by the News Service.

The law is intended to eliminate hurdles related to consent and false testimony that prosecutors currently face when seeking to prosecute sexual assault cases involving medical personnel, the summary says. For example, a patient may consent to a pelvic exam even though it may later turn out that the exam was not medically necessary, the summary says.

Under Supreme Court case law, people who say they were assaulted by health care providers are unlikely to get relief if they are deemed to have consented to treatment, said Middlesex District Attorney Marian Ryan, who lobbied for the bill. Ryan said the problem typically arises with gynecologists, including patients seeking fertility treatments, and orthopedic surgeons who treat injured athletes.

“If there is inappropriate sexual touching during treatment, which amounts to rape, we cannot prosecute that at this time because the Supreme Judicial Council has determined that you gave consent when in fact you could have been tricked into giving that consent,” Ryan said. “So it’s really a double betrayal because you go to a professional to get help for your problem and they take advantage of that and touch you inappropriately. Then you come to us thinking you can get a cure and we immediately tell you, ‘Sorry, we can’t help you.'”

The state medical licensing board, which licenses more than 40,000 physicians, osteopaths and acupuncturists, investigates complaints separately and sets penalties.

According to a Department of Health spokesman, the board has disciplined doctors for sexual misconduct, including suspending or revoking their license. Reasons for the disciplinary action include a felony conviction, “fraudulent practice of medicine or conduct that may lead to deception or fraud,” or conduct that undermines public confidence in the health care system, the spokesman said.

Ryan said patients can feel vulnerable when lying on an examination table in a hospital gown.

“It is very difficult to object to the professional with whom you have made an appointment, waited a long time for that appointment and whom you trust, based on his judgment and training, to be able to solve the problem,” she said.

Tarr said the bill eliminates the “gray area” around assault, identifies the crimes committed “under the guise of medical care” and increases enforceability for prosecutors. The bill, if passed, would recognize that a patient’s consent is not valid if it was obtained by a provider who fraudulently claimed that treatment was medically necessary, Ryan said.

Ryan said her office encounters people claiming to have been assaulted by medical staff “quite often,” and she is also concerned about the large number of people who do not report the incidents.

“I think this happens more often than people think,” Ryan said. “I think people initially thought it was just a women’s issue, but it really isn’t. I mean, we’ve had a lot of cases, especially involving athletes. It’s the same ideas that we’ve had with Aly Raisman and so many of these cases – people who did whatever needed to happen because they wanted to get back to playing.”

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

The Nassar case has increased Tarr’s interest in supporting the bill, said the Gloucester Republican.

Health care providers and clergy who indecently assault and physically attack a patient “during diagnosis, counseling or treatment” could face up to five years in prison, according to the law. A provider or clergy member who “knowingly induces a patient or client to engage in sexual intercourse during diagnosis, counseling or treatment” would face up to 20 years in prison.

In prosecuting this type of crime, the “patient or client is deemed incapable of consenting to contact of a sexual nature if consent was obtained through the false representation that the act was for a legitimate medical or treatment purpose,” the bill states.

“The penalties in this bill are very severe. We are talking about a crime in every case,” Tarr said. “It would send a clear signal to any doctor considering such conduct that there is now a clear and concise charge that can be brought. This eliminates any gray area and identifies the crime.”

The House of Representatives passed a version of the bill in the last session – in June 2022 – but Senate Democrats took no action on it in the roughly six weeks before the end of the official sessions of that legislative session.

Tarr said the bill has received “strong support,” especially after Governor Maura Healey recently signed a law banning revenge porn and cracking down on coercive measures used by domestic abusers.

“The legislature is obviously trying to address these types of issues, and I think with that in mind, the bill has a good chance of finding its way to the governor’s desk,” Tarr said. He added, “Innocent people put their complete trust in a health care provider, and that trust relationship should be given special attention and consideration.”

Hogan also expressed himself positively.

“We are very optimistic about this bill,” Hogan told the News Service. “It follows other recently passed legislation addressing consent issues and will be an important addition to the legislative accomplishments of this session.”

A spokesman for the Senate Budget Committee, Senate Budget Committee Chairman Michael Rodrigues, declined to comment on whether the panel intends to vote on the bill this session.

“Every person should be able to live a life free from sexual assault, and the chairman and members of the Senate committee stand with victims,” ​​Rodrigues spokesman Sean Fitzgerald said in a statement. “As with all bills passed by the House, the Senate will carefully review the bill.”

Ryan said she was “very confident” the Senate would take up the bill.

“I hope this leads to some really good public conversations so that people become more aware of what is appropriate and when they can definitely come forward about something they’ve experienced,” Ryan said.