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Gynecologists and sexual battery: when a doctor crosses the line

Posted by Neil Shouse | Jul 11, 2016 | 0 Comments

Many women are resigned to an uncomfortable experience when they go to the gynecologist. But what happens when a doctor takes advantage of a patient's vulnerability?

Every year, a surprising number of doctors are accused of sexual battery and/or invasion of privacy. So when exactly does a doctor's behavior cross the line?

Was there intent?

It is not enough that a doctor did something to you that felt embarrassing, intrusive or painful, or even that he or she did not discuss it with you first. While doctors are encouraged to discuss what they are doing with patients, an exam is criminal or actionable only when it has no valid purpose and is done for sexual gratification.

Most states are not explicit when it comes to defining sex crimes in the specific context of a medical exam. However, laws against sexual assault and sexual battery are usually broad enough to encompass the most egress situations. Take, for instance, California's law on sexual battery, which makes it a crime to touch someone's genitals, anus, groin, or buttocks, or a female's breasts, for the purpose of sexual arousal, sexual gratification, or sexual abuse.1

Other states, however, do specifically address medical exams. Under Colorado's sex crimes laws, for example, a doctor can be charged with sexual assault or unlawful sexual contact if he or she:

  • knowingly
  • inflicts penetration or intrusion on a victim (sexual assault) or sexually touches a victim (sexual contact)
  • while:
    • purporting to offer a medical service, or
    • engaging in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices.2

And these states are not alone in holding doctors to a high ethical standard of behavior.

Real-life examples

How do I protect myself?

While it is often difficult to identify a problem doctor or patient, here are five steps physicians and patients can take:

  1. Before the exam starts, doctor and patient should discuss what it will consist of;
  2. The doctor should offer (and the patient should ask for) a nurse or other female medical professional to be present during the exam;
  3. The parties should refrain from personal conversation during the physical portion of the exam;
  4. The patient should always wear a gown during the exam; and
  5. The doctor should always wear gloves.

And finally, if a legitimate attraction between doctor and patient exists, the doctor should refer the patient to another physician. Both the American Medical Association and the American Congress of Obstetricians and Gynecologists advise that sexual contact or a romantic relationship between a physician and a current patient is always unethical, even if consensual.3

Being a victim of, or being accused of, a sex crime can ruin someone's life. If you believe you have been a victim of a sexual assault while at the doctor, call the police. And if you are a doctor who has been accused of inappropriate behavior with a patient, do not wait and think it will blow over. Contact the best sexual assault lawyer you can right away.

Legal references:

  1. California Penal Code 243.4 (c) PC
  2. Colorado Revised Statutes, 18-3-402 (1)(g), C.R.S., and 18-3-403 (1)(g), C.R.S.
  3. See AMA Opinion 8.14 - Sexual Misconduct in the Practice of Medicine; ACOG Opinion 8.21 - Use of Chaperones During Physical Exams.  

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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