Summary
Massachusetts has recently joined the movement to criminalize the act of rape by fraud committed by medical professionals who abuse their position of power and sexually exploit their patients. This blog post addresses the scope of the issue of patient sexual assault, the pitfalls of the Massachusetts rape statute, and how the Commonwealth is–and is not–acting to protect victims.
By: Hannah Hubler, JHBL Staffer
Rarely is an individual more vulnerable than when laying on their back in a johnny, feet in stirrups, with a modest sheet of paper covering their lower half.[1] The inherently unequal dynamic between the physician and the patient renders the strict prohibition against sexual relations with patients paramount in medical ethics.[2] Furthermore, trust between patient and medical provider is a necessary component of a healthy society.[3] Neither of these considerations, however, deter some medical professionals from abusing that trust, violating the Hippocratic oath, and sexually assaulting their patients.[4]
Like other forms of sexual abuse, many cases of sexual assault by a medical provider go unreported, making the precise scope of the problem difficult to discern.[5] Disciplinary actions may appear to be an indicator of frequency, but likely underestimate the breadth of the issue.[6] While rare, these egregious offenses do occur in the Commonwealth of Massachusetts.[7] When medical provider sexual misconduct cases are reported to disciplinary authorities, hospitals and healthcare organizations routinely ignore or circumvent reporting requirements.[8] If the case makes it to the medical board, it may not be acted on due to a lack of material evidence or witnesses.[9] In many states, when a medical professional induces a patient to engage in sexual intercourse under the guise of legitimate medical care, these actions are often not punished criminally.[10]
The problem lies within the elements of the offense.[11] In order to successfully bring a claim of rape in Massachusetts, the Commonwealth must prove that the sexual intercourse occurred by force and against the victim’s will.[12] The condition that the intercourse be “by force” effectively created a loophole for physicians who could procure consent for the purposes of medical examination or treatment.[13] Likewise, clergy members could obtain consent by claiming the contact was necessary for spiritual counseling.[14]
In August of 2024, Massachusetts joined over twenty-six other states in criminalizing both sexual assault and rape by fraud by a medical professional.[15] The Act, which goes into effect on November 6, 2024, amends the General Laws to include the offense of deceiving a patient into sexual intercourse or touching under the pretense of a legitimate medical purpose.[16] The legislation seeks to fill the gap in current law by eliminating traditional consent elements of the crime, such as force, if the sexual contact was procured by a false representation in a medical context.[17] It assumes the patient in these circumstances is incapable of consenting.[18] The amendment punishes medical providers and clergy members for fraudulently induced assault by up to five years by imprisonment and up to twenty years imprisonment for fraudulently induced sexual intercourse.[19]
There are multiple factors which likely contributed to the need for legislative action, none of which are unique to sexual assault by fraud.[20] First, is the prosecutor’s high burden to prove lack of consent.[21] Second, unsurprisingly, is the issue of insufficient evidence.[22] This is not an uncommon hurdle in sexual assault prosecutions; insufficient evidence to demonstrate a lack of consent turns numerous sexual assault cases “cold” each year.[23] Where there is scant proof of the offense, courts, much like medical disciplinary boards, may dismiss the case, reverse a conviction, or order a new trial.[24] While this difficulty is prevalent in all “he said, she said” cases, it proves to be a particularly daunting hurdle in consent-by-fraud cases where evidence largely relies on reports and statements from the victim and witnesses to prove behaviors inconsistent with consent.[25]
The third factor: a deep, societal distrust of victims of rape.[26] “[I]t is not rape when consent to sexual intercourse is obtained through fraud or deceit,” held the Supreme Judicial Court in 2007, reaffirming a 1959 interpretation of the Massachusetts rape statute which has not since been amended.[27] In that case, Suliveres v. Commonwealth,[28] a woman mistakenly consented to sex with her boyfriend’s brother, who had impersonated her boyfriend to obtain consent to sexual intercourse.[29] The Court, bound by the “force” element, encouraged the legislature to amend the statute or create a new offense to encompass the conduct at issue, if it felt the conduct was rape.[30] The legislature chose not to amend the statue, but rather, pass a wholly new offense which created a very narrow exception for medical providers and clergy members.[31] This choice underscores a larger issue in the Bay State.[32] Certainly, rape that occurred at the hands of a medical provider is abhorrent.[33] But why not eliminate the element of force altogether?[34] Is it not sufficient that the intercourse be against the victim’s will for a rape to occur?[35] Perhaps, looking at the facts of the Suliveres case, the legislature–and maybe even you, the reader–thought it wise to criminalize a separate offense for medical providers and clergy members to prevent alleged victims with an ulterior motive from claiming fraud.[36] In that case, the author of this article implores you to re-read the first sentence of this paragraph.[37]
Undoubtedly, the Act is a win for victims of sexual assault by fraud of a medical professional and should be lauded as such.[38] Yet, it has been over sixty-five years since the Court interpreted the narrow language of the rape statute to generally preclude rape by fraud due to the force requirement, and, as the Court duly noted in 2007, the statute remains unchanged.[39] This is not the product of an inefficient legislature.[40] It is the product of widespread disbelief of victims of sexual crimes, even in the twenty-first century.[41] The problem as it relates to medical professionals has been remediated by the state legislature, yet the stigma surrounding rape allegations has not.[42] It is important to celebrate the passing of the Act, but also to recognize what the legislature’s selective punishment implicitly conveys to other victims of rape, in the presence or absence of fraudulent circumstances: we do not believe you.[43]
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Hannah Hubler is a second-year law student at Suffolk University Law School interested in appellate work and litigation. She received her Bachelor of Art summa cum laude from Suffolk University with a major in Law and a minor in English Literature.
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[1] See Laura Sossauer et al., Vulnerability Identified in Clinical Practice: A Qualitative Analysis, BMC Med. Ethics (Nov. 27, 2019), https://bmcmedethics.biomedcentral.com/articles/10.1186/s12910-019-0416-4 [https://perma.cc/8X97-V23Y]. Patient vulnerability can arise due to the “mismatch” between doctor and patient, or patient and the medical system at large. Id.
[2] See Azza AbuDagga et al., Time to End Physician Sexual Abuse of Patients: Calling the U.S. Medical Community to Action, 34 J. Gen. Internal Med. 1330 (2016).
[3] See id; see also Steven D. Pearson & Lisa H. Raeke, Patients’ Trust in Physicians: Many Theories, Few Measures, and Little Data, 15 J. Gen. Internal Med. 509 (2000) (describing trust as central to the patient-physician relationship). “[T]rust in physician increases the likelihood of adhering to treatment recommendations.” Id.
[4] See AbuDagga et al., supra note 2, at 1331.
[5] See id.
[6] See id.
[7] See generally Commonwealth v. Goldenberg, 155 N.E.2d 187 (Mass. 1958) (physiotherapist rape of patient by fraud); Roe v. Fed. Ins. Co.,587 N.E.2d 214 (Mass. 1992) (dentist sexually assaulted patient during course of treatment); Roe No. 1 v. Children’s Hosp. Med. Ctr., 16 N.E.3d 1044 (Mass. 2014) (doctor performed unnecessary genital examinations at Boston Children’s Hospital); Doe v. Hosp. Med. Corp., 36 N.E.3d 1258 (Mass. App. 2015) (hospital interpreter sexually assaulted patient). In Goldenberg, the defendant was tried for raping a pregnant, nineteen-year-old woman who sought procurement of an abortion. 155 N.E.2d. at 190. The defendant claimed that the sexual intercourse would assist in the treatment. Id. The Court, restricted by the “force” requirement of the rape statute, held that rape by fraud is not rape in the Commonwealth. Id. at 191-92.
[8] AbuDagga et al., supra note 2.
[9] See id.
[10] See An Act Criminalizing Sexual Assault by Fraud by A Medical Professional, Middlesex Cnty. Dist. Att’y’s Off., https://www.middlesexda.com/public-information/pages/act-criminalizing-sexual-assault-fraud-medical-professional#:~:text=Under%20existing%20law%2C%20when%20a,behavior%20cannot%20be%20punished%20criminally [https://perma.cc/K8CP-JPSE].
[11] See Mass. Gen. Laws ch. 265, § 22(b); see also Governor Healey Expands Protections for Victims of Sexual Assault by Health Care Providers, Mass.gov (Aug. 9, 2024), https://www.mass.gov/news/governor-healey-expands-protections-for-victims-of-sexual-assault-by-health-care-providers [https://perma.cc/TK5T-2SL9]; An Act Criminalizing Sexual Assault by Fraud by A Medical Professional, supra note 10.
[12] See Mass. Gen. Laws ch. 265, § 22(b).
[13] See Jacqueline Syrnick, Case Comment, Challenging the Use of Fraud to Get into Bed After Suliveres v. Commonwealth–A Call for Legislative Reform, 43 New Eng. L. Rev. 321, 333 (2009).
[14] See Governor Healey Expands Protections for Victims of Sexual Assault by Health Care Providers, supra note 11.
[15] See id.; An Act Criminalizing Sexual Assault by Fraud by A Medical Professional, supra note 10.
[16] See Governor Healey Expands Protections for Victims of Sexual Assault by Health Care Providers, supra note 11; see also Massachusetts Law About Rape and Sex Crimes, Mass.gov, https://www.mass.gov/info-details/massachusetts-law-about-rape-and-sex-crimes[https://perma.cc/V8AE-P4YJ].
[17] See Governor Healey Expands Protections for Victims of Sexual Assault by Health Care Providers, supra note 11; An Act Criminalizing Sexual Assault by Fraud by a Medical Professional, supra note 10.
[18] See Governor Healey Expands Protections for Victims of Sexual Assault by Health Care Providers, supra note 11. The term “medical provider” definitionally includes doctors, physical therapists, dentists, nurses, optometrists, social workers, and acupuncturists among others. See H. 4350, 193rd Gen. Ct., 1st Sess. (Mass. 2024) (enacted).
[19] See H. 4350, 193rd Gen. Ct., 1st Sess. (Mass. 2024) (enacted). Similar statues exist in other states. See, e.g., Idaho Code § 18-919; Cal. Penal Code § 243.4 (c). Idaho, for example, punishes sexual exploitation by a medical provider by up to a year of imprisonment in county jail. See Idaho Code § 18-919. California punishes the crime by imprisonment for two, three, or four years. Compare Cal. Penal Code § 243.4 (c) with Mass. Gen. Laws ch. 167, § 7.
[20] See Syrnick, supra note 13. See generally An Act Criminalizing Sexual Assault by Fraud by a Medical Professional, supra note 10(providing reasons for legislative action).
[21] See Commonwealth v. Russell, 23 N.E.3d 867, 871 (Mass. 2015) (citing Commonwealth v. Pinckey, 644 N.E.2d 973 (Mass. 1995)) (holding due process requires Commonwealth prove defendant’s guilt beyond reasonable doubt).
[22] See Overcoming the Consent Defense: Prosecuting the Known Offender, Sexual Assault Kit Initiative, https://www.sakitta.org/toolkit/docs/Overcoming-the-Consent-Defense-Prosecuting-the-Known-Offender.pdf [https://perma.cc/A6BQ-F66D].
[23] See id.
[24] See, e.g., Commonwealth v. Torres, 57 N.E.3d 1065, 1067 (Mass. App. 2016) (reversing rape conviction for insufficient evidence).
[25] See Overcoming the Consent Defense: Prosecuting the Known Offender, supra note 26; see also Goldenberg, 155 N.E.2d at 191 (reasoning rape did not occur). “There was ‘no act of violence, no struggle, no outcry, and no attempt to restrain or confine the person which constitute the usual and essential evidence’ of rape.” Goldenberg, 155 N.E.2d at 191 (citing Commonwealth v. Merrill, 14 Gray 415, 417 (Mass. 1860)).
[26] See Barbara Bradley Hagerty, An Epidemic of Disbelief, Atlantic (July 22, 2019), https://www.theatlantic.com/press-releases/archive/2019/07/an-epidemic-of-disbelief-august-issue/594145/ [https://perma.cc/B79L-QED6]. To state that disbelief of victims is prevalent in American society would be an understatement. See id. According to the Department of Justice, a rape or attempted rape occurs every five minutes in the United States. See Rape Culture, Victim Blaming, and the Facts, S. Conn. State Uni. Inside S., https://inside.southernct.edu/sexual-misconduct/facts [https://perma.cc/722Q-WSU2]. Yet, forty nine out of every fifty rape cases in the United States result in acquittal. See Bradley Hagerty, supra.
[27] Suliveres v. Commonwealth, 865 N.E.2d 1086, 1087 (Mass. 2007).
[28] 865 N.E.2d 1086 (Mass. 2007).
[29] See id. at 1088.
[30] See id. at 1090.
[31] See Mass. Gen. Laws ch. 265, § 22(b); Suliveres, 865 N.E.2d at 1090.
[32] See Bradley Hagerty, supra note 30. The focus in rape cases is almost always on the characteristics and credibility of the victim–not necessarily the guilt of the perpetrator. Id.
[33] See AbuDagga et al., supra note 2; An Act Criminalizing Sexual Assault by Fraud by a Medical Professional, supra note 10.
[34] See Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brooklyn L. Rev. 39, 132-34 (1998) (analyzing force and nonconsent elements of rape). There is much disagreement over whether force and nonconsent were historically elements of the offense at common law, the policy reasons behind rape law, the extent and meaning of force, the meaning of consent, the relationship between force and nonconsent, and ultimately, whether rape is a violent crime, or a crime that occurs when one’s autonomy is violated. Id.
[35] See id.
[36] See generally Suliveres, 865 N.E.2d 1086 (determining that fraudulently obtaining consent to sexual intercourse does not constitute rape).
[37] See generally Bradley Hagerty, supra note 30 (discussing widespread disbelief of victims of rape).
[38] See An Act Criminalizing Sexual Assault by Fraud by a Medical Professional, supra note 10; Governor Healey Expands Protections for Victims of Sexual Assault by Health Care Providers, supra note 11.
[39] See Mass. Gen. Laws ch. 265, § 22(b); Suliveres, 865 N.E.2d at 1090.
[40] See H. 4350, 193rd Gen. Ct., 1st Sess. (Mass. 2024) (enacted); Bill H.4350, 193rd Gen. Ct. Commonwealth Mass. Comm. Vote Bill Hist., https://malegislature.gov/Bills/193/H4350/CommitteeVote [https://perma.cc/53A7-QSJY]. The Act was passed without opposition, in the span of a couple years. Bill H.4350, supra. The Act, then a bill, was first introduced to the House in 2019, and was signed and effective in 2024. Id.
[41] See generally Bradley Hagerty, supra note 30.
[42] See id.; see also H. 4350, 193rd Gen. Ct., 1st Sess. (Mass. 2024) (enacted).
[43] See Bradley Hagerty, supra note 30.