State lawmakers fighting to close ‘legal loophole’ shielding doctors from criminal prosecution

BOSTON — State lawmakers and prosecutors are still fighting to close what they say is a “legal loophole” shielding doctors from criminal prosecution.

As 25 Investigates has reported for three years, some doctors accused of sexual assault are protected by the loophole. A bill that would update Massachusetts law to better protect victims is on the move at the State House.

"You've sought this person out because you want their help. So when they tell you something is part of a course of treatment for you, your inclination is going to be to accept that," said Middlesex County District Attorney Marian Ryan.

Ryan says some Mass. doctors are getting away with sexual assault by claiming what they’re doing to a patient is medically necessary and gaining a patient’s “consent.”

"Because there has been some kind of consent, albeit because you thought you were helping get yourself treatment we cannot prosecute that," said Ryan.

It's a loophole in the state law that Ryan and some lawmakers have been trying to address for years.

Until then, Ryan says prosecution in these cases goes nowhere.

25 Investigates' Kerry Kavanaugh asked Ryan "What is that like to for you to deliver that message to the victim of sexual assault?"

"It's really another blow," Ryan responded.

In 2018, 25 Investigates spoke with a young man who said his doctor, a prominent orthopedic surgeon, made him take off all his clothes, lie on his back, stand up, and bend over in the nude - all to examine his knee.

"Everybody said what happened to you was awful, but we can't do anything about it because of this law," the victim told us.

>> Previous from 25 Investigates: Doctors accused of sexual assault shielded by legal loophole

25 Investigates was there in 2019 when the bill was introduced to the Judiciary Committee.

Rep. Kate Hogan told us last year, "This bill has the power to change the narrative about power and consent to say to victims, no more."

"When that trust relationship is broken in order to commit an indecent assault and battery or rape that needs to be punished and it needs to be punished seriously," said State Senator Bruce Tarr.

Ryan says what they're proposing is a simple fix that could have a major impact on victims.

“First of all they sought out treatment from a professional who they wanted to help them and that person betrayed that trust. Now they come to us, a place that they should be protected, and we have to tell them that the law doesn’t contain a carve-out for this,” said Ryan.

So the legislation was voted out of the Judiciary Committee and it is now being reviewed by the House Committee on Steering, Policy and Scheduling

Hogan told Kavanaugh she’s doing everything she can to keep it a top priority this session, which ends in Jury. If the Speaker doesn’t take it up before then, it dies. She sent us the following statement:

“In partnership with Middlesex District Attorney Marian Ryan and Senator Bruce Tarr, we are continuing our work to update Massachusetts sexual assault laws in order to clearly outline the crime of medical professionals claiming sexual contact for a medical purpose. The bill I sponsored, HB1436, An Act criminalizing sexual assault by fraud of a medical professional, was favorably reported out of the Joint Committee on Judiciary earlier this month and is currently being reviewed by the House Committee on Steering Policy and Scheduling. I continue to speak with my colleagues and those in Leadership to ensure the bill remains a top priority this session.”

—  Representative Kate Hogan (D-Stow)

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