Lying prone with your feet up in stirrups creates a sense of vulnerability like no other. The case of U.S. gymnastics team doctor Larry Nassar brought the reality to light of how easy it is for doctors to get away with abuse. Now, a new bill is pending on Beacon Hill that would criminalize sexual assault by medical providers who pretend to be conducting a medical procedure. One of the bill's backers is Middlesex County District Attorney Marian Ryan. She spoke with WGBH All Things Considered anchor Barbara Howard about the bill. This transcript has been edited for clarity.
Barbara Howard: You would think that doctors, like anyone else, are subject to the standards and the laws on the books when it comes to indecent assault and rape. But that's not so?
District Attorney Marian Ryan: Well, what happens is, in order to prove a sexual assault or a rape, the Commonwealth is required to show one of two things: either force was used to get consent, or that the victim gave consent unwillingly. And what has happened in these cases is the Supreme Judicial Court has said that even though that consent to the touching was gained because the victim believed it to be part of a procedure, they still gave consent and therefore, it is not either an indecent assault and battery or a rape.
Howard: So what you're saying is that if a patient consents, the patient believing that the touching is necessary for treatment, that prevents you from prosecuting?
Ryan: Yes.
Howard: So what is this bill going to be doing to change that?
Ryan: So the bill would say that if we have consent that’s obtained by a medical professional through fraud — the fraud being, I'm telling you that we need to do this for whatever it is you're seeking treatment for — that that consent will not count as a valid consent.
Howard: So it's specific to the medical profession.
Ryan: Yes. The bill provides a long list of medical professionals that are covered by the bill.
Howard: And who are those? Are you talking about doctors, nurses? Who else?
Ryan: All of those — nurse practitioners, different specialties, anyone that would be in a position where they could tell someone, 'You need to do this, or allow me to do this, as part of your treatment.'
Howard: How often does your office see cases where doctors are taking advantage of a patient while pretending that what they were doing is medically necessary?
Ryan: We get a good number every year, and it's incredibly frustrating because not only has the victim's trust been violated by their medical professional, but now they've turned to law enforcement for help, and we have to say, 'We can't help you.'
Howard: Where are you seeing this the most? What kinds of practitioners are the biggest category of abusers?
Ryan: Well, we've seen it a lot in the OB-GYN fields, where someone goes for either treatment of some kind of problem that they're having, or where someone goes seeking advice because they want to get pregnant. This is not just a women's problem. We've also seen it, for instance, with young men who may go to an orthopedist or some such person seeking treatment for a sports injury and are suddenly being told to remove their clothing to permit touching of the genital area as part of the treatment.
Howard: So it's adults and children, women and men?
Ryan: Right, it affects everybody.
Howard: So if a medical provider is found guilty of this kind of inappropriate touching, what kind of prison sentences are we looking at?
Ryan: So for an indecent assault and battery, which is something short of penetration, they could receive a sentence of up to five years. And for an act of rape, actual sexual penetration, they could receive a sentence of up to 20 years.
Howard: Now is there a danger, though, that a medical provider providing legitimate treatment could wrongly be ensnared by the new law?
Ryan: Obviously that would be a defense if someone were able to demonstrate what it was that they were doing, and why it's some recognized practice for treating the patient's problem.
Howard: What's the status of the bill now?
Ryan: We just had a hearing on the bill, and hopefully it will now be reported favorably out of the Judiciary Committee and make its way through the House. There's a similar corresponding bill in the Senate, hopefully that will go through the same process.
Howard: That's Middlesex County District Attorney Marian Ryan.
