Physicians college appealing doctor’s assault of teen
Regulator says discipline panel relied on gay-male stereotypes in deciding against penalty
“It is unacceptable to use stereotypes to conflate sexual orientation, including difficulties ‘coming out’ and sexual assault.” ELISABETH WIDNER AND SIMMY DHAMRAIT-SOHI
COLLEGE OF PHYSICIANS LAWYERS
Ontario’s medical regulator argues its discipline committee relied on a stereotype about gay men in its decision not to punish a doctor who admitted to sexually assaulting a 16-year-old boy.
The College of Physicians and Surgeons of Ontario is now appealing that decision handed down last year by a majority of its independent discipline committee in the case of Toronto doctor Farooq Ali Khan.
The majority had rejected a joint submission made by the college’s and Khan’s lawyers that he should face a 12-month suspension for professional misconduct, related to the 2009 sexual assault while Khan was a medical resident and for which he had already pleaded guilty in criminal court.
After reviewing evidence from mental health experts, the majority on the panel found that it was a single offence that happened “in the remote past,” that it was “impulsive,” that Khan was at a low risk to reoffend and that he has shown remorse for his actions.
“There is another delicate issue to consider. The assault took place when Dr. Khan was a young gay man struggling to express his identity in particularly trying circumstances,” wrote the three majority members, Drs. Deborah Hellyer and Harvey Schipper and community member Major Abdul Hafeez Khalifa.
They continued: “It is important to be clear that this is mentioned not to excuse the offence, only to contextualize it … The committee gives some recognition to the fact that prejudicial social pressures which, in recent years, our society has made strides in relieving, did play a role here.”
Lawyers specializing in sexual assault said at the time that the discipline committee’s decision perpetuated a “dangerous” stereotype linking homosexuality and sexual assault — an argument that now forms part of the college’s appeal.
The college is asking the Divisional Court to either impose the 12-month suspension originally requested, or send the case back to the discipline committee “to impose a fit penalty.”
Khan’s lawyers say the appeal should be dismissed, arguing the committee did not rely on stereotypes and its decision accurately reflected the expert evidence heard during Khan’s penalty hearing.
The court is hearing the appeal on March 15.
“It is unacceptable to use stereotypes to conflate sexual orientation, including difficulties ‘coming out,’ and sexual assault,” college lawyers Elisabeth Widner and Simmy Dhamrait-Sohi say in their written arguments filed with the court.
They argue that the panel disregarded expert evidence, particularly testimony of two psychiatrists — one with expertise in LGBTQ issues and the other with expertise in sexual violence — who said there is no correlation between homosexuality and sexual assault.
“The stereotype causes harm in two ways. First, it perpetuates the notion that there is an equation between sexual orientation and sexual assault of minors,” the college argues.
“Second, it minimizes the seriousness of the sexual assault by attempting to explain and ‘contextualize’ a serious sexual assault on the basis of stereotypical and unfounded attitudes, namely; that the respondent, at least in part, acted as he did due to the difficulties he experienced in being a young, gay man in a prejudiced and difficult environment.”
Khan had admitted before the discipline committee to an allegation of “having been found guilty of an offence that is relevant to his suitability to practise” — related to the fact that he pleaded guilty in court in 2015 to a criminal charge of sexual assault.
He received an absolute discharge in court, meaning he didn’t get a criminal record as a result of the guilty plea and didn’t have to serve a sentence.
The charge related to a 2009 incident in which a then-24-year-old Khan, who was a medical resident at the time, was sleeping over at the home of a 16-yearold boy identified as AB in the discipline panel’s ruling last year.
The two were sharing a bunk bed, and one night Khan went down to the bottom bunk and fondled AB while masturbating, believing him to be asleep, according to the discipline panel’s decision.
Khan’s appeal lawyers, Eli Mogil and Adam Goldenberg, say there was testimony from mental health experts, such as from Khan’s psychotherapist, that his conduct reflected “self-hatred” in the form of “repressed homosexuality.”