Tighter law on sexual assaults by doctors hits snag in Senate
MADISON – A bipartisan effort to address potential discrepancies in sentencing for doctors who sexually assault their patients has hit a snag in the state Senate following approval by the state Assembly months ago.
The bill, which aims to close a loophole in the law criminalizing such conduct, was set to receive a vote in a Senate committee two weeks ago but was removed from the schedule. Its advocates remain hopeful it can make it to Gov. Tony Evers’ desk by the fast-approaching end of the legislative session.
“I haven’t given up. It ain’t over ‘til it’s over,” co-author Rep. Barb Dittrich, ROconomowoc, told the Milwaukee Journal Sentinel.
“Time is running out,” Rep. Lisa Subeck, D-Madison, told the Journal Sentinel, but “time isn’t up yet.”
Under current law, it is a class C felony for “a person who is a licensee, employee, or nonclient resident of an entity that provides various welfare, foster, adoption, and health services, including a hospital, to have sexual contact or sexual intercourse with a client of the entity.” That designation applies to most health care providers, but it leaves room for some exceptions.
The proposed legislation would apply the same felony penalty to any health care provider recognized with a license or certification by state law who has “sexual contact or sexual intercourse with a patient (as defined by state law) to whom the health care provider is providing health care services during any treatment, consultation, interview, or examination.” Statutes define “patient” as “a person who receives health care services from a health care provider.”
Offenders could face up to 40 years in prison. They would also be required to register as sex offenders.
The bill’s authors cite a case that occurred in Madison several years ago. A former UW Health internal medicine doctor, Michael Thom, was charged in 2017 with second-degree sexual
assault by a health care employee (a class C felony) and fourth-degree sexual assault (a class A misdemeanor) after a female patient reported his actions as her physician to police.
According to Madison Police Detective Denise Armstrong, who handled the case, the patient reported that Thom had sent her nude photos of himself and touched her inappropriately during an exam. The patient reported that Thom had encouraged her to book appointments directly through him rather than the clinic’s scheduling service, and he started to schedule those appointments late in the day. He tended to use exam rooms that were close to his office and isolated from others.
During one visit, the patient reported, Thom licked her nipple, Frenchkissed her, made sexual comments and placed her hand on his penis.
But the felony charge was dropped because the incident occurred at a clinic that did not meet the definition of “entity” in the existing state law governing sexual assault by a health care provider. Thom ultimately pleaded guilty to the misdemeanor charge and surrendered his license.
The bill aims to apply a uniform standard to health care providers regardless of the entity for which they work.
“Sexual misconduct by a health care professional toward a patient should be treated the same regardless of locale. With the way our statute is written, the employer or the location of the incident can determine whether a health care provider has committed a felony or misdemeanor,” Subeck said during a public hearing on the bill.
There’s “nothing worse than being an investigator and having a case dismissed because of a loophole,” Dane County Sheriff Kalvin Barrett said in the same hearing.
The legislation was approved by the Assembly in June, but it has stalled in the Senate.
That’s because some lawmakers are concerned the bill doesn’t include language specifying that such an incident took place without a patient’s consent.
Ian Henderson, director of legal and systems services for the Wisconsin Coalition Against Sexual Assault, told lawmakers that’s how it should be, noting that other crimes in this category don’t include “consent” language. The doctorpatient relationship has an inherent power imbalance just like a corrections officer and an inmate or a law enforcement officer and a detainee, he said. In those situations, Henderson said, “consent is not possible.”
Requiring “consent” language would also put the burden on prosecutors to prove a lack of consent, Henderson said.
Some lawmakers have raised questions about what would happen if a doctor happened to treat his spouse, or met someone at a bar and pursued a sexual relationship. The bill’s authors argue they’ve worked through several amendments to make clear that the crime in question occurs when a patient is receiving care, and would not affect spousal relationships or activities outside the medical environment.
“It took us a long time to get to the right bill in the Assembly. We came forth with a bill that I had worked on with (the state Department of Justice), with the local district attorney, with outside folks to try to make sure we got it right,” Subeck said. “It was reviewed by folks at medical clinics. And even once we had that bill, we still had to make a number of amendments to get it through. And I think we got to something that actually is pretty damn good,” Subeck said. “Now, we’re stalled out … in a Senate committee that’s refusing to take a vote on the bill. And I think it’s a shame.”
Scott Kelly, chief of staff to committee chair Sen. Van Wanggaard, R-Racine, confirmed that the vote was pulled from the calendar earlier this month because of senators’ concerns with the lack of “consent” language.
“I understand that the authors are currently having conversations with committee members, and are hopeful that they can come to an agreement,” he said in an email.
Subeck said she thinks the bill is being held up by lawmakers “getting really tied in knots around a lot of what-ifs.”
“I gotta tell you that if you’re a woman who’s ever been vulnerable to a health care provider, you’re not asking those questions,” she said.
Dittrich said she and Subeck think the bill could be a “great bipartisan win.”
“Hopefully the senators will see it the same way in short order,” Dittrich said. “Because I really believe that the governor will sign this if we get it to him this session. And wouldn’t we want this for every patient in Wisconsin?”