Monday, July 14, 2014

Patient Dignity 01: Can a Physical Exam be an Act of Rape?

 Before you read this post, please read my Preface here:

Before you say "I know where you are going with this," "unlawful touching of a patient is battery," and "there are lawful instances where a medical professional may touch a patient against their will," I ask that you read on. My goal is to get you to think.... 

I realize that all people are different, view, and handle experiences differently. 

I am NOT accusing any providers of inappropriate behavior. I do NOT believe that providers are rapists, abusers, evil being whom we need protected from lest they assualt us when we are vulnerable I do believe that they are following the self-serving culture of the American medical system. 

Don't believe me? Then scroll about half way down and "Take the Test" (in blue).

Definitions of Assault and Battery

Assault and battery often bring up images of the typical fight or brawl, and some states combine the two offenses. However, the terms are actually two separate legal concepts with distinct elements. In short, an assault is an attempt or threat to injure another person, while a battery would be actually contacting another person in a harmful or offensive manner. Below is a more in-depth look at both offenses and their elements, which helps explain how these two offenses are so closely tied together.

Assault: Definition  The definitions for assault vary from state-to-state, but assault is often defined as an attempt to injure to someone else, and in some circumstances can include threats or threatening behavior against others. One common definition would be an intentional attempt, using violence or force, to injure or harm another person. Another straightforward way that assault is sometimes defined is as an attempted battery. Indeed, generally the main distinction between an assault and a battery is that no contact is necessary for an assault, whereas an offensive or illegal contact must occur for a battery.

Assault: Act Requirement  Even though contact is not generally necessary for an assault offense, a conviction for assault still requires a criminal "act". The types of acts that fall into the category of assaults can vary widely, but typically an assault requires an overt or direct act that would put the reasonable person in fear for their safety. Spoken words alone will not be enough of an act to constitute an assault unless the offender backs them up with an act or actions that put the victim in reasonable fear of imminent harm.

Assault: Intent Requirement  In order commit an assault an individual need only have "general intent". What this means is that although someone can't accidentally assault another person, it is enough to show that an offender intended the actions which make up an assault. So, if an individual acts in a way that's considered dangerous to other people that can be enough to support assault charges, even if they didn't intend a particular harm to a particular individual. Moreover, an intent to scare or frighten another person can be enough to establish assault charges, as well.

Battery: Definition  Although the statutes defining battery will vary by jurisdiction, a typical definition for battery is the intentional offensive or harmful touching of another person without their consent. Under this general definition, a battery offense requires all of the following:  intentional touching; the touching must be harmful or offensive; no consent from the victim.

Battery: Intent Requirement  It may come as some surprise that a battery generally does not require any intent to harm the victim (although such intent often exists in battery cases). Instead, a person need only have an intent to contact or cause contact with an individual. Additionally if someone acts in a criminally reckless or negligent manner that results in such contact, it may constitute an assault. As a result, accidentally bumping into someone, offensive as the "victim" might consider it to be, would not constitute a battery.

Battery: Act Requirement  The criminal act required for battery boils down to an offensive or harmful contact. This can range anywhere from the obvious battery where a physical attack such as a punch or kick is involved, to even minimal contact in some cases. Generally, a victim doesn't need to be injured or harmed for a battery to have occurred, so long as an offensive contact is involved. In a classic example, spitting on an individual doesn't physically injure them, but it nonetheless can constitute offensive contact sufficient for a battery. Whether a particular contact is considered offensive is usually evaluated from the perspective of the "ordinary person".

The Federal Definition of Sexual Assault (Rape)


States have purged the word “rape” from their criminal codes entirely. The first to do so was Michigan in 1975 — it’s now one of 25 states, along with the District of Columbia and the Federal Government, that don’t use the word in their codes at all. The idea of the movement was to have the public think of these crimes not as being about sex, but about violent assault.

Let me start with the Federal definition of sexual assault (18 U.S. Code Chapter 109A - SEXUAL ABUSE). Instead of rehashing it, I will refer to it at Cornell University's Law School web site here:

I chose the Federal definition because the State definitions vary, but a person can be convicted of the Federal Statute in all states. A Comparison of Sexual Assault Statutes of All 50 States (in a Word document format) can be found here:

Recently, the FBI has updated their 80-year-old definition of rape for the Uniform Crime Reporting (UCR) Program. The new definition is:
"Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." Source: FBI website
The revised definition includes any gender of victim or perpetrator, and includes instances in which the victim is incapable of giving consent because of temporary or permanent mental or physical incapacity, including due to the influence of drugs or alcohol or because of age. The ability of the victim to give consent must be determined in accordance with state statute. Physical resistance from the victim is not required to demonstrate lack of consent. The new definition does not change federal or state criminal codes or impact charging and prosecution on the local level. 
The longstanding, narrow definition of forcible rape, first established in 1927, is “the carnal knowledge of a female, forcibly and against her will.” It thus included only forcible male penile penetration of a female vagina and excluded oral and anal penetration; rape of males; penetration of the vagina and anus with an object or body part other than the penis; rape of females by females; and, non-forcible rape. Source: Department of Justice, press Release Friday, January 6, 2012 by office of Attorney General Eric Holder

The revised definition of rape by the FBI is the realization that sexual assault is gender neutral and not just "penile penetration of a female vagina and excluded oral and anal penetration." To put that in perspective that definition of rape was established in 1927, interracial marriage finally was legalized in all 50 states in 1967 (see LOVING v. VIRGINIA, 388 U.S. 1 (1967), Full text of the opinion courtesy of Findlaw.com ).  I think medicine of the mind and body has progressed since 1927.

Key Points on the Federal Definition of Sexual Assault

Here are the key points I want to focus on from the Federal definition of sexual assault:
  • Sexual Act (definition) — the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; OR
  • Sexual Act(definition) — the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
  • Sexual Contact (definition) — the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person
  • By Force or Threat (definition) — by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping
  • By Other Means (definition) — renders another person unconscious and thereby engages in a sexual act with that other person; OR
  • By Other Means (definition) — administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the ability of that other person to appraise or control conduct; and engages in a sexual act with that other person;

Why use the term Rape?

I prefer the term "rape." It is a very emotionally charged word. It means a lot to victims and to society.  Victims of "sexual assault" and their families believe if a person is violated or forced to engage in a sexual act against their will, the word they use is "rape."

The FBI chose to keep the term "rape" (and make it all inclusive) because it reflects the heinous nature of sexual assault, puts to shame the areas that have high incident rates, and reflects what the victims have gone through.

The Federal Government and State Governments are using the term "sexual assault,"  making it all inclusive and keeping the 1927 definition rape unchanged. This is an insult to victims because it seems to invalidate what they have experienced.

Most people would consider groping someone through their clothes a "sexual assault." While anal penetration of a man or woman, by a penis or object would be considered a severe form of sexual assault labelled as "rape." Let me illustrate:
Victim: The perpetrators were convicted of the crime of sexual assault against me.
Average Person: So what does that mean, they grabbed your ass?
Victim: No, they held me down, ripped my clothes off, and raped me with a beer bottle...

Summary of the Definition

Sexual assault includes any forced act against one's will where sex is the weapon. This can include, but is not limited to:

  • the unwanted touching of an intimate part of another person 
  • forced penetration of the genitalia or anus by a foreign object including digits (fingers and toes)
Whether or not specifically stated, it is an element of every sexual assault that the act was committed without consent of the victim.  Lack of consent can result from forcible compulsion.

Forcible compulsion means to compel by either use of physical force or a threat, express or implied, which places a person in fear of immediate death or physical injury to self or others.

I am sure that I do not need to go any further. We all have an idea what sexual assault is.

Why Do We have Laws? 

  1. To protect members of society from aggression or harm and preserve their rights. 
  2. To establish the rules needed for a society to live and work together. 
  3. To ensure that justice has been served.
  4. To maintain social order.
Why do we need to protect people from harm? Because people who are injured or damaged may no longer be able to contribute to society, society (morally) has a duty to care for these people, and it is a basic human right to be free from harm. Basically the same reasons that we have the Emergency Medical Treatment and Labor Act (EMTALA).

I do not think that I have to elaborate further.

Restitution
Federal law (18 U.S. Code § 2248)  requires mandatory restitution. Restitution is defined as any costs incurred by the victim for:
  • medical services relating to physical, psychiatric, or psychological care;
  • physical and occupational therapy or rehabilitation;
  • necessary transportation, temporary housing, and child care expenses;
  • lost income;
  • attorneys’ fees, plus any costs incurred in obtaining a civil protection order; and
  •  any other losses suffered by the victim as a proximate result of the offense.
The purpose of this is to help restore the person to the state they were at before the infraction or compensate for any losses. 

Again, I do not think that I have to elaborate any further.

Take the Test...
     A 19 year old girl was at a party. It was late and she was very tired. She had one alcoholic drink, but was not impaired. She had fallen asleep three times, and finally asked her friend to take her home. She describes what happened next...
     I asked for a ride and she agreed, just as soon as she said her good byes. I started dozing off again. I awake to find myself on a bed. The light above me is bright and there are a bunch of people standing around me. They are taking my clothes off of me. I tell them to stop, but they do not. I try to fight back, but they are holding me down telling me not to resist and to stop fighting. They are touching me everywhere, I want them to stop. I can feel my self naked, being exposed makes me feel cold. I want to cover up, but they are holding my hands.
     I can feel them inside me. I scream for them to stop and try to fight. but they have me tied down. Then they start putting things in me, I don't know what they are. This feels like a bad dream, I am so afraid, I feel light headed and pass out. I awake in a hospital bed. I want to leave. I do not want anyone to know what happened to me. I want to get a shower, wash away what happened. I can feel my self naked, being exposed makes me feel cold. I want to cover up, but they are holding my hands.
     This is my fault. People are going to blame me for this. I should not have fallen asleep. I should not have gone. I should have just closed my eyes and pretended it was not happening. Maybe it would have been over faster if I did not fight back. I can't let anyone know, I will just say "I am fine and want to go home" if anyone asks.
     I can't remember everything that happened, but all I want to do is to forget.
 

Question: What situation is this girl describing?
  • A:) She fell asleep waiting for a ride and a bunch of drunk people took her in to a bedroom and gang raped her? 
  • B:) Her friend got in to a car accident, she awoke in the Emergency Department in the middle of a trauma exam?
  • C:) She was gang raped after falling asleep at the party then taken to a hospital after found by friends, having visible injuries.  
Answer at the bottom:

Point of View

Here is where you start to think. Let us take away intent. We can not read minds, but we can observe actions. 

Lets look at a sexual assault from the eyes of the victim. I am restrained, stripped naked, looked at by people I don't know, touched, penetrated, rendered unconscious, all against my will

How is the view of the rape victim different from the view of the patient taken to the Emergency Department different?


I mentioned honesty in the Preface, so if you are honest, you have to agree that the views are NOT different. So then the effects of both experiences must be the same.

The Effects

Sexual assault disempowers, humiliates and degrades victims. It is generally accepted that these are some of the effects of sexual assault:
  • PTSD (Post Traumatic Stress Disorder)
  • Substance Abuse: use of alcohol or other substances in an attempt to relieve their emotional suffering.
  • Self-Harm / Self-Injury: creating a different pain to distract from the emotional pain.
  • Depression
  • Flashbacks: memories of past traumas feel as if they are taking place in the current moment.
  • Sleep Disorders
  • Eating Disorders: the use food and the control of food as an attempt to regain the feeling of control.
  • Body Memories: when the stress of the memories of the abuse experienced by an individual take the form of physical problems that cannot be explained by the usual means.
  • Dissociative Identity Disorder (DID): is a dissociative disorder in which two or more separate and distinct identities (or personalities) control an individual's behavior at different times. Usually one identity is protecting the identity suffering the emotional pain.
  • Emotional numbness
  • Guilt
  • Embarrassment / shame
  • Fear
  • Distrust of healthcare: feelings of hostility towards the healthcare system and healthcare workers. This may lead to avoidance of healthcare services when there is a serious problem.
If you are involved in any aspect of healthcare as a provider, you have to have at least a rudimentary knowledge of the effects of sexual assault. You should also be familiar with research and publications that studied the effects, therefore I feel that I do not need to cite sources.

The Annual Physical Exam is All Consent

Really? Most physicians assume that just by making an appointment to be seen, the patient consents to all parts being examined and being undressed. Do you think patients are not coerced? Look at how we are bombarded with the need for intimate exams: gynecological, breast testicular, prostate, etc. Society teaches us that we should let medical professionals do anything and that we should forget about our own needs, feelings, and values. Couple that with the fear of the doctor dropping the patient from the practice. 

Do physicians ever inquire how a patient feels after an invasive physical exam? Is there reason to expect that some patients may be suffering an emotional trauma after an invasive exam?

Let us put this in the context of spousal abuse/rape.

While the legal definition varies within the United States, marital rape can (generally) be defined as any unwanted intercourse or penetration obtained by force, threat of force, or when the wife is unable to consent.  Some history:

     The traditional definition of rape in the United States most commonly was, ""sexual intercourse by a man with a female not his wife without her consent"" (quoted in Barshis, 1983, p. 383).  As Finkelhor and Yllo (1985) have argued, this provided husbands with an exemption from prosecution for raping their wives - a ""license to rape"" (See Drucker, 1979; Eskow, 1996; Sitton, 1993, for a discussion of the marital exemption).  The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, Chief Justice in 17th century England. Hale wrote, "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract" (quoted in Russell, 1990, p. 17).  This established the notion that once married, a woman does not have the right to refuse sex with her husband.  This rationale remained largely unchallenged until the 1970's...
     Increasingly, researchers have begun to use broad definitions of sexual violence to more fully understand many women's experiences of ""unwanted sex"" or sex out of a sense of obligation or ""wifely duty"" (Basile, 2002; DeKeseredy & Joseph, in press; Finkelhor & Yllo, 1985).  For example, Finkelhor and Yllo (1985) note the importance of social coercion (the pressure women feel to have sex as a result of social and cultural expectations of marriage as an institution) ...
     Given that women who are raped by their partners are likely to experience multiple assaults, completed sexual attacks, and that they are raped by someone whom they once presumably loved and trusted, it is not surprising that marital rape survivors seem to suffer severe and long-term psychological consequences (Kilpatrick et al., 1988; Frieze, 1983).  Similar to other survivors of sexual violence, some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, disordered sleeping, and post-traumatic stress disorder (Bergen, 1996; Kilpatrick et al., 1988; Russell, 1990; Stermac et al., 2001).
     It has been well-documented in the study of violence against women that rape is a largely under-reported crime (see Koss & Cook, 1998).  Survivors of marital rape may have a particularly difficult time reporting their experiences of sexual violence given the public perception of marital rape in this culture and a woman's relationship to her assailant (Bergen, 1996; Russell, 1990).  Women raped by their husbands may hesitate to report because of family loyalty, fear of their abuser's retribution, fear that they will not be believed, inability to leave the relationship, or they may not know that rape in marriage is against the law (Bergen, 1996; Browne, 1987; Russell, 1990).  A final compelling reason for women's under-reporting is that many do not define their experiences of forced sex in marriage as rape.  Some believe that only stranger rape is ""real rape;"" and other women see sex in marriage as an obligation and define forced sex as a ""wifely duty,"" not rape (Bergen, 1996).  Basile (2002) found that 61% of women who had unwanted sex with their partners did so out of a sense of obligation.  If they do not define their experiences as rape, women are unlikely to report the violence or seek outside assistance.  Source: National Resource Center on Domestic Violence
I would hope that you see where this is going. Again, most physicians assume that just by making an appointment to be seen, the patient consents to all parts being examined and being undressed. The patient may feel violated, but believe that there could not be violated by a provider.

Real Men

There has been a push for a number of years to shame men in to going for regular physical exams. They use cause and effect; failure to get regular (invasive) physical exams and accompanying tests can result in your death (portrayed as an abandonment of loved ones).

These campaigns use terms like "real men," "man up," "suck it up," "manly," etc. Here are examples with links:

  • Trisha Torrey (who claims to be a patient advocate) writes: "Men - you need to suck it up. ...Do you have a "right" not to seek care?  Yes, of course. But having a right, and doing the right thing, are not the same. There is nothing right about costing your family the health and happiness you bring to them just because you have modesty issues. ...Suck it up men!  Set aside your modesty issues and get the care you need." Source: 
  • United Healthcare has a brochure that says: "Real men DO get checkups, although some men’s attitudes about checkups may have come from their own fathers who avoided doctors, or thought talking to a doctor was uncomfortable or embarrassing. But, preventing disease and detecting health issues early, if they occur, are important to living a healthy life" Source:    
  • The Agency for Healthcare Research and Quality (part of the U.S. Department of Health & Human Services) has a campaign called: "Real Men Wear Gowns
  • Carolyn Clancy, M.D., Director of The Agency for Healthcare Research and Quality  writes: "As our new ads say, "real men" will take the extra steps to go to the doctor, get the right medical tests for their age and health status, and even put on a flimsy exam gown if that's what they need to do." Source:    
  • CompleteCare Health Network of New Jersey has a web page titled: "Why Real Men Get Healthcare Help" which states "Because one stereotype that is worth repeating is the man who won’t see a physician. Whether he’s too “manly” to worry about his health or just afraid of doctors, this man doesn’t want anything to do with preventative screenings. This is a problem because, according to Dr. Michele Torchia, Medical Director and Vice President of Medical Affairs at CompleteCare Health Network, in order to stay strong and physically active, men need to protect themselves against diseases and conditions that particularly affect their health. A Men's Health Screening Exam can mean the difference between a full and rewarding life and one seriously affected by disease and disability." 

  •  Even women are pressured too. The Pink Under Belly (who describes herself as a sassy Texas girl dealing with breast cancer and its messy aftermath) writes (metaphorically in a post titled "Suck it up, Buttercup"): "Anyone who has ever undergone a pelvic exam knows it’s not pleasant. No doubt. But guess what’s also unpleasant? And dreadful? Reproductive cancers. And if doctor’s groups are recommending women be spared from unpleasant exams today, who’s to say that similar recommendations against other unpleasant screenings won’t follow? Residents of cancerland, raise your hand if you find routine visits to your oncologist unpleasant. Raise your hand if those visits and the requisite exams produce anxiety. Now let’s have a show of hands for those who find the frequent port flushes to be unpleasant and painful. But we do them anyway, don’t we? We suck it up and get it done, despite the anxiety and the fear and the pain.Source: Suck it up, Buttercup
I don't think I need to cite any more examples. The message is clear. These types of campaigns fail to take into account is the perception some people may feel violated after the exam. The message that portray is "I have no cancer, so I can live the rest of my life dealing with PTSD and depression." What a long, wonderful life it will be too.

They marginalize the feelings of the patient. A patient feeling that they have been violated by a physical exam is now feeling guilty for having those feelings. These is also the implication that "real men" cannot be sexually assaulted (or should not feel like they have). Would any of these people or organizations have a campaign called "Real Men Can't be Raped?"

The worst offender on this short list is Trisha Torrey because she claims to be a patient advocate. Based on her line of thinking, she would tell women being gang raped, "close your eyes and pretend it is not happening so that you can go home to your family."

"There is nothing right about costing your family the health and happiness you bring to them just because you have modesty issues." (-Trisha Torrey) Again, I ask what about the PTSD, depression, etc. that follows from the feeling of being violated?

Denying that a patient can be violated is akin to agreeing with Virginia State Senator Richard Black who has been telling his fellow Virginians for more than a decade that spousal rape is not a crime. Source:

Modesty is NOT the Issue

Too many people on both sides of the argument (like Trisha Torrey) label the problem as "Patient Modesty." Is the issue for the victim of rape modesty? Would the victim feel any better if they were properly covered and not exposed during the assault?

That is why we need to look at this from the patient's point of view. It is not only about the exposure (modesty), but about the feelings of humiliation, powerlessness, and loss of control. Patients are expected to submit to the will of the provider no matter how humiliating, embarrassing, or even unnecessary compliance may be.

But it is Legal for Providers to Examine Patients.

I am not concerned with legality. I am looking from the patient's point of view. Let's try with something different; like homicide. Homicide is the killing of one human being by another human being. There are different types of homicide: murder, manslaughter, and justifiable homicide.


  • murder - The intentional killing of a person that is unlawful (in other words, the killing isn't legally justified), and committed with "malice aforethought" (intent to harm or kill or reckless disregard for life).
  • manslaughter -  The unlawful killing of a person that does not involve malice aforethought. (Recklessly disregarded a substantial risk, such as killing a person while driving drunk.)
  • justifiable homicide - Killing another person in self-defense or in the defense of others, but only if the person reasonably believes that the killing is absolutely necessary in order to prevent serious harm or death to himself or herself or to others.


My question to you is "At what point does the deceased feel less dead because he is a victim of justifiable homicide as opposed to being a victim of murder or manslaughter?"

Apply this line of thinking to a patient: "At what point does a patient feel less violated because a provider was doing an exam or procedure in a generally accepted manner and sanctioned by law, even if the patient consented?"

If a perpetrator says to a sexual assault victim, "I am doing this to save your life," should the victim feel any less violated?

Are you thinking yet???

Summary:

Here are my 2 points and there can be no argument against them:

1.) Sexual Assault has lasting effects on the victim. As a medical provider, you are taught this.
2.) A patient can have the same perception of a physical exam as a sexual assault and experience the same effects of a victim of sexual assault. My whole point of this post was to look at observable items; actions. We can not observe thoughts or intent. I have shown that the actions observed by both the victim of sexual assault and a patient CAN be the same.

These will be important because future posts will be based on this concept. I am not saying that this is true for all patients, or that all providers intentionally inflict harm and distress upon patients. I would argue the opposite, that providers are unaware of these effects.

I want to open your eyes to some of the side effects of our healthcare system.


The Answer(from above)...

If you are here to see the answer to take the test, here it is: 

The answer is:


 "DOES IT REALLY MATTER WHAT HAPPENED TO HER?"

Here is a person emotionally traumatized. Any answer than we need to get her the help to deal with this experience she endured is a sign for lack of concern with the well being of the patient and your egocentric view of healthcare. 

You probably realized where I was going with the example and most of you guessed B (egocentric). Some of you may have guessed C (extremely egocentric), thinking that I was going to say that she was raped first at the party then raped by the healthcare providers. I told you, that is not my view of healthcare providers.  

Most of you looked at A and said this is most logical and probably what happened, but Banterings is not going to admit it. (You are in denial.) You are also not looking from the patient's perspective.


--Banterings


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