Sexual misconduct allegations can be handled in a civil, criminal, administrative, workplace or educational (Title IX) context. It is critical that as soon as an allegation is made that it be promptly investigated and defended since it can have severe consequences. For example, a complaint may not be prosecuted criminally but can result in loss of a job, expulsion from college, a civil lawsuit or administrative action. Companies facing allegations need to handle them properly in order to ensure there is no liability.
For professionals, issues of sexual misconduct can be within a company's human resources department licensing board or bureau's purview. In addition, issues of sexual harassment or misconduct can be a cause of civil action.
Sexual misconduct can be defined as unwelcome behavior of a sexual nature which can take several courses. First, asking for sexual favors in exchange for some job-related benefits is clearly illegal and unethical. Second, creating a hostile work environment because of some conduct or harassment of a sexual nature is also illegal and unethical, although harder to prove. In both cases, the test is whether the victim felt the acts were unwanted. A federal court adopted a "reasonable woman" standard in 1991 in determining what constituted sexual harassment. For physicians and health care practitioners who are conducting physical examinations, a patient's mere allegation can ruin a career.
The fact remains that many men (and perhaps women) do not understand what constitutes sexual misconduct. This is a new age, where there is a "Me Too" movement and where someone complaining of conduct is being given a presumption of credibility before there are any factual findings or hearings. While no one condones sexual assault or abuse of power, there needs to be due process. Now what we are seeing is even more subtle.
Physicians and Health Care Providers
For the past 15 years we have handled sexual misconduct allegations involving health care professionals. We have done outside investigations for hospitals and healthcare companies and have represented the health care providers individually. We are seeing a trend in an increase in allegations and an increase in false or exaggerated allegations.
Physicians (usually male) are increasingly being accused by patients (usually female) of improper conduct during physical examinations. In the past, a chaperone was not present and the physician vehemently denies the accusation. Now, patients are claiming of sexual touchings or misconduct years after the encounters even when chaperones were present and did not see or hear any misconduct. These accusations can stem from poor physician-to-patient communication regarding the procedure or examination, misunderstandings by the patient of intent, or anger toward the physician for some reason. In any event, the accused professional needs to be very clear in the beginning of any investigation as to the facts, review the records and get on the record his or her statements of hte facts. In universities, Title IX and human resource investigators are taking control of the investigation without any regard for the medical purpose of the examinations and fail to do proper investigations.
We have also seen customers and clients of non-medical professionals make claims about sexual battery or misconduct. For example, we have seen lawyers, real estate agents and insurance agents accused of sexual battery for allegedly touching a client during a client meeting. Prompt investigation and thorough review of the facts and establishing a record is important.
The problem that companies, hospitals, medical staffs and the courts is how to sort out the real episodes of abuse or assault from the false or exaggerated accusations or misunderstanding of the purpose of the encounter or touching. Unfortunately (or perhaps fortunately, depending on which side of the accusation you are on) the burden of proof in the civil, administrative and criminal court system as well as in human resource departments seems to have shifted to the accused to prove innocence. It often boils down to which of two individuals you believe, based on past history and credibility. Often multiple accusations are made against one physician when other patients and associates hear of the accusation through the press. There have been large settlements and that also drives false or exaggerated claims.
Aggressive representation and investigation is key. At the same time, if there are issues that are clearly a problem there may need to be a "damage control" approach. Each case is different and facts do matter!
For more information or to schedule an appointment with an experienced lawyer regarding issues related to sexual misconduct allegations or charges, please contact us at (213) 233-2260 for a free, 15-minute consultation or fill out our contact form and we will get back to you shortly.