Trigger Warning for discussions of sexual violence within a medical context.
Earlier this year, I wrote about part of a Chicago Tribune series that exposed how Illinois doctors can pretty easily sexually assault patients and get away with it with few to no negative consequences for their violations, frequently even being allowed to keep their licenses to practice medicine. The topic has come up again, as the series has thankfully inspired legislators to finally take some action. As a recap, here’s what the Tribune found:
•Under Illinois law, a sex-crime conviction does not trigger an automatic or permanent revocation of a doctor’s license. In some cases, such doctors lost their license for several years. One doctor convicted of sexual abuse of a patient was never disciplined by state regulators in any way.
•Because sex crimes can be difficult to prosecute, doctors are sometimes convicted of misdemeanor battery. Regulators place these doctors, as well as physicians found guilty of sexual misconduct without a criminal conviction, on an overburdened professional probation program that does little to prevent them from reoffending.
•Law enforcement officials and state regulators are not required to inform each other of patient complaints against doctors. It often takes multiple allegations before they take action.
•This year, Illinois stopped providing the public with detailed histories of the state’s doctors, including whether the doctor was convicted of a crime, fired by a hospital or forced to make a medical malpractice payment within the last five years. The state’s medical lobby has fiercely opposed these profiles.
Why, exactly, a sex crime conviction does not trigger an automatic revocation of one’s medial license, let alone a permanent one, is not at all clear. Nor is it clear why Illinois decided to put the medical lobby’s personal preferences above patient safety — though I do have exactly one educated guess, and it starts with “m” and ends with “oney.” Clearly, real reform is going to take the political will to stand up to check-waving lobbyists in favor of relatively poor health care consumers, and sadly such will is far from a given.
Here’s what state legislators have come up with so far:
State legislators, Gov. Pat Quinn and Attorney General Lisa Madigan agree that change is necessary, but they are not yet certain what shape reforms should take.
State Rep. Mary Flowers, D-Chicago, with the support of House Speaker Michael Madigan, plans to call a bill on Tuesday that would resurrect public access to the physician profiles.
State Sen. Kirk Dillard, R-Hinsdale, said he plans to strengthen legislation that he recently introduced. It would make health care workers whose licenses are revoked because of sex-crime convictions unable to reapply for the license for at least five years, but it does not require that the license be revoked in the first place.
State Rep. Jack Franks, D-Marengo, has introduced legislation that would mandate revocation in the cases of doctors convicted of sexual assault or battery of a patient, and not just those involving felonies.
Lisa Madigan’s office, meanwhile, is crafting legislation that would require law enforcement officials and state regulators to share patient complaints against doctors, while contemplating other possible changes.
Sometimes I feel like I’m living in the Twilight Zone.
It’s not that the ideas presented above are necessarily bad ones. It’s that for the most part, they’re glaringly and woefully inadequate. And it’s astonishing that a combination of pitifully obvious measures that should have been passed years ago and miserably half-assed proposals are what most who have even bothered to try managed to dream up.
Yes, of course state regulators and law enforcement should have to share complaints against doctors. Seeing as how a lack of communication here has allowed perpetrators to go free and patterns to go undetected, this should be a given. But measures should certainly not stop there. And the plan to resurrect public access to physician profiles is a good one, but here’s the thing — patients shouldn’t need to have the education to know they should research whether or not their doctors have been known to previously rape someone, let alone the resources to then do so. They just shouldn’t. No one should have to live in fear that maybe their doctor was once proven to have sexually assaulted a patient; or be aware that their doctor might actually be a rapist, because the law allows rapists to continue being doctors; or have to take the personal initiative to try to protect themselves from predatory doctors, all before they schedule their routine pap smear. Resources are good things, but not when research is left as patients’ only line of defense. Placing sole responsibility in the hands of patients, quite possibly setting up a new “maybe you should have researched your doctor first” form of victim-blaming, is just plain wrong.
But I think that State Sen. Dillard’s proposal, which technically goes further than either of the two listed above, angers me the most. The increased veneer of accountability for perpetrators backed up with actually nothing of the sort sends me into an incoherent rage. While ostensibly increasing the restrictions on medical licenses for sexual offenders, it doesn’t require that the sex offenders automatically have their licenses revoked. Further, not allowing them to reapply for their license until 5 years later is treated as some kind of progress. Is there something magical about 5 years? Something which guarantees that all the desire to violate, humiliate, and assault vulnerable persons has left their psyche? Because to me, it sounds like a completely arbitrary and really, really patronizing number that assumes rapists have the right to continue having access to potential victims while making large salaries and having great deals of social clout to boot.
Here are the facts: no one has the right to practice medicine. No one. And while regulations about who can and cannot access a privilege not generally guaranteed to the public frequently are oppressive, regulations preventing known sexual abusers from having access to the bodies of individuals in private and highly vulnerable situations are not among them.
Of course we wish to reform violent offenders. But one is not guaranteed to have been reformed simply because an arbitrary number of years has passed. Further, when we’re talking about a person in a highly sensitive and authoritative position of physician having committed sexual violence, it seems best for the “one strike and you’re out” rule to apply. The fact is, we restrict actual fundamental rights with far less reason in this country every single day. Take note of the fact that in all but two states, felons are disenfranchised, very often even after they’ve served their time, and even though many felons were convicted on mere drug or property crimes. I hope I don’t have to explain why it is absurd that in the U.S., many people who were caught with too many drugs can’t vote, while some people who were caught raping someone get to keep being doctors. We’re fine violating the constitutional rights of marginalized people, but queasy about revoking the special benefits that generally privileged folks get to enjoy.
That makes State Rep. Franks’ proposal by far the best — especially since it encompasses misdemeanor convictions in addition to felonies — though the Tribune does not note whether or doctors would be able to reapply for their licenses under his proposal after a set date. If they would not, it would certainly be a huge improvement on the status quo, and probably close to the best that can be done at the legislative level.
But I’m incredibly wary of any system that bases revocation of medical licenses on criminal convictions. The fact is that convictions for sexual assault are rather rare in the U.S. criminal justice system. Most victims don’t feel safe reporting their assaults to police, for a wide variety of reasons. Many highly credible cases that are reported are not pursued. Rapists are regularly ruled not guilty by biased juries wallowing in rape apologism and victim-blaming. And which rapists are convicted and which are not tends to fall heavily along lines of race, class, sexual orientation, dis/ability, gender identity, and more, for both the victims and perpetrators. The more marginalized a victim’s identity, the less likely sie is to see hir rapist convicted. The more privileged a perpetrator is, the less likely sie is to ever see repercussions for hir crimes.
We need to stop relying so heavily on our irreparably broken legal system to met out justice. Because right now, it’s barely even doing so at all, and is actually perpetuating a great deal more of injustice. We need to look into alternatives outside the criminal justice system. And to me, one available here seems pretty obvious. Medical boards exist for a reason — to regulate, investigate, punish, and attempt to prevent all types of misconduct. I see no reason, other than lack of political will, why they cannot and should not develop their own independent systems — not tied to money, or inside politics of who knows and who likes who, or the criminal justice system — specifically for encouraging and taking reports of sexual assault, investigating them, and determining guilt. The standard of evidence can and should be lower than that for criminal trials, and based on a “preponderance of evidence” model from civil courts (rather than a “beyond a reasonable doubt” criminal model). And all found to have committed assault under such a system should have their licenses revoked and not be allowed to reapply.
Would such a system be perfect? No. Do I see lots of ways for it to easily devolve into a mere shell more interested in “saving face” than holding perpetrators accountable? Easily. And that’s why it needs to be designed properly from the start, and from scratch rather than attempting to reform similar systems already in place. Would it be subject to the same kyriarchal biases as the criminal justice system? Quite likely! (And see point two.) But since the current system already has these problems and a whole lot more, I don’t see that as any reason not to, at the very least, start exerting pressure on medical boards to try. What we’re doing isn’t working. And people’s health and very safety is on the line.
The question, of course, is whether we care more about that or the right of abusive doctors to keep raping and otherwise violating patients with impunity. I sadly think I know the answer, but there’s only one way to prove me wrong.