Rape and sexual assault charges involving doctors and mental health professionals.

Posted By Galluzzo & Arnone || 1-Mar-2016

Rape and sexual assaults involving doctors and mental health providers.

Under New York law, every sexual crime against another person involves the element of a lack of consent by the victim. A minor may be too young to legally consent to sexual contact, a person may be too intoxicated to consent to sexual contact, and a person may be too mentally incapacitated to offer consent. In addition, though, a patient of a health care provider or a mental health care professional cannot legally consent to certain types of sexual contact under certain circumstances, specifically, during clinical sessions or treatment. Thus, certain types of sexual contact (as described in Penal Law Sections 130.25, 130.40, 130.65-a, and 130.55) cannot happen between a patient and a health care or mental health care professional during a treatment session, lest they be charged as serious felony crimes.

Penal Law Section 130.05 outlines the different definitions of consent. Subsection (h) specifically applies to health care and mental health care providers, and states the following:

a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or (i) a resident or inpatient of a residential facility operated, licensed or certified by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient. For purposes of this paragraph, "employee" means either: an employee of the agency operating the residential facility, who knows or reasonably should know that such person is a resident or inpatient of such facility and who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility and who is in direct contact with residents or inpatients; provided, however, that the provisions of this paragraph shall only apply to a consultant, contractor or volunteer providing services pursuant to a contractual arrangement with the agency operating the residential facility or, in the case of a volunteer, a written agreement with such facility, provided that the person received written notice concerning the provisions of this paragraph; provided further, however, "employee" shall not include a person with a developmental disability who is or was receiving services and is also an employee of a service provider and who has sexual contact with another service recipient who is a consenting adult who has consented to such contact.

Of course, it may be possible for health care or mental health care providers to have relationships with their patients outside of the clinical setting, but sexual contact during a treatment session is illegal as patients are considered especially vulnerable at those times.

If you or a loved one are a health care or mental health care provider and have been accused of unlawful sexual contact with a patient, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Arnone LLP. Their team of former Manhattan prosecutors includes Matthew Galluzzo, a former sex crimes prosecutor whose opinion on rape and sexual assault investigations has been routinely sought by television and newspaper reporters.