By: Mario Palermo of Palermo Law Group
Are reports of inappropriate touching made by other victims admissible in a sexual assault case? This question recently came up in a civil case against a physician. The short answer to the question is “yes,” as long as the evidence is offered for some purpose other than as proof of the doctor’s inclination to behave in a certain way.
The case involves several women who allege that the same physician inappropriately touched them during medical examinations. Freedom of Information Act requests to the local police department and the Illinois Department of Financial and Professional Regulation reveal other women had previously made complaints against the same doctor. The common denominators for all of the victims are that the inappropriate touching occurred during a physical examination, the women had seen the doctor on prior occasions without such touching and the women could not conceive of a legitimate purpose for the inappropriate touching in the context of the examination.
Not surprisingly, the doctor is seeking to prevent evidence about the other complaints from being used against him. The applicable rule of evidence is Illinois Rule 404(b). (Rule 404(b) is titled, “Other Crimes, Wrongs Or Acts.”) While the rule limits the general use of other bad acts, it allows this evidence under certain circumstances: such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Here, the women seek to prove that the doctor has a modus operandi. Not only has he previously sexually assaulted women in a similar fashion, his defense is that the inappropriate touching is acceptable because he is a physician conducting an examination. Thus, evidence of the prior assaults will be probative to show the physician’s intent, plan, and absence of mistake.
Victims of abuse, particularly at the hands of a doctor, teacher, or clergy, should be allowed to be heard. Often evidence is equivocal and amounts to “he said, she said.” Juries should know when it’s actually “he said, she said and she said and she said.”