Globe and Mail

Are women moral idiots?

Thursday, September 6, 2001– Page A21
The Globe and Mail

A couple of years ago, a man we'll call A.B. and a woman we'll call Z. began a love affair. They lived in Prince Edward Island. It was a mutual romance. They knew each other well and were both successful professionals.

Then someone blew the whistle on A.B. According to the law in PEI, he was guilty of sexual abuse for taking up with Z. That's because he's a doctor and he had treated Z. back in 1991 for some kind of mental or emotional complaint.

The fact of Z.'s consent, and the time that had elapsed, were irrelevant. The penalty was automatic. After 27 years of unblemished practice, A.B. would lose his licence, his livelihood and his good name. Because of PEI's zero-tolerance law for physicians, A.B. might as well have drugged and raped her during an examination in his office.

Last week, the province's Supreme Court ruled that the law violated A.B.'s Charter rights, and threw it out. "The legislation lacks balance and is incapable of giving justice to different fact situations," the judge said.

But in Ontario and other zero-tolerance jurisdictions, the facts still don't matter. "If you're a patient, it's like statutory rape," says Colleen Clements, a professor of psychiatry, who has been an expert witness in many physician-abuse cases. "There is no question of consent any more."

According to some people, that's just the way it should be.

Marilou McPhedran, the lawyer who led the drive for Ontario's zero-tolerance law, claims that sexual abuse of patients is shockingly pervasive. "At a conservative estimate, as many as 200,000 Ontario residents have been verbally embarrassed, propositioned, touched inappropriately or even raped by the very health professionals whose services they sought," she declared recently in The Globe and Mail. "Given the underreporting of such incidents, we believe 4 per cent is a conservative estimate of the percentage of Ontario men and women who experienced sexual abuse [by a health professional] in the previous five years."

Are things really as bad as that? Probably not. Or maybe they are, if enough people with tender sensibilities decide they feel verbally embarrassed. "The scientific quality of the data in this field is a disaster," Dr. Clements says. The rate of serious abuse by doctors -- rape, molestation and the like -- is quite low, she says. "But in order to get the public worked up, you have to artificially inflate the numbers."

One problem with zero-tolerance policies is that they conflate the trivial and the serious. "In one case, a doctor made an unwise joke," Dr. Clements says. "He was trying to relax a nervous patient and he said, 'Don't worry, I'm not going to rape you.' He was labelled a verbal sexual abuser."

Ms. McPhedran argues that the woman who took offence to that remark is one of the vast army of the abused. But Dr. Clements argues that moral equivalency such as this cheapens the experience of those who are truly harmed.

Among other measures, Ms. McPhedran's task force wants a lifetime ban on sexual contact between doctors and any patients who ever received psychotherapy from them -- just the law that trapped A.B. And they're furious at Ontario's medical association because it's mounting a legal challenge to the mandatory penalty of licence revocation for sexual abuse. The case in question concerns a male doctor who had a consensual affair with a female patient, who was also his physiotherapist.

Was there really any victim in that romance, and if so, who? Never mind. After all, the only fact that counts is: Did they have sex? If yes, then the doctor has exploited the power imbalance that is assumed to define all physician-patient relationships, and must be tossed out.

"The physician-patient relationship is presumed somehow to create this magical power," Dr. Clements says. "As the patient, you've suddenly lost your ability to be a moral agent, capable of making good or bad choices. It's a class you wouldn't want to be in, of incompetent people."

And despite Ms. McPhedran's carefully inclusive language about victims, it's a fact that the victims of doctor-patient sexual abuse are almost always women.

Dr. Clements calls these zero-tolerance policies "highly unethical." They rob medical boards of their discretion and forbid them from weighing the facts. But there's another reason they're offensive. They infantilize women, who are now placed in the same class as people suffering from dementia or low intelligence or some other impaired capacity.

No one denies that some doctors abuse their authority to prey on (usually female) patients, or that the profession has often been too slow to punish them, or that some abusers have got off too lightly. All these things are true.

But is the answer a law that treats us like moral idiots?

Maybe we ought to ask Z.

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.