House Bill 130 would make sexual contact between consenting adults a felony

Wilmington, DE – Governor Markell announced today he has vetoed House Bill 130, expressing concern the bill does not differentiate between the penalties for consensual and non-consensual sexual contact and that current Delaware laws address the behavior targeted by the bill. HB 130 would create a felony level offense for health professionals who, in the course of providing professional health services, intentionally have sexual contact with the patient.

In his veto statement (full text below), the Governor agreed that consensual sexual contact in the context of a professional relationship raises serious questions about the health care professional’s integrity and professional responsibility. However, there is a strong system of laws in Delaware that address illegal behavior by health care professionals and licensing boards that monitor misconduct among members.

“House Bill 130 would make all sexual contact, including consensual sexual contact between two adults, a Class F felony punishable by up to three years in prison and registration for twenty-five years as a Tier II Sex Offender, which results in a mandatory loss of professional license, if one of those adults is a health care professional and the other is a patient being treated by the health care professional. Notably, the same sexual contact, if non-consensual and offensive to the adult victim, is a Class A misdemeanor punishable by a maximum of one year in jail. The law as written could apply in a situation where, for example, a general practitioner starts dating a patient who comes in for annual or bi-annual physical exams, perhaps sees a nurse practitioner in between appointments for a flu shot, and may occasionally call for a refill of allergy medication.  If the doctor failed to remove the patient from the patient list the moment the relationship began, that relationship could fall within the “course of treatment” to which this statute applies.  House Bill 130 does not distinguish between situations where there is consent and no consent, or account for the fact that a doctor-patient relationship may be different in one context (e.g. a mental health counselor) than another (e.g. a dental hygienist). For these reasons, I veto House Bill 130 and return it to the House of Representatives without my signature,” wrote the Governor in a statement delivered to the House of Representatives. 

Governor Markell Statement to House of Representatives Vetoing House Bill 130:

August 17, 2015

TO THE MEMBERS OF THE HOUSE OF REPRESENTATIVES

OF THE 148th GENERAL ASSEMBLY:

Pursuant to Article III, Section 18 of the Delaware Constitution, after careful consideration, I am vetoing House Bill 130 by returning it with my objections to the House of Representatives without my signature.

I am vetoing House Bill 130 because the bill makes sexual contact between consenting adults a felony.  Under Delaware law, it is already illegal for a health care professional, social worker or counselor to have sexual contact with a patient or client under the guise of providing treatment.[1]  Under Delaware law, it is already illegal to have sexual contact with a minor, and there are enhanced penalties for cases involving health professionals and offenses against children and vulnerable adults.[2]  It is already illegal to have sexual contact with a person who is incapable of giving consent due to a cognitive disability or serious mental illness,[3] or because the patient is unconscious or under the influence of medication that impairs the patient’s judgment.[4]

House Bill 130 would make all sexual contact, including consensual sexual contact between two adults, a Class F felony punishable by up to three years in prison and registration for twenty-five years as a Tier II Sex Offender,[5] which results in a mandatory loss of professional license,[6] if one of those adults is a health care professional and the other is a patient being treated by the health care professional. Notably, the same sexual contact, if non-consensual and offensive to the adult victim, is a Class A misdemeanor punishable by a maximum of one year in jail.[7]

While HB 130 only applies in situations where a health care professional intentionally engages in sexual contact with a patient “in the course of providing those professional health services,” the legislation does not offer any definition or other guidance on what is “in the course of providing professional health services.”  Stated differently, this legislation does not define or otherwise limit the meaning of “in the course of treatment,” meaning that the law could be enforced in unpredictable and inconsistent ways.[8] The law as written could apply in a situation where, for example, a general practitioner starts dating a patient who comes in for annual or bi-annual physical exams, perhaps sees a nurse practitioner in between appointments for a flu shot, and may occasionally call for a refill of allergy medication.  If the doctor failed to remove the patient from the patient list the moment the relationship began, that relationship could fall within the “course of treatment” to which this statute applies.

House Bill 130 does not distinguish between situations where there is consent and no consent, or account for the fact that a doctor-patient relationship may be different in one context (e.g. a mental health counselor) than another (e.g. a dental hygienist).   While consensual sexual contact in the context of a professional relationship may raise serious questions about the health care professional’s integrity and professional responsibility, there are already substantial mechanisms in place to deter inappropriate sexual contact between a health care professional and patient. Health professionals are governed by their respective licensing boards, and engaging in inappropriate relationships with patients can trigger sanctions up to and including loss of professional license and referral for criminal prosecution.   These Boards are best equipped to assess the circumstances of each case and the level of harm caused to the patient. We can rely on the current system of professional regulation to address these circumstances, and for more egregious behavior or for offenses against children or vulnerable adults, the criminal code already provides adequate protection.

For these reasons, I veto House Bill 130 and return it to the House of Representatives without my signature.

Sincerely,

Jack A. Markell

Governor

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• [1] See 11 Del. C. § 761(j)(4) (In the criminal sex offense statute, “without consent” includes: “[w]here the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested. …”).
• [2]See generally 11 Del. C. §§1100-1112 (crimes against children and vulnerable adults; enhanced penalties); see also, e.g., 11 Del. C. § 761(k) (a minor child is deemed unable to consent to a sexual act with a person more than four years older than the child); 11 Del. C. § 1105(b)(enhanced penalties for crimes committed against vulnerable adults).
• [3] See 11 Del. C. § 761(j)(3) (“without consent” includes when “the defendant knew that the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting”).
• [4] See 11 Del. C. § 761(j)(5) (“without consent” includes when “the defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance”).  See also 11 Del. C. § 761(j)(2) (“without consent” includes when “[t]he defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed”).
• [5] See 11 Del. C. § 4121(d)(2) (a person convicted of  unlawful sexual contact in the second degree is designated as a Tier II sex offender); 11 Del. C. § 4121(e)(1)(b) (a Tier II sex offender must register for 25 years following release or sentence).
• [6] See, e.g., 24 Del. C. § 1731(a) (Since 2010, the Medical Practice Act requires that conviction of a felony sex offense result in license revocation). Similar provisions were passed in 2010 to apply to nurses, chiropractors, dentists, physical therapists, athletic trainers, optometrists, occupational therapists and a number of other health care professionals.
• [7] 11 Del. C. § 767 (A person is guilty of unlawful sexual contact in the third degree, a Class A misdemeanor, when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent); See also 11 Del. C. §§ 4121(d)(2-3) (a person convicted of unlawful sexual contact in the third degree can be designated a Tier II sex offender only upon Motion of the State as set forth therein; otherwise the person is designated a Tier I sex offender).
• [8] There is no universally accepted definition of “course of treatment” or in the course of providing professional health services” in Delaware statute or common law, and the phrase can be interpreted broadly.  See, e.g., Doe v. Bradley, 58 A.3d 429, 468 (Del. Super. 2012) (“[U]nder Delaware law, medical negligence is governed by statute and premised on health care services rendered in an existing doctor-patient relationship. Beyond the definitions of ‘patient’ and ‘healthcare,’ the medical negligence statute offers no further guidance regarding the factors a court should consider when determining whether a doctor-patient relationship exists. The balance of the statutory provisions assume the presence of a doctor-patient relationship. It is generally understood, however, that a doctor-patient relationship is consensual and begins when the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him or her as a patient. That interaction between the patient and doctor is necessary to create the contract for medical services, express or implied.”).

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