/ 7 June 2019

The complexity of sexual consent

(John McCann/M&G)
(John McCann/M&G)


It does seem questionable that a woman would have consensual sex with her family doctor while her husband waits outside in the car. But this is what Dr M claims happened when Mrs H consulted his rooms. Mrs H, however, vehemently disputes this. She told the Health Professions Council of South Africa that there was no consent and that her doctor raped her.

It doesn’t end there; the district surgeon, Dr P, was charged with unprofessional conduct in the same matter, in that he attempted to persuade Mrs H to withdraw the complaint, including criminal charges, against Dr M when she reported the incident to him.

Mrs H said she was offered R100 000 to make the matter go away, but the doctors alleged that Mrs H and her husband wanted to extort R500 000 from them.

In another case, a doctor appealed the council’s 2014 decision to strike him off the medical roll for charges related to sexual misconduct. Dr J, a psychiatrist, alleged that he and Mrs K, his patient who was suffering serious depression, had consensual sex. Mrs K disputed this and her family — bearing in mind that her condition was worsening at the time — said they did not believe she had full capacity to consent. They said that she was also heavily medicated by her psychiatrist of many years.

The doctor’s version, however, is that prior to the day of the incident, Mrs K had sat on his lap and kissed him passionately. The kiss was fully reciprocated. The psychiatrist, who is also a paraplegic, further detailed how this intimate moment made him fall off his wheelchair, which he said embarrassed him.

Dr J averred, furthermore, that as a paraplegic he needed Mrs K to help him undress and get on the bed, charging again that his patient was not only a participant but indeed the initiator.

The incident happened at the doctor’s consulting rooms and he complained of extortion.

Dr M and P were found not guilty by the council and Dr J’s appeal succeeded. They may practise medicine without restriction.

Though we still may not know the pervasiveness of physician sexual misconduct comprehensively, both cases do lay bare the complexities of consent.

A patient can consent to have sex with her doctor, but that consent msut take place without coercion, violence or an abuse of power.

Perceptions of consent also vary according to personal experiences, cultural and societal influences as well as gender.

In any event, the imbalance of power between a doctor and his patient — taking into account that a doctor assumes a position of trust and authority — cannot be ignored. Keep in mind that a doctor’s visit is also premised on the assurance of confidentiality and responsibility.

Therefore, where there is an imbalance of power, sometimes a victim may be ambiguous about what might constitute consent and responsibility since consent is often inferred without considering the unequal power in the relationship.

Patients are known to pay physicians deference and it goes without saying that sometimes persons in positions of power abuse this privilege. It was for this reason that the legal definitions of rape were changed and list coercive circumstances operating to vitiate consent.

The Sexual Offences and Related Matters Amendment Act provides that consent means voluntary or uncoerced agreement.

There is no consent when there is a “threat of harm” against a complainant or when there is an “abuse of power or authority” by the accused. Importantly, there can never be consent in situations in which the complainant is “incapable in law of appreciating the nature of the sexual act” as a result of being “asleep; unconscious; [or] in an altered state of consciousness” as a result of the “influence of any medicine, drug, alcohol or other substance”.

Because Mrs K was medicated and suffering from depression, could she have been capable of consenting, without any coercion, to someone whom she confided in without reservation and perhaps whom she revered?

Hypothetically, is it strange that she might have failed to avoid her doctor’s advances in fear of disappointing him?

She may have had fears of losing his services because he was playing a key role in her recovery. Perhaps she felt that she owed him (for his kindness and efforts in helping her get better)?

What we know is that women find it difficult to report acts of sexual violence and, where women have found the courage to share their experiences, this has occurred predominantly where women feel safe and supported.

Society and boards, such as the medical council, need to be aware of the sexual offences reform that provides discourse about sexual coercion and consent, between which there is a very fine line.

Palesa Lebitse is a liberal feminist