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Sexual Assault Includes Invasive Bodily Exams Performed Without Consent

By: Michael Bannon, Anapol Weiss Associate

Last month, the Centers for Medicare and Medicaid Services (CMS) issued new guidance requiring hospitals to secure written, informed consent for sensitive bodily examinations performed under anesthesia. These include pelvic exams, breast exams, prostate exams, and rectal exams.

Until recently, surgeons regularly performed penetrative bodily exams on sedated patients without medical indication. Most frequently, they were conducted for the purpose of medical education, but a 2020 New York Times investigation (published shortly before the pandemic) found that surgeons and residents frequently conducted these exams without the prior consent of the patient. CMS’s new guidance establishes guidelines for any hospital in the country that accepts Medicare or Medicaid funding.

Nonconsensual pelvic exams on sedated patients were once rampant in the medical community. A 2003 study found that ninety percent of students at five Pennsylvania medical schools had performed such a pelvic exam. In response to that paper, California, Illinois, Virginia, Oregon, Hawaii, and Iowa explicitly banned the practice. Several years later—in response to the 2020 NY Times investigation—Maryland, Utah, New York, and Delaware passed similar laws.

But regardless of where it is performed, an invasive bodily exam performed without consent is sexual assault. At Anapol Weiss, we are dedicated to advocating for survivors of sexual assault and victims of injustices in our medical system. Our compassionate team of litigators fight every day to hold perpetrators of sexual violence accountable. Read more here.