Protection of Hospitalized Mental Patients against Sexual Assault and Abuse*

Justice Dr. Benzion Shereshewsky

My subject is to deal from the point of view of our legal system with the question of the responsibility to prevent sexual assault and abuse among hospitalized mental patients.

It is, therefore, not our purpose here to discuss the conditions which led to hospitalization or the exact diagnoses of patients, as our subject as aforesaid is patients whose mental illness is a fact and who, in consequence thereof, are hospitalized.

According to Paragraph 35 (b) of the recently enacted “Law for Treatment of Mental Patients 5751-1991,”[1] the primary purpose of psychiatric hospitalization is to provide medical treatment for the hospitalized patient. According to Section 35 (c),[2] a hospitalized patient is entitled to receive at the hospital medical treatment dictated by his medical condition, both mental and physical, in accordance with the standard and rules of the Israeli Health System.

Thus, the hospital’s medical administration[3] has responsibility to care for the health of such patients. The medical establishment, therefore, has to prevent any act of commission or of omission which might endanger the mental or physical health of the hospit- alized patient. There is no doubt that any offense which may be defined as a crime of sexual assault according to the Provisions of Section 345 (and so forth) of the Penal Law of 5737-1977 with its amendments (hereafter referred to as “the Law”) may constitute an injury to the mental or physical health of the patient which, as aforesaid, the medical administration of the hospital had to prevent. Therefore, if an act of commission or omission, as aforesaid, results in such injury to the patient, the hospital medical administration, unless it can show a legal justification for such injury – and there is no rule of law which could justify sexual assault to patients – may be considered, according to the provisions of ss. 322, 337, 350 of the Penal Law, as one who has caused the offense and therefore will have to bear criminal responsibility for not having complied with its aforesaid duties.[4]

Breach of the above duty may also lead to responsibility according to the Law of Torts. For such breach might be considered a tort of negligence towards the patient[5] unless there could be shown a reasonable justification for failing to fulfill their duty as required.

The responsibility for financial compensation for damages caused by the injury may also fall on the hospital proprietors, according to the rules of “Master and Servant” which hold the employer responsible for acts of his employee.[6]

Therefore, if there is a possibility to protect patients against such injuries – a protection which the hospital administration and the medical staff are obligated to provide – and this could be achieved by providing separate wards for men and women, then non-implementation of separate wards may be seen to be a breach of the said duty according to the Penal Law and the Law of Torts.

Whether or not the danger of sexual assault and abuse is frequent or infrequent is not actually relevant. As these are non- predictable occurrences, the dangers must be seen to exist at all times for all patients.

As our subject is mentally ill patients, hospitalized in a psy- chiatric hospital, it is likely that sexual intercourse there with a mentally ill woman, in many cases, would involve exploiting her troubled mental state according to the meaning of Section 345(4) of the Penal Law. Even apparent consent of the female patient will not be considered to avoid the said legal consequence in as much as such consent will be based on the troubled mental state of the woman.

What, therefore, are the appropriate ways through which we ought to defend hospitalized mental patients from sexual assault and abuse?

On this subject, I understand that there is no consensus among experts. The main question is whether to prefer mixed wards or separate wards for male and female patients in psychiatric institutions. Some experts prefer mixed wards because the pre- sence of women may ease tensions among patients. Some advocates of mixed wards also state that as the discharged patient needs to return to live in a mixed society, mixed wards may prepare him better therefore by preventing disassociation in the hospital from the other sex. Others say that sexual assault may be prevented in a mixed psychiatric ward through the provision of a sufficiently large professional staff and that this staffing may also ensure the protection of mentally ill patients to a satisfactory degree.

Having studied the issue, the best practical solution is com- pletely separate wards for men and for women patients. Against the contention that the mixed ward may calm patients, we can pose the question: Where is the legal justification to refrain from taking all possible steps – to fully protect hospitalized mentally ill patients from sexual assault and abuse and thus endanger some patients in order to provide thereby a possibly better atmosphere for others?

Furthermore: Attention should be paid to the possibly severe consequences which may result from sexual abuse in a mixed ward, such as possible ruin of the patient’s family, where the healthy partner of the couple is unable to accept the new situation caused by the abuse of the patient in the hospital. There is also the possibility of severe reactions by the patient once he or she comes back to his/her own and understands what happened to him/her. The recalling of events might lead to depression or even to inclination towards suicide. Although such possible consequences might be infrequent, the possibility of saving even one person by the establishment of separate wards, should override all other claimed advantages of the mixed ward system. Our sages wrote in the Talmud that “whoever sustains one person is like one who sustains an entire world,” and this principle should form the basis for finding a solution to our problem.

There is no doubt that full protection of patients from sexual assault and abuse cannot be achieved in the mixed ward system. Granted the mixed ward may possibly from time to time have a general positive influence. However, even a large professional staff cannot absolutely prevent the possibility of sexual assault of patients.

In contrast to the mixed ward, a separate ward system can ensure defense against the danger of sexual assault likely to be suffered by the patient in a mixed ward, as it offers the prevention by avoiding the creation of the danger.

In conclusion, in my opinion, it is absolutely necessary to change the system from the present mixed ward system into the more protective separate ward system in all psychiatric institutions and wards.

Source: ASSIA – Jewish Medical Ethics,
Vol. II, No. 2, May 1995, pp. 37-38

* Presented in the Third International Congress on Psychiatry, Law & Ethics. Jerusalem, November, 1991

4. see Section 322 together with Section 337, 350 of the Penal Law.

5. ss. 35, 36, 76 of the Civil Wrongs Ordinance.

6. s. 13 of the said Ordinance and the law of Civil Wrongs [responsibility of the State], 1952, as amended.