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7th District: Doctor’s admission of sex with patient was coerced
TRACEY BLAIR
Legal News Reporter
Published: February 15, 2013
Police detectives tricked a physician into admitting he had sex with a patient by giving him false information, the 7th District Court of Appeals recently ruled.
Dr. Larry Lee Smith, now 72, has a pending rape trial in Mahoning County Common Pleas Court.
A trial court judge previously agreed to suppress statements Smith made to police during an interrogation. The judge was correct in doing so, the appellate court affirmed.
According to case summary details:
On Oct. 6, 2010, a woman came to the Canfield Police Department reporting Smith had performed oral sex on her during an office visit.
Smith was informed of the woman’s allegations during an interview.
Detective Brian Datillo asked the doctor if he had consensual sex with the woman, repeatedly telling him that if the sex was consensual, it was not rape.
“You are allowed to have sexual relationships with your clients,” Detective Brian McGivern told Smith. “Is it unethical? Yes. Is it illegal? No, it’s not illegal.”
Smith denied it at first, but eventually admitted having consensual sex with the patient.
McGivern later asked Smith if he still thought having sex with patients was illegal and the doctor said, “Yes.”
McGivern replied, “I know the law, obviously … and I’m telling you it is not illegal … to have sex with your patients” and “It’s wrong, it’s unethical, but I’m not the ethical police.”
The doctor was then permitted to leave the station.
The detectives later said that at the time, they did not know that if a doctor has sex with his patient, he is guilty of sexual battery.
“The state alleges that Det. McGivern’s statements to appellee were that consensual sex between a doctor and a patient is not rape, which is a correct statement of the law,” 7th District Judge Gene Donofrio stated in a 3-0 opinion. “But Det. McGivern made many other incorrect statements of the law. Det. McGivern told appellee repeatedly, that having sex with a patient was not illegal and was not a crime. This is not a correct statement of the law.”
According to Donofrio’s opinion, Smith violated R.C. 2907.03(A)(6), which states that no person shall engage in sexual conduct with a patient.
Smith denied having oral sex with the woman at least five times.
“And his admission only came after Det. McGivern told him at least seven times that it was not illegal for him to have sex with his patient,” according to the opinion. “Given these facts and the incorrect statement of the law, the trial court applied the appropriate legal standard when it found that appellee’s will was overborne and his capacity for self-determination was critically impaired due to coercive conduct by the police. Therefore, the trial court did not err in granting appellee’s motion to suppress.”
Appellate judges Joseph J. Vukovich and Cheryl L. Waite concurred with the opinion, which was posted Feb. 4.
The case is cited State v. Larry Lee Smith, No. 12 MA 64.