Oregon law for sexual misconduct by doctors trails other states, KATU investigation finds

CLACKAMAS CO., Ore. — Oregon law lacks specificity that could make it easier to prosecute doctors for misconduct on the job, when compared to other states, a KATU News investigation found.

There is concern the law gives doctors a possible free pass from criminal charges, even in cases of misconduct.

Clackamas County District Attorney John Wentworth said the current law made it too difficult to prosecute David Farley for his actions while he practiced in West Linn. He told KATU the case exposed a gap in Oregon law.

“Of course, it does,” Wentworth said. “And that was the research that my prosecutors came up with as well.”

Though Farley will never legally practice medicine in Oregon again, some of his former patients say that is not good enough. They want him in prison.

Nicole Snow, Katie Medley, and Lisa Pratt still find it hard to believe Farley does not face criminal charges.

“There’s a pattern, and so I don't understand why they don't want to be on the right side of history here. You help, you believe people, you help women. You don't just let doctors get a free pass because they're a doctor,” Pratt said.

The Oregon Medical Board revoked Farley’s medical license in 2020 after it found he took nude pictures of minors and told parents the pictures were for a medical study. The medical board called the study unethical. Farley said he got consent, but could never provide proof to the medical board.

The board also found at least three cases of Farley performing pelvic exams and pap smears on minor patients that it said were unnecessary. Farley agreed to a lifetime ban from practicing medicine in Oregon.

Despite those findings, a Clackamas County grand jury declined criminal charges in September 2022 – a decision outlined in a previous KATU News investigation.

RELATED | Patients of former West Linn doctor pan Clackamas DA's handling of criminal case

The medical board’s findings detailed misconduct involving minor patients of Farley’s, but the trio of women KATU interviewed accused him of the same conduct. They said they took Farley’s word that the procedures were necessary.

“What’s so hard to me is when you go into an office like that, to somebody who's trusted in a community like a doctor, somebody who's such a high-standing position, you trust them, right,” Pratt said. “We're going in. You don't ever expect to be abused. There's a huge layer of implicit trust there when you walk into a doctor's office.”

“I was lied to; I was lied to about my needing to even be in an appointment that, during which I was sexually assaulted. I didn't consent. That's not informed consent,” said Medley.

Farley’s attorneys of record have not responded to numerous emails and calls for comment. The only response so far in the civil case is a request by his attorneys to delay the civil case until the criminal investigation was over.

Wentworth won’t share the full list of charges his office or the grand jury considered. However, many laws in Oregon related to alleged sexual assault say a person is unable to give consent if they are physically helpless.

State law defines that as any time, “a person is unconscious or for any other reason physically unable to communicate unwillingness to an act.”

KATU: These women are saying, ‘we're not doctors. We don't know that we don't need this procedure. He's telling us we do. We'll take his word for it.’ Other states have interpreted that physically helpless, unconscious state as people not knowing better, not necessarily being asleep or unconscious in the literal sense. Did your office consider that these women are not professionals, therefore they can't really consent to behavior that they don't know anything about?
Wentworth: Well, we don't have any case law to suggest that ignorance or misdirection makes a person physically helpless; that's what you're asking. There's no case law to support that. The statute doesn't support that. That's a challenge within the criminal law.
KATU: In Oregon?
Wentworth: In Oregon.

A previous KATU investigation outlined an exception in Oregon law for the crime of unlawful penetration if the penetration is, “part of a medically recognized treatment or diagnostic procedure.”

It does not say anything about the procedure being medically necessary.

Wentworth said that was a challenge when his office and the grand jury looked at criminal charges for Farley’s pelvic exams outlined by the medical board.

Wentworth: So, the procedure itself is a medically recognized procedure. Whether or not it's a recommended procedure is a different issue.
KATU: So, in other words, since a pelvic exam is recognizable, if someone does that 12 times a year, even though you're not supposed to, because the other 11 times he does it for gratification or for whatever purposes, that in your mind is not criminal behavior?
Wentworth: Well, it's not my mind. Remember, we presented this evidence to the grand jury.

The legal situation is different for doctors in other states. In Michigan, for example, where former Olympic doctor Larry Nassar pleaded guilty to criminal sexual conduct, the law goes much further.

The law says a person is guilty of criminal sexual conduct “when the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable."

KATU: Would you like to see Oregon code be that explicit for prosecutors?
Wentworth: That would've made this case much easier.

Similarly, California law criminalizes actions by a doctor if doctors lie to their patients about a procedure being necessary.

“Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose is guilty of sexual battery,” the law reads.

KATU: If that was the code in Oregon, do you believe there would be a crime here?
Wentworth: I don't want to speculate on that, because you have to develop that entire level of case law and understand legislative intent. I believe it would make it easier though.
KATU: So, you would like to see the Oregon code be that explicit?
Wentworth: That would be wonderful.

It’s up to the legislature to more clearly define the law and close the gap Wentworth pointed to – a change Wentworth said he’ll ask lawmakers to make in the 2023 legislative session which starts in mid-January.

However, some of Farley’s former patients and their attorneys said the facts warrant criminal charges now under current Oregon law. They want Attorney General Ellen Rosenblum to take the case on, though her office has not said if it will do so.

“We know it's really hard for the attorney general to take this on. It's really difficult on the Department of Justice, but it's so important. It's so important, and we know that they can do it,” Nicole Snow said.

“Every time that we have a chance to really explain the things that Farley did, people are very confused why the police didn't take action,” Medley said.

“We can only hope that someone will step up and do the right thing and help us to put this man behind bars, because that's what we need,” Pratt said. “That's what needs to happen.”