Among the many scenarios contemplated under this defence is when the genitals of a male or female victim are penetrated with an object such as a medical instrument for the purpose of conducting a medical test, for treatment, or any other medical purpose.
Sexual assault is committed by a person who penetrates or wounds another person by inserting an object into the victim’s genital area.
A doctor who inserts a speculum or a pair of forceps to remove a foreign object from a patient’s genital area might be charged with sexual assault if this defence of medical or hygienic purpose were not available. So, too, would a nurse or emergency personnel be vulnerable to the same charge of sexual assault if they were to take blood, DNA or tissue samples from the genital area of a patient. Thus, this defence is available to them.
The thinking underlying this defence is that by submitting himself or herself to medical treatment, the patient or victim gives consent for insertion into the genital area for only one purpose: for medical or hygienic treatment. The consent is limited and very strict in scope.
This is not to say that doctors, nurses and other medical personnel always have this handy excuse to insulate them from all charges of sexual assault. This defence is available only if the medical practitioner, nurse or other medical personnel were acting within the scope of their duty as doctors.
Thus, if a dentist inserts an object into a patient’s vagina or anus while the patient was sedated and undergoing dental surgery, clearly, the insertion of the object into the patient’s genitals is not within the scope of the dentist’s duty. A dentist’s job is to tend to people’s teeth. Any insertion he or she makes into his or her patient’s genitals during dental surgery is clearly beyond the scope of his professional duty. The dentist may be charged with sexual assault.