When Saying Sorry Is Enough

This article appeared in the Sydney Morning Herald, 26 April 1997.

A retired Canberra doctor has apologised to women he allegedly sexually molested years earlier. He has escaped criminal charges. Bettina Arndt, one of his former patients, argues he has been punished enough.

“CANBERRA doctor says sorry about molestation,” trumpeted the headline of the lead story in The Canberra Times. The paper was delighted with the scoop, published on April 11, having first reported complaints about the doctor in 1994. That story had prompted 12 other women to come forward with their own accusations and consequent protracted legal battles.

At the time I read of the attempts to bring the doctor to trial with more than the usual journalistic curiosity. My personal interest stemmed from the startling realisation that I, too, had experienced a strange encounter with the very same doctor.

It was a quarter of a century earlier. I’d picked him out of the Yellow Pages, a stranger with a practice far removed from my Canberra home. I thought I might be pregnant – a very awkward situation for a 19-year-old university student.

The doctor was kind, sympathetic. But in the course of an examination he suggested an orgasm might be just the thing to bring on that much-awaited period. In a detached, professional manner he proceeded to try, unsuccessfully, to achieve just that.

Clitoral stimulation. It featured strongly in stories from other complainants, alongside breast fondling and other undoctorly behaviour. But in my own case it had just sufficient legitimacy to persuade a naive young woman that it wasn’t totally inappropriate. But I do remember thinking at the time that what he had done was a little odd. Twenty-five years later, I discovered I was one among many.

Yet, as the facts about the doctor’s situation emerged from the newspaper, I felt little motivation to join attempts to bring him to criminal trial. He was by then aged 68 and retired from general practice. Since all the complaints made about the doctor dated back to a period between the early ’60s and mid-1970s, it appears he may well have cleaned up his act long before he was publicly outed.

By the end of the next year, the effect of the intense publicity surrounding the legal proceedings against the doctor had the desired effect of sending a strong public message about his unacceptable behaviour as well as ensuring his vilification and disgrace – even though he ultimately managed to escape the noose.

Canberra is still a small town. People know each other. Tongues wag; rumours fly. So Gabrielle Shanahan’s story, published in The Canberra Times on February 9, 1994, caused a stir. She told of being assaulted by the doctor in 1969 when she was 17 and seeking help with a bad case of flu and a dose of cystitis. Graphic details of the alleged assault were published.

According to Shanahan, the doctor asked her to take off her clothes and then masturbated her for what seemed like five minutes before telling her to get up and get dressed.

“It was nothing remotely like a medical internal examination,” she said. “He persistently rubbed me, obviously trying to bring me to orgasm. He then put his hand under my head and lent down and I thought, ‘My God, he’s going to kiss me,’ and I pulled my head away.”

Shanahan went home crying hysterically and told her story to the family friend looking after her. Her parents reported the matter to the police, who informed them they had had other complaints against the doctor but no charges had been laid because there had not been sufficient corroboratory evidence.

Shanahan went public when she heard of other females, including a 12-year-old, who apparently had similar stories. The publication of Shanahan’s story inspired 12 other women to join her in laying assault charges in a magistrates’ court. Ten complaints were also made to the Medical Board, which entered into a prolonged legal battle aimed at suspending the doctor’s medical registration.

Meanwhile, the attempt to lay the criminal changes against the doctor came unstuck when Supreme Court Justice John Gallop granted a permanent stay on the proceedings. Among his cited reasons were the prejudice to the doctor that would result from the long delay and the fact that relevant medical records had been destroyed.

An appeal to the full court supported Gallop’s decision on the ground of prejudice resulting from the absence of records and the 20- to 35-year delay in taking action. “Although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness … To force (the doctor) to stand trial on these charges under these circumstances would offend the court’s sense of justice,” the appeal judges said.

But these judges took issue with Gallop’s contention that the prosecution might have difficulty establishing a lack of consent in some of the cases. Gallop had referred specifically to one case where the complainant continued to visit the doctor for 11 years after the alleged assaults and another where the complainant reported having four orgasms in response to the doctor’s attentions.

And what really attracted the wrath of the women involved in the case were Gallop’s comments concerning the reliability of the complainants’ memories. Citing the youth of many of the complainants, who ranged in age from 15 to 29, he said there was “in the very nature of the circumstances of each examination of the complainant much room for misunderstanding of what was taking place”.

Gallop also noted that the doctor had retired from medical practice and was unlikely to return, “hence the need to protect the public by disciplinary action has all but entirely disappeared”. After the stay in the criminal charges, the ACT Medical Board had received legal advice that, since the doctor was no longer a registered medical practitioner, it might not have the jurisdiction to inquire into his actions. Hence the board agreed to drop the matter in return for an agreement from the doctor that he would not practise, nor seek re-registration. So ultimately he jumped instead of being pushed, but the end result was similar.

For the women, there was one small victory in June 1995 when, after an application from an ABC Radio journalist, the Appeal Court overruled the confidentiality notice suppressing publication of the doctor’s name.

So I’m now in a position to name Doctor D, as I’ll now call him. But in the light of subsequent developments, I see little point in widening his public shame.

There followed two years of silence, which was broken by a startling revelation from a newly elected member of the ACT Legislative Assembly, Louise Littlewood, who announced to the chamber on April 11 that she had received a letter of apology from Doctor D.

Littlewood was one of the original 13 complainants in the criminal case. The letter was written to the husband of another complainant, with a copy sent to Littlewood’s husband. Both men had previously been acquainted with Doctor D.

Dr D claimed to be writing the letter in response to Gabrielle Shanahan’s public statement that “he has got away with it for all these years”.

“I got away with nothing,” Doctor D responded, and went on to document what he sees as the consequences of the very public legal battles. Namely, the loss of his medical practice and consequent dramatic drop in income, the loss of friends, his wife’s bout of stomach cancer (which was diagnosed as stress-related) and his own two episodes of cardiac arrest.

But the most telling part of the letter came at the end: “I do stress, however, that it grieves me very much to think that I might have somehow caused pain and suffering to any of my ex-patients by any of my actions … I really loved most of my patients. I know others may say I sometimes confused love and lust. If they say that I now have no other recourse but to accept that.”

So there it is, strange words of apology, acknowledgment of his betrayal of his patients’ trust. By the most circuitous route, what was achieved was exactly what it is often claimed most victims want – an admission of wrongdoing and awareness of causing harm. I spoke to a number of the original complainants in the case for their reaction.

“I think it’s marvellous,” said one. “I never really wanted anything to happen to him. I just wanted him to say what he’d done and to know it wasn’t going to happen again.”

Another said: “I was glad he had admitted it. This was a fine outcome. For me there is no malice. I wasn’t about to be vindictive after all this time because it hadn’t affected my life one iota.” The woman had rather reluctantly put herself forward as a complainant in the court case because her husband is a doctor and she was aware that “any good doctor hates to see the profession so badly let down”.

Although, at the time, she was annoyed by the stay on the criminal case and particularly Justice Gallop’s comments about the unreliability of the complainants’ memories, she now feels the apology is a better outcome. Not that she has much sympathy for the doctor’s tales of suffering. “I thought he was piling it on a bit thick. He was trying to justify himself in some way.”

Another complainant was equally unmoved: “Raving on about his wife’s illness, his cardiac problems and so on. I thought, ‘You brought it on yourself, mate!’ It’s like – what goes around, comes around.”

Last week I talked to Doctor D, in a strange phone call in which much was left unsaid. He told me he wasn’t sorry he had sent the letter and was frustrated he couldn’t say more. “If I have ever done anything wrong I would like to admit to it. The solicitors put you in a position where you can’t. It’s like motor vehicle accidents where the insurers say you should never admit to anything. With an organisation like the medical defence union, if you admit to anything, there’s the risk they may refuse to defend you.”

I asked him if he remembered my coming to see him. He spoke warmly of knowing my family, seeing me when I was a child. But when I confronted him with what happened on that last occasion, his reply was: “I can’t remember.”

Helen Garner, in her book The First Stone, ponders why the complainants in the Ormond College case chose to go to the police instead of seeking conciliation.

“Perhaps they believed, in their rage and frustration, that anything other than brute force would never blast a hole through the battlements of men’s privilege. So they charged past conciliation into the traditional masculine style of problem solving: call in the cops, split off the relevant nuances of character and context, and hire a cowboy to slug it out for you in the main street at noon, with all the citizenry watching.”

***

WITH a doctor breaching the trust of his patients, there is every reason to call in the cops. The doctor is so clearly in a position of power over patients who expose themselves in situations of such vulnerability and potential for abuse and embarrassment. Taking our clothes off, allowing doctors to poke and prod – the contract is all about trusting them to do the right thing.

We do so in the context of a long and shameful history of doctors getting away with it – medical practitioners exploiting patients while colleagues turn a blind eye. So when that contract is broken there is very good reason to want to slug it out in the main street where other doctors will be watching. I applaud the efforts of the complainants to use the Medical Board to ensure the doctor was no longer in a position to harm patients. But charging him with assault? That’s where I baulk.

Sure, the man had done me wrong. His action towards me was unethical, inappropriate, misguided. But whatever his motivations, it was not an act of violence but rather an action that in another context would be loving and pleasurable. It’s not a war crime, an event of such magnitude that it demands retribution decades later.

It was enough for me to know the public had been assured the doctor could not repeat his actions. It was enough to know his behaviour had consequences, sadly shared by his family, which ultimately motivated him to analyse his own behaviour and wish to make amends. To me, his words of contrition were a brave act, sending a message more powerful than the jail sentence he so narrowly avoided.

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