Opinion
Docket No. 180058.
Submitted May 8, 1996, at Grand Rapids.
Decided October 8, 1996, at 9:10 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William M. Fagerman, Prosecuting Attorney, and Carole F. Barnett, Assistant Attorney General, for the people.
Teresa Ann Chapman, for the defendant on appeal.
Defendant pleaded nolo contendere to criminal sexual conduct in the fourth degree, MCL 750.520e; MSA 28.788(5), and attempted criminal sexual conduct in the fourth degree, MCL 750.92; MSA 28.287. He was sentenced to concurrent terms of five years' probation and six months in jail. The plea was conditioned upon the right to raise certain issues on appeal. He now appeals, and we affirm.
We first consider whether there was sufficient evidence presented at the preliminary examination to conclude that defendant accomplished the charged acts of sexual contact and penetration by use of coercion. We conclude that there was. In People v Premo, 213 Mich. App. 406, 410-411; 540 N.W.2d 715 (1995), this Court, quoting Black's Law Dictionary (5th ed), p 234, stated that coercion "may be actual, direct, or positive, as where physical force is used to compel act against one's will, or implied, legal or constructive, as where one party is constrained by subjugation to other to do what his free will would refuse."
In the case at bar, defendant, as the victim's psychotherapist, manipulated therapy sessions to establish a relationship that would permit his sexual advances to be accepted without protest. That is, he subjugated the victim into submitting to his sexual advances against her free will. Accordingly, the circuit court properly reinstated charges with respect to all "coercion" theories.
Next, we turn to defendant's argument that the charges based upon "medical treatment or examination" were improper because psychotherapy conducted by a clinical psychologist does not constitute "medical treatment or examination" as used in the criminal sexual conduct statute. We disagree. Under the statute, force or coercion includes medical treatment or examination conducted "in a manner or for purposes which are medically recognized as unethical or unacceptable." MCL 750.520b(1)(f)(iv); MSA 28.788(2)(1)(f)(iv) and MCL 750.520e(1)(b)(iv); MSA 28.788(5)(1)(b)(iv). Defendant argues that psychotherapy conducted by a psychologist is not "medical treatment." While it is true that a psychologist, unlike a psychiatrist, is not a medical doctor, we do not believe that the criminal sexual conduct statute was intended to narrowly apply only to medical doctors.
The prosecutor's reliance on In re Freiburger, 153 Mich. App. 251; 395 N.W.2d 300 (1986), is misplaced. Freiburger merely notes that psychiatry is a branch of medicine. Id. at 257. However, we are dealing with a psychologist, not a psychiatrist.
We base our conclusion on two points. First, we look to the definition of "practice of medicine" under the Public Health Code. While not controlling, it is certainly persuasive. MCL 333.17001(1)(d); MSA 14.15(17001)(1)(d) defines "practice of medicine" as:
[T]he diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts. [Emphasis added.]
This broad definition of "practice of medicine," in our view, goes beyond the activities of medical doctors and can be read to include the practice of psychotherapy. Indeed, the attorney general, in interpreting a predecessor statute that employed a similar definition of the "practice of medicine," opined that "the practice of psychotherapy comes within the definition of the practice of medicine." OAG, 1952-1954, No 1645, p 146 (April 22, 1953).
Second, and perhaps more important, we do not believe that a restrictive view of "medical treatment" would meet the legislative intent of the statute. Simply put, we see no logical reason why the Legislature would wish to restrict applicability of the statute to medical doctors only. The clear purpose of the statute is to protect patients from abuse by professionals who, under the guise of treatment, take advantage of the patient's vulnerabilities to achieve a sexual purpose. We do not believe that the Legislature would view the potential harm from a medical doctor different from the potential harm from a psychologist, nurse, or other health-care professional. In interpreting a criminal statute, we must give effect to the Legislature's intent. See People v Thomas, 438 Mich. 448; 475 N.W.2d 288 (1991). Therefore, we conclude that "medical treatment" under the criminal sexual conduct statute should be read broadly to include forms of health care beyond just those practiced by medical doctors. Specifically, it should be read to include psychotherapy practiced by psychologists.
For the above reasons, we conclude that the trial court correctly reinstated those charges based upon medical treatment. Furthermore, in light of our disposition of the arguments related to force or coercion and medical treatment, it is unnecessary to consider defendant's arguments related to whether the victim was "physically helpless," as that term is used in the criminal sexual conduct statute.
Affirmed.