Report of the Investigation Committee on:
Protection of Hospitalized Mental Patients Against Sexual Assault and Abuse
Justice (Ret.) Dr. Benzion Shereshewsky
George Szekely, M.D.
Ilya Averbuch, M.D.
Rabbi Yair Israeli
Rabbi Mordechai Halperin, M.D.
A. Issues Investigated
In accordance with the letter of appointment, the committee was requested to examine the following:
1. The frequency of sexual molestation under present circumstances in psychiatric wards and mental hospitals;
2. The extent of protection presently provided in these wards;
3. The extent of protection required in order to prevent sexual molestation of hospitalized mental patients;
4. Measures to effectively achieve such protection.
After dealing with the matter in principle, the committee decided to begin investigating the status quo in order to determine whether and to what extent hospitalized mental patients are victims of sexual abuse.
B . Domains of Inspection
The following methods were adopted in the investigation:
1. A questionnaire was sent out to directors of mental hospitals through the head of the ‘National Steering Committee for Psychiatry’ and replies were analyzed.
2. Relevant literature was reviewed.
3. Directors of psychiatric wards recounted their personal experiences.
4. Data obtained from the Rabbinical Courts (legally in charge of trying matters of marriage and divorce) were studied in order to learn about the extent to which families have been broken as a result of sexual affronts against mental patients during the period of hospitalization.
C. The Status Quo: Inspection Results
The material at our disposal yielded the following findings:
1. There have been cases of sexual assault and abuse among hos- pitalized mental patients.
2. While in a manic state patients are incapable of controlling themselves and it might thus occur that they initiate sexual activity which is harmful to themselves.
3. Patients in a psychotic or confused state, incapable of proper judgment or self restraint, have been known to initiate uncon- trolled sexual activity or succumb to demands to engage in such activity.
4. There were cases of mental patients who became pregnant or gave birth, the pregnancy having occurred during hospitalization in a psychiatric ward. As a result, in some of these cases abortions were performed.
5. Unrestrained sexual activity during the course of hospitalization sometimes led to the breakup of families.
6. Not all incidents of the kind mentioned above are brought to the attention of the directors of hospitals.
7. In some cases, the patient’s doctor consciously denied that such incidents had taken place, or refrained from reporting them to the patient’s family or spouse – in order to protect the patient’s family and prevent it from breaking up should this information be brought to the knowledge of the patient’s spouse.
D. Frequency of Sexual Assault and Abuse in Psychiatric Wards and Mental Hospitals
The data obtained indicate a substantial incidence of sexual abuse cases among hospitalized mental patients. Based on the material at its disposal, the Committee concluded that the problem of sexual molestation among hospitalized mental patients has significant legal and social importance – even in the absence of high frequency. Hence it was decided to refrain from obtaining further particular information in such cases.
E. Rights of Hospitalized Mental Patients
Section 35 of the Law of Treatment of Psychiatric Patients, enacted in 1991, provides in subsection (a) that “none of the rights of psychiatric patients shall be nullified, nor shall they be limited in any way, other than by law.” The word “right,” in this context, must be interpreted to include, inter alia, freedom from molestation of the body or honor of the patient. Therefore, in absence of a clear legal provision, any act that is considered an offense – including a sexual offense – against the patient’s body must be prohibited. There exists no such legal provision permitting a sexual offense against a patient. There is, therefore, no doubt that such an act is illegal on the premises of the hospital, just as it is illegal outside the hospital.
Even though consent to engage in sexual relations can override the criminal nature of the act, the law does not attach any legal weight to such consent when it is expressed by a mental patient or a person with a mental disorder. Hence, a sexual act committed against a mental patient is to be considered as having taken place without his/her consent.
F. The Duty of the Medical Staff to Protect Hospitalized Mental Patients Against Sexual Molestation
The responsibility of the medical staff for the welfare and health of the hospitalized patients is determined by law. Hence the basic duty of hospital staff to protect patients against sexual molestation. When a patient’s health is harmed, either physically or mentally, as a result of sexual abuse – there is a clear violation of section 322 of the 1977 Criminal Code, which imposes (among other things) a duty upon those responsible for a patient to take care of his health.
He who fails to comply with the said duty will, in the words of the law, “be considered the cause of results affecting the patient’s life or health, owing to not having complied with his said duty.”
Section 350 of the Criminal Code – 1977 provides:
“With respect to the offense as defined in this section [Chapter E: Sexual Offenses], it is one and the same whether the offender committed the act him/herself or caused the act to be committed.”
The legal significance of this statement points to the real possibility of actually prosecuting the director of a psychiatric ward who did not take measures against the danger of raping mental patients hospitalized in ward, charging him with having brought about sexual molestation against patients who, in the eyes of the law, are considered as not having consented thereto.
G. Insufficient Due Protection at Present
The conditions regarding staff of mental institutions do not allow for providing sufficient protection of patients against sexual molestation so long as the wards accommodate both sexes. Even if the staff is increased reasonably, it will not be possible to provide the necessary protection – on account of natural inherent drives the patients have, which cannot be restrained owing to the damage caused to some of their defense mechanisms; especially as the environment provides convenient opportunities to engage in sexual activity. No doubt, mental patients hospitalized in separate-sex wards are much more protected against sexual molestation than patients hospitalized in mixed wards. However, even in separate-sex wards, more protection is necessary. The staff, i.e., physicians and nurses, is clearly obliged by the law to protect patients in separate-sex wards as well.
To sum up: Even where the sane population mixes freely with members of the opposite sex, psychiatric patients require protection at a different level from that accorded to sane persons. Hence, even if wards in general hospitals are mixed, this policy is not appropriate for psychiatric wards. In view of the above, the existing level of protection in psychiatric wards accommodating patients of both sexes is clearly unsatisfactory.
H. Mixed vs. Separate Wards
Until the 1960’s there was complete separation between the sexes in psychiatric wards, with separate wards for males and females. Later, there was a tendency to change this policy and accommodate men and women in the same wards – although in separate rooms.
The main reasons for this change were:
1. In a mixed ward males and females will take better care of themselves due to the presence of members of the opposite sex.
2. The presence of women in a ward helps curb violent behavior of males.
3. Fear was voiced that patients could develop deviant sexual tendencies in separate wards.
The committee has noted that there are professional disagree- ments on the subject between medical experts. Some claim that the transition to mixed wards has led to improved behavior among patients, while others argue that this improvement is due mainly to the introduction of advanced therapeutic methods and new medicines – rather than a result of transition to mixed wards. Indeed, the committee heard reports of separate-sex wards functioning satisfactorily.
In view of this professional disagreement, the committee inves- tigated the issue also on the assumption that some patients may in fact benefit from mixed wards.
I. Harming One Patient in order to Benefit Another
Sexual molestation of mental patients can cause serious damage, such as destroying the family unit, and can also create mental problems which may require further treatment.
The ensuing question is as follows: Is it justified to hospitalize a mental patient in a mixed ward when this might cause serious damage to him/her, even if some other patients might benefit by being with him/her in the same ward?
This problem is not only a medical issue but also a legal/social one. From a legal point of view, there is no justification for harming a single patient, even if others may benefit from this. Hence, although the presence of members of both sexes in the same ward may benefit some patients and constitute a positive therapeutic measure for them, there is no justification for harming even one individual in order to bring about such improvement.
It is emphasized that should the director of a hospital or psychiatric ward prevent or neglect implementation of separate-sex wards – even if he does so on the grounds of it being for the benefit of patients or the functioning of his ward – he subjects himself to criminal charges based on sections 322 and 350 of the Criminal Code as well as to civil claims based on laws of contracts or torts, since such action may be considered a violation of his duty towards the patient as specified in those provisions.
Moreover, the bodies that run psychiatric hospitals, e.g., the government or Kupat Holim, may have to pay monetary compensation if the said directors violate their said duty, based on the rules of law with regard to employer-employee relations (“master and servant”).
In light of the above, the committee has come to the conclusion that in order to provide the standard of protection required to prevent sexual molestation of hospitalized mental patients, it is necessary to have separate-sex wards – in addition to taking other appropriate measures for the protection of patients.
J. Operative Conclusions
1. It is an absolute duty to hospitalize mental patients in separate-sex wards if they themselves or their guardians demand that this be done, or if there are medical reasons for doing so (for instance, in the case of unrestrained sexual behavior).
2. The Ministry of Health must verify that every medical institution in Israel hospitalizing psychiatric patients has separate-sex wards for adults and minors, so that the rights of such patients can be preserved during the term of hospitalization.
3. Absence of an appropriate separate-sex ward must not be accepted as a reason for placing a mental patient in a mixed ward.
4. Until the recommendations are fully implemented, mental pa- tients in need of hospitalization who live in areas where no separate-sex wards exist will not be subject to the limitations of “regional hospitalization regulations,” even should these regul- ations prohibit hospitalization in a separate-sex ward in another district.
One of the implications of this section is that a budget for this hospitalization will be made available without any delay, if a patient or his family members or guardians prefer that he be hospitalized in a separate-sex ward outside of his district rather than in a mixed ward within his district.
5. It is to be made clear to directors of hospitals and psychiatric wards that:
a. they may be subject by law to criminal and civil charges if any mentally ill patient hospitalized in a mixed ward is sexually molested.
b. the patient and/or his or her family’s consent to hospitalization in a mixed ward is no basis for defense, should the director be charged with responsibility for sexual molestation of a hospitalized patient.
c. the argument that “reasonable measures” have been taken against sexual molestation of patients does not constitute defense against a charge concerning incidents of sexual moles- tation of a mentally ill hospitalized patient in a mixed ward.
d. on the other hand, in a separate ward, “reasonable measures” may serve as grounds for defense against a charge based on incidents of sexual molestation of a hospitalized mentally ill patient.
6. Furthermore, various liabilities should be noted which may bring upon the state and/or Kupat Holim liability to pay compensation based on the breach of the aforesaid duty (see conclusion 5) of directors of psychiatric hospitals and psychiatric wards in insti- tutions belonging to the state and/or to Kupat Holim.
Source: ASSIA – Jewish Medical Ethics,
Vol. II, No. 2, May 1995, pp. 32-36