People v. Bayer
| Decision Date | 15 May 2008 |
| Docket Number | Docket No. 281479. |
| Citation | 279 Mich.App. 49,756 N.W.2d 242 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Albert Norman BAYER, Defendant-Appellee. |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.
Christine A. Derdarian and Ronald E. Kaplovitz, Sylvan Lake, for the defendant.
Before: FORT HOOD, P.J., and TALBOT and BORRELLO, JJ.
Following a preliminary examination, defendant was bound over for trial on three counts of third-degree criminal sexual conduct (CSC). MCL 750.520b(1)(f)(iv); MCL 750.520d(1)(b). Defendant filed a motion to dismiss the charges or quash the information, challenging the constitutionality of MCL 750.520b(1)(f)(iv) by asserting that it is unduly vague, overbroad, and constitutes an improper delegation of legislative authority. The trial court granted defendant's motion and dismissed the charges against defendant, ruling that MCL 750.520b(1)(f)(iv) violated the nondelegation provision of the state constitution. The prosecution appeals as of right. We reverse and remand for the reinstatement of the charges.
Defendant is a practicing psychiatrist who provided treatment and prescribed medications for the victim from 1999 to 2005. The victim was referred to defendant by her attorney in 1999 for a child-custody evaluation. Purportedly, the victim had lost custody of her children because of psychiatric problems. Although her initial treatment schedule was more sporadic, encompassing office appointments with defendant on three-month intervals, over time the victim was scheduled for weekly sessions with defendant.
The victim described her relationship with defendant as changing substantially in 2003, concurrent with defendant's divorce, and asserted, "It started becoming personal." Defendant began telling the victim about his wife and divorce and initiated inquiries regarding the victim's sexual relationship with her husband. While initially taken aback by the questions, the victim began to discuss with defendant problems in her marriage and the sexual difficulties she was experiencing.
The victim's relationship with defendant further evolved in late 2003 or early 2004 when she acknowledged developing "sexual feelings" for defendant. The victim confessed these feelings to defendant and defendant assured her that they comprised a normal reaction to his efforts to assist her. Defendant instructed the victim to write down her feelings and send them to him as part of her therapy. Defendant purportedly suggested to the victim that women who are sexually deprived at home tend "to go elsewhere."
The first of the charged sexual encounters between defendant and the victim occurred at his office on February 7, 2004. Billing records confirm that defendant submitted charges to the victim's insurance carrier for this date. The victim noted that she was the last patient of the day for defendant and that during this session, defendant sat next to her on the couch and they began to kiss. Defendant proceeded to loosen the victim's bra and massage her breasts. The victim then performed oral sex on defendant at his request. The victim acknowledged that she had taken a substantial amount of medication on that day. She also reported that defendant, following the sexual encounter, expressed that "it was amazing, the best he's ever had."
Following this encounter, the victim reported feeling "dirty" and began to engage in compulsive washing rituals. The victim, without identifying defendant, discussed the incident with her daughter's therapist. The victim was placed in a partial-hospitalization program, and all medications prescribed by defendant were stopped. The victim also participated in an outpatient program, but in August 2004 returned to defendant's care.
The victim asserted that her return to treatment with defendant was initiated by his phone call to her indicating that the other physicians were "peons" and implying that he was better suited to assist her because of their established relationship and his knowledge of her. Defendant refilled the victim's prescriptions. The victim informed defendant that she had recorded many of his phone conversations with her, which prompted defendant to request they meet and destroy the tapes, to which she consented.
The next charged sexual encounter occurred on September 3, 2004, and was initiated by defendant's phoning the victim and requesting that she meet him at a Comfort Inn motel. The victim reported engaging in oral and vaginal sex with defendant and that she thereafter continued to engage in sexual encounters with defendant at various motels and in defendant's office. The victim stated that she was often highly medicated during these encounters from prescriptions provided by defendant. The victim asserted that defendant contended that the sexual encounters were therapeutic because "I would be less frustrated at home." The victim also reported that defendant told her that their relationship comprised more than sex, "we had something special." The next charged sexual encounter occurred at a motel on September 16, 2004. However, when the victim began to perform oral sex on defendant, he indicated that he merely wanted to hold her that day.
The victim asserted that throughout these encounters she continued to discuss her problems with defendant. She informed defendant that she was experiencing guilt because of their sexual relationship, which was manifesting itself in compulsive scratching and washing behaviors. Defendant responded by increasing the victim's dosage of Resperdal and continued her prescriptions for Lorcet, Provigil, Effexor, and Klonopin. At some point, defendant exchanged the victim's Lorcet prescription for Oxycontin. The victim testified that she was very distraught after the initiation of the sexual relationship with defendant, but when she expressed concerns regarding her symptoms defendant's response was to further increase her prescription medication.
According to the victim, defendant advised her not to confess her relationship with him to her husband or to reveal the types and amounts of medication she was prescribed. The victim acknowledged that she had feelings for defendant, but opined that her sexual encounters with him were attributable to her highly medicated condition. The victim informed defendant that she had developed suicidal ideation but asserted that defendant discouraged her from seeking hospitalization and from consulting other professionals for treatment. The victim reported that defendant offered her $50,000 to not reveal their relationship to anyone. The victim finally terminated her contacts with defendant following her attempted suicide. The victim asserted that she terminated the relationship and that defendant At this point, the victim, on her own and in conjunction with her new therapist, contacted the authorities and disclosed defendant's behavior. Billing records from defendant to the victim's insurance company show charges for services from August 11, 2001, through May 7, 2005.
When interviewed by the police, defendant admitted having a sexual relationship with the victim and that the encounters occurred at both his office and local motels. Initially, defendant attributed his behavior to his use of Vicodin to treat a medical condition, suggesting it made him vulnerable to advances by the victim. Defendant asserted that he permitted the relationship with the victim to continue because of her threats to expose their conduct and ruin his career. During the interview, defendant also indicated that he allowed the relationship with the victim to continue in an effort to provide therapy and help her. Defendant admitted to the police his awareness of the impropriety of his conduct and pleaded that charges not be pursued, because it would result in his professional ruin.
At the preliminary examination, Dr. Patricia Campbell, a licensed psychiatrist and physician, testified concerning professional standards in the field of psychiatry.1 Dr. Campbell testified that in the field of psychiatry there are professional standards on the national, state, and local community levels, as well as legal regulations and an ethical code. The American Psychiatric Association (APA) has adopted the American Medical Association (AMA) code of ethics with annotations pertaining to psychiatrists. The APA ethics code comprises the national ethical standard and is applicable to practitioners in Michigan.
Dr. Campbell testified that the APA ethics code expressly forbids a psychiatrist from having sexual contact with a current or former patient. Dr. Campbell indicated that the code precludes sexual encounters between a doctor and a patient because "the inherent inequality in the doctor-patient relationship may lead to exploitation of the patient, sexual activity with a current or former patient is unethical." Dr. Campbell opined that sexual activity with a current or former patient is considered unethical and unacceptable and that under no circumstances would sexual contact be considered an appropriate medical treatment for any patient. Dr. Campbell indicated that the proscription against intimate relationships constituted a "clear cut" rule. When queried regarding how a psychiatrist should respond to a patient seeking to initiate a romantic relationship with his or her therapist, Dr. Campbell responded that the psychiatrist must establish explicit boundaries and instruct the patient that a sexual relationship would be unacceptable. If the psychiatrist desired a romantic relationship with the...
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