Regulars on this blog are familiar with the doctrine of res ipsa loquitur (or “the thing speaks for itself”). One twisted case near Phoenix, Arizona would certainly seem to fit that definition after a patient in a vegetative state gave birth. AZ Family reported that he victim is a member of the San Carlos Apache Tribe who nearly drowned 10 years ago. Police or the company may seek DNA samples from all male employees at Hacienda HealthCare. In this case, a positive match would by definition confirm rape given the non-consensual context.
The police served a warrant for the DNA samples. The eventual criminal charge would include a likely assortment of charges including aggravated rape. The Arizona law covers any individual who knowingly, intentionally, or recklessly acted to insult, provoke, injure or otherwise cause physical harm to another person and they engage in one or more of various conditions including serious injury or physically restrain or impair the victim’s ability to resist the assault. While the person was previously in a vegetative state, the rapist used that pre-existing condition to commit the rape. Moreover, there is a condition covering entry into a private residence with the intent to assault someone. There are also crimes of abusing vulnerable or disabled individuals. The result hopefully will be a long time in jail for the culprit.
On its website, Hacienda HealthCare says it provides care for “medically fragile and chronically ill infants, children, teens, and young adults as well as those with intellectual and developmental disabilities”.
Obviously, there is also huge potential civil liability for assault, battery, negligence, and infliction of emotional distress, including claims against the facility.
Adding to the negligence is the fact that the facility staff did not even know the woman was pregnant until she was giving birth.
A warrant for DNA for any and all males could be a matter for a legal challenge. We have seen such warrants used in England and other countries for rapists in geographic areas. In the United States, there is supposed to be individualized probable cause. This however is a much more confined group with an obvious tie to the victim and scene of the crime during the critical period. Ultimately, the police may be fine to risk challenge to simply see who refuses the test.
The company could also demand the samples as a condition of employment for public safety purposes. That would lead to other challenges but again could, in the process, reduce the list of suspects.
The company could argue that the criminal act of an employee is a superseding intervening act that cuts off its liability as a matter of proximate cause. However, there remains the negligence in hiring, supervision, and other steps that allowed such a horrific situation to develop. The company now requires that no male employee can be alone in a room with a female patient without having a female employee present.
Indigenous peoples not receiving their treaty rights.
What’s wrong with you people? Quite obviously, THE MESSIAH HAS RETURNED!!!
Born to an Apache mother.
TNYT has an article about this topic today.
The facility showed a severe lack in standard of care for this rape to have occurred. This is not the first time a disabled person, or someone in a vegetative state, was assaulted. It’s common enough that one would think that safety precautions would be part of patient care protocols. Without the birth, no one apparently would have known she’d ever been assaulted.
They should also check her for STDs.
One has to wonder what in the world is going on in Hacienda if a woman went through 9 months of gestation without anyone noticing body changes, missed periods…
I wonder who will take care of the baby.
The Apache tribe will.
it really depends on the victim’s habitus whether she could easily have been determined to be pregnant. If she’d been obese during that time, it’s possible that, lying down, she might not have “shown” noticeably. I’m aware of cases in which women presented at emergency rooms and gave birth on the toilet, unaware (at least they said they were) of their pregnancy. It also happened to a classmate of mine in high school (fortunately, she was at home at the time).
But regular movement of the patient to avoid bedsores and for bodily cleaning ought to have alerted the staff at Hacienda that something was amiss, assuming the pregnancy was full term. I agree that the fact of the childbirth is evidence in and of itself of failure to maintain a reasonable standard of care, both from failure to prevent the woman’s rape at the facility and failure to detect a pregnancy in a timely fashion.
Had the pregnancy been detected in the first or second trimester, though, the nursing home management might have been deterred from acting on that knowledge, certainly from fear of being sued by next of kin, but also from a desire not to be embroiled in a media storm and the back-and-forth over whether to refer the victim for an abortion..
Sounds like Divine action to me ! Must be a miracle !
Half of the baby’s DNA comes from the sperm placed in the rape victim. Might be worth doing an NDIS search from the baby’s tissue against core loci in CODIS records.
It’s not likely the rapist is in CODIS, but you check low-hanging fruit because sometimes rapists are stupid.
That’s a good idea, Jean.
Is DNA private? Does she have family? What are the rights of the baby? The act(s) was 9 months ago. The rapist may not work there anymore. If paternity is proven, does the male assume parental rights? Assuming they never find the father, does the baby belong to mother? If the mother’s family wants control of the baby, to raise or to put up for adoption, wouldn’t that be best?
“negligence in hiring, supervision,”
Not really. Rape is ubiquitous. The good news is that it is tolerated, legally, socially, and culturally, less than before, at least in the US. Arrest, indictment, conviction, and severe punishment for rape is necessary if we are going to reduce the proliferation of genetic material that reproduces violence and psychopathology, generation after generation.
Hacienda HealthCare, 74 bed facility…..1-3 star rating
No mention of security, sign in logs, doors needing “badge in access” or cameras
Male employees aren’t the only suspects:
Vendors, visiting doctors, other residents, visiting family members, guardians, POA’s
Typically, guardians & POA’s motive is financial fraud or some kind embezzlement scam. A nursing home room, single/double occupancy is about $4000-$7000 per month.
It’s true. They need to check their records to find out who was there that day. It might have been a visitor, vendor, maintenance, construction, or some stranger off the street who likes to sneak into convalescent homes.
Poor thing.
While I agree with our host’s opinion that casting this wide net in obtaining a search warrant for all employed males of the time of conception might be challenged (and its potential for abuse) I have a concern in the resultant evidence.
If presenting the warrant serves to flush out any males who refuse the DNA test and hence allow them to be labeled as good potential suspects, we run into the problem with exclusionary evidence. If the DNA warrant for all males is held to be overbroad does the resultant evidence of someone refusing the DNA test that leads police to suspect them get suppressed because the overly broad search induced the defendant to act suspiciously?
There was an appeals court case in WA a few months ago where a suspect expressed his right to remain silent and the state used that invocation as evidence of guilt, arguing if he wasn’t guilty he would not have objected to making the statement. The appeals court affirmed the state’s argument. I completely disagreed with their reasoning, but we’ll see how well this fares at the supreme court if it goes that far.
As for the civil tort in this case of an intentional infliction of emotional distress how can one prove that a person in a persistent vegetative state experienced such harm? Perhaps it could be said that an unconsented sexual intercourse is per se infliction of emotional distress and it is automatically actionable.
It’s sexual battery and rape.
Res ipsa loquitur – DNA is indeed The thing that itself speaks
Unfortunately, a DNA match is hardly definitive forensic science.
Thus will go hard for the male employees of 9 months ago.
Well the one who did it had to be hard for the semen to get inside.
Possibly A.I.
Artificial intelligence? Alien interaction?
Artificial Insemination. Done on cows around here all the time.
That was the penultimate plot twist in a Scott Turow novel, back in the 1990s/
It was a plot in CSI SVU, where someone in a vegetative state was artificially inseminated. They assumed another guy was guilty because he would not provide DNA, but it turned out he was innocent.
David:
“Unfortunately, a DNA match is hardly definitive forensic science.“ I’m sorry, what? A DNA match has a low standard of error. This isn’t 23andMe, but rather a forensic lab.
Forensic science is in a very sorry state. I’m no geniticist but I can think of many, many difficulties.