The Government Says Hospitals Have to Get Written Consent for Nonconsenual Pelvic Exams and It’s About Time

One expert told Jezebel that nonconsensual pelvic exams have had a lasting toll on victims. She's heard from some whose PTSD prevents them from going to the doctor or seeking health care altogether

By Kylie Cheung | April 3, 2024 | 5:07pm

Photo: Shutterstock Politics

The Government Says Hospitals Have to Get Written Consent for Nonconsenual Pelvic Exams and It’s About Time

Over the last few years, reporting from across the country has revealed that in an alarming amount of hospitals, medical students perform intimate exams on patients who were unconscious or under anesthesia as part of their training. In 2023, a couple of states passed laws against nonconsensual pelvic exams but now, the government has explicitly stated that teaching hospitals are no longer allowed to do this.

Per a new federal guidance issued by the Health and Human Services Department on Monday, hospitals will now be required to obtain written consent from patients before performing pelvic exams or exams involving other sensitive areas, including (and especially!) if the exam is performed while the patient is unconscious. Hospitals that don’t comply could face fines, investigations, and become ineligible to participate in Medicare and Medicaid programs.

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“The Department is aware of media reports as well as medical and scientific literature highlighting instances where, as part of medical students’ courses of study and training, patients have been subjected to sensitive and intimate examinations—including pelvic, breast, prostate, or rectal examinations—while under anesthesia without proper informed consent being obtained prior to the examination,” Xavier Becerra, secretary of the HHS Department, wrote in a letter addressed to hospitals and medical schools. Becerra stressed that “providers and trainees” performing such exams must “first obtain and document informed consent from patients before performing sensitive examinations in all circumstances.”

“Informed consent includes the right to refuse consent for sensitive examinations conducted for teaching purposes and the right to refuse to consent to any previously unagreed examinations to treatment while under anesthesia,” the letter states.

Last year, the Hastings Center estimated as many as 3.6 million U.S. women and men may have received a pelvic exam or other intimate exams without their consent in the last five years. Only about half of the country has laws requiring consent for pelvic exams while patients are unconscious, according to a review by the American Journal of Law & Medicine published in November 2022. Since that review, several states including, more recently, Missouri, Montana, and Colorado, have also banned nonconsensual pelvic exams. California became the first to pass a law prohibiting nonconsensual pelvic exams in 2003 and was later joined by New York, Oregon, Texas, Florida, and Arizona.

But in many of these states that still haven’t passed a law, advocates including activist and filmmaker A’magine Goddard—whose documentary, At Your Cervix, shines a light on pervasive violations of consent in gynecology—have raised concerns about the specifics of their laws, including lack of clear direction on how to obtain consent.

Goddard told Jezebel that the HHS Department’s guidance this week is “an enormous step in eradicating this practice, which we know has harmed literally so many students and patients since the inception of gynecology.” But she emphasized the need for a “clear consent process” that’s “verbal, electronic, and offers a clear opportunity to opt out.”

Research from 2005 showed that 75% of surveyed medical students at the University of Oklahoma self-reported performing pelvic exams on patients who couldn’t consent, including unconscious patients. There have been several investigations into doctors specifically for weaponizing anesthesia to sexually assault patients. In a statement responding to the new guidance this week, Scott Berkowitz, founder and president of the Rape, Abuse and Incest National Network, called nonconsensual pelvic exams “a shocking problem with a very simple solution—hospitals need to ask for consent clearly and explicitly.”

And when patients do consent to pelvic exams and exams of other sensitive areas, survivors of sexual violence have spoken about how this can be retraumatizing and how few options they get for trauma-informed care from their health care providers. One study found just 29.6% of surveyed doctors have asked their patients if they’ve experienced sexual or physical abuse, which is necessary to determine what patients might need to feel safe.

Goddard says she’s spoken to several survivors of nonconsensual pelvic exams and other sexual abuse from health care providers and heard from them firsthand about how PTSD continues to manifest in their day-to-day lives. “It takes a tremendous toll, and in the bigger picture, it makes them afraid to seek health care or go to the doctor because trust is so eroded between patient and provider, where their future health is affected,” Goddard said. “They’re afraid to get health care they need because of what’s happened to them. It’s a very long-term problem.” Goddard hopes the HHS Department’s new guidance will protect patients from experiencing a violation that can impact their health and well-being for years to come.