On December 29, 2018, an Apache woman who had been declared comatose for over a decade gave birth. See, e.g., Amanda Sakuma, “A woman in a vegetative state suddenly gave birth. Her alleged assault is a #MeToo wake-up call.,” Vox, Jan. 7, 2019, at https://www.vox.com/2019/1/7/18171012/arizona-woman-birth-coma-sexual-assault-metoo (last visited Jan. 21, 2019). The woman was in a privately-owned long-term care facility since she was deemed incapacitated some fourteen years ago. See id. The Phoenix police initiated a sexual assault investigation, and Arizona regulatory agents have demanded improved safeguards at the facility involved. See id. This article examines the civil legal issues surrounding the situation and discusses #MeToo concerns from various angles.
The woman who was impregnated was first declared to be comatose, but since then, her family released a statement that she is not in a coma. See Associated Press-1, republished in The Washington Post, “Incapacitated woman who gave birth in Arizona long-term-care facility was not in coma, family lawyer says,” Jan. 19, 2019. The family’s attorney claimed previous reports are inaccurate but that the twenty-nine-year-old woman does have “’significant intellectual disabilities’ and does not speak but has some ability to move, responds to sounds and is able to make facial gestures.” Associated Press-2, republished in U.S. News & World Report, “Lawyer: Incapacitated Woman Who Gave Birth Not in Coma,” Jan. 19, 2019. Local law enforcement declared the woman to be a victim of sexual assault, and her disabling conditions rendered her unable to consent to the sexual activity which caused her pregnancy. See, e.g., id. A Phoenix police sergeant stated that he has “never seen or heard of such a ‘horrific crime’ as the sexual assault investigation” involving the Apache woman. See Karen Mizoguchi, “Ariz. Sgt. Says ‘No Words to Describe ‘Sexual Assault of Woman in Coma: Horrific Event’,” People, Jan. 10, 2019. The officer emphasized that in his thirty-five years in law enforcement, he had never encountered a case like the one at issue, and he was so taken aback by the sexual assault that he did not “have words to describe it.’” Id.
There are several legal issues in this case. While the police investigation is a criminal matter, there are also civil aspects to the assault. Some considerations that concern civil matters are:
(1). DNA Testing: In the present case, the Phoenix Police Department obtained a warrant to take DNA samples of every male employee at the care facility. See, e.g., CBS News, “Police ramp up search for suspect in sexual assault of woman in vegetative state at Ariz. Facility,” Jan. 9, 2019, at https://www.cbsnews.com/news/phoenix-arizona-hacienda-healthcare-suspect-search-dna-samples-latest-police-investigation-today-2019-01-09/ (last visited Jan. 21, 2019). While that warrant was acquired to further a criminal investigation, the DNA tests may have relevance in civil suits.
For example, the question could arise where sexual misconduct is involved, and an institution is sued as a result. In civil cases, members of the legal profession may be unsure if or when DNA testing of employees or agents of an entity can be done. There may be conjecture over whether, for instance, an employer can order its workers to submit to DNA testing to try to affix personal responsibility on an individual and/or avoid institutional liability.
In 2009, a controversy was raised over a university policy that allowed the school to demand DNA samples from employees. See, e.g., Judy Greenwald, “Employer’s DNA test rule raises legal concerns,” Business Insurance, Nov. 22, 2009, available at https://www.businessinsurance.com/article/20091122/ISSUE01/311229977 (last visited Jan. 21, 2019). It was alleged that requesting the samples violated the Genetic Information Non-Discrimination Act (GINA), a 2008 federal law that “prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.” Equal Opportunity Employment Commission (“EEOC”), “Genetic Information Discrimination,” no date given, at https://www.eeoc.gov/laws/types/genetic.cfm, last visited Jan. 21, 2019.
In 2015, a dispute arose over whether an employer could test its employees’ DNA for inappropriate acts that were committed on the employer’s premises. See, e.g., Amy Kraft, “Can an employer ask for your DNA?,” CBS News, Jun. 17, 2015, at https://www.cbsnews.com/news/can-your-boss-access-your-dna/ (last visited Jan. 21, 2019). The district court judge who heard the case found for the employees, but she agreed that the issue was not black and white, and a sexual assault is far more serious than the conduct that was the subject of the 2015 litigation. See, e.g., id.
In 2017, legislation was introduced that would allow employers to conduct genetic testing on employees and provide that information to third parties. See, e.g., Dan Mangan, “Your boss could demand you get genetic testing and hand over the results, if this congressional bill becomes law,” CNBC, Mar. 10, 2017, at https://www.cnbc.com/2017/03/10/employers-could-demand-genetic-testing-under-congressional-bill.html (last visited Jan. 21, 2019). The 2017 bill contemplated DNA testing for an employee “health and wellness” program, after which the information could be shared with insurance providers. See id. That bill has not been voted on to date.
In cases like the present one, it is unclear whether employers could require their staff to submit to DNA tests to identify a person or persons who committed a sexual assault (or other sexual misconduct) in the workplace. Civil suits against entities in such instances may be brought on negligence grounds, and in those cases, potential plaintiffs and defendants may seek DNA testing to determine if a particular individual was at fault. In criminal cases, such testing has been permitted on numerous occasions, but many civil suits prohibited employers from taking genetic samples. See, e.g., Dan Mangan; See also, e.g., CBS News, See also, e.g., Haskell v. Harris, 669 F.3d 1049 (9th Cir., 2012).
When the state has a compelling reason to seek such samples, courts have often upheld mandatory DNA testing. See, e.g., id. In addition, the Fifth Circuit held that when an employer has a legitimate purpose for requiring certain medical information to be disclosed and the public policy goal is safety, this may override individual objections. See Ortiz v. City of San Antonio, 806 F.3d 822, (5th Cir., 2015). Whether genetic testing would be permitted in a civil suit to hold an entity responsible for individual agents’ sexual misconduct is unclear.
Expert witnesses play an important role in resolving this weighty question. A forensic expert addressed what DNA testing in the current investigation may accomplish. See, e.g., Zach Crenshaw, “DNA expert weighs in on Hacienda Healthcare Sexual Assault Case,” ABC 15 News, Jan. 9, 2019, at https://www.abc15.com/news/region-phoenix-metro/central-phoenix/dna-expert-weighs-in-on-hacienda-healthcare-sexual-assault-case (last visited Jan. 21, 2019). Because of the grave nature of sexual assault and related behaviors, coupled with the lack of a clear precedent, attorneys and judges may require expert guidance. Expert witnesses in genetics, privacy, employment law, negligence, sexual misconduct, and other fields may hold the key to persuading courts in a certain direction on this matter.
In the present case, DNA testing was already conducted by the police, but there may not be preexisting samples in every instance. When an entity is sued for negligence involving sexual misconduct, and the individual perpetrator is unknown, it may be important to determine his or her identity for a number of reasons. These reasons include preventing future sexual violence, affixing liability on the culpable party or parties, and determining to what extent an individual acted as an agent or in connection with their relationship with an employer or similar entity. Expert witnesses can help address how to best mitigate or eliminate the risk of sexual violence while complying with legislation, or, in the alternative, provide a compelling reason to make an exception to a law, in order to protect public safety or remedy a grave injustice.
(2). Institutional Liability: Aside from the criminal investigation, the parents of the Apache woman who was sexually assaulted have charged the facility where their daughter was placed with gross neglect. See, e.g., CBS News, supra. The institution, which houses “medically fragile” and disabled individuals, faced a prior complaint in 2013 over a staff member who made sexually inappropriate remarks, which were never reported to an administrator. See id.
Eighty-three percent of disabled women are sexually assaulted, so the standard of care and safety in settings that serve disabled people is particularly important. See, e.g., Robyn Powell, “The Rape of an Arizona Woman in a Coma Is Not an Isolated Incident,” Rewire News, Jan. 10, 2019, at https://rewire.news/article/2019/01/10/the-rape-of-arizona-woman-in-coma-is-not-an-isolated-incident/ (last visited Jan. 21, 2019). In 2018, a woman’s family sued a long-term care facility, based on claims that she was sexually assaulted numerous times while in the entity’s care, and that the institution failed to take action when the woman’s daughter expressed concerns to the director of the home. See KDSK Staff (an NBC affiliate), “$1 billion lawsuit: Ferguson nursing home allowed sexual assault of 84-year-old,” Sep. 20, 2018, at https://www.ksdk.com/article/news/crime/1-billion-lawsuit-ferguson-nursing-home-allowed-sexual-assault-of-84-year-old/63-596499304 (last visited Jan. 21, 2019). One disability rights expert noted that sexual assault in nursing homes and similar facilities is more widespread than people realize, and a number of lawsuits have been filed, charging such institutions with neglect because of sexual abuse or assault against residents. See id., See also Robyn Powell, supra.
Civil litigation against care facilities for neglect regarding sexual misconduct may require expert witness assistance to be resolved. Experts in neglect and abuse at these types of facilities, sexual violence, and institutional liability may help guide courts to make the tough decisions that are necessary in such cases. As one commentator notes, “Though the scope of the problem is hard to assess — research on abuse of patients living in long-term care facilities lags decades behind research for other populations — experts say those patients are particularly at risk of becoming victims of abuse or sexual violence because of how often they’re at the mercy of others to live their lives.” Amanda Sakuma, supra.
In the case at hand, many analysts expressed disbelief that the care facility did not know of the woman’s pregnancy until she went into labor. See, e.g., CBS News, supra. Aside from the #MeToo issues, a negligence action may be brought because of the home’s failure to take any action while the woman was pregnant or notify anyone outside the facility. Experts in negligence and medical issues may be able to address the liability of institutions that claim not to know (or demonstrably do know) of a pregnancy or other medical development and fail to take action.
(3). Regulatory Issues: Part of why litigation over institutional negligence may proliferate is because of a rollback of prior regulations on nursing homes and similar facilities that endangered their residents. See id. Without regulatory guidance, lawsuits may be needed to fill the gaps and create policies to provide some redress to sexual assault survivors. More importantly, perhaps, there is a need for prophylactic approaches that will better protect vulnerable people, like disabled individuals in long-term care settings. See, e.g., id. Subsequent to the woman giving birth, the Arizona Department of Health Services implemented additional safety and security procedures for such facilities. See id.
Going forward, several experts in disability rights have suggested increased regulations on long-term care homes to prevent sexual misconduct. See, e.g., Robyn Powell, supra. For regulators or legislators considering how to best address such situations, experts on sexual violence, policy making, and disability rights may help government agents enact reforms that will better protect such vulnerable communities.
As one analyst expressed, “What happened…in Arizona is not an isolated incident. Instead, it is another example of the pervasive issue of sexual assault against people with disabilities as well as Native women. As we continue as a society to address the issues surrounding sexual assault—whether through activism, legislation, journalism, or professional regulations—these efforts must be inclusive of the most at risk and the most often overlooked.” Id.
The legal community has an important role to play in #MeToo conversations and can help address sexual violence through civil litigation and regulation. By bringing these discussions into the civil dimension, attorneys open up additional possibilities for redress and prevention of future harm. With the help of experts, litigators and policymakers can navigate relatively uncharted territory and fashion effective approaches to minimize future instances of sexual abuse and help those who have previously been unheard.
 For clarity, Associated Press-1 refers to a January 19, 2019 report that was republished as a brief story in The Washington Post, while Associated Press-2 is an article from the same date that provides more information and that US News & World Report published.