California upholds "rape by fraud" conviction of chiropractor

By a MetNews Staff Writer


An Anaheim chiropractor who molested several patients was properly convicted of the relatively new crime of sexual battery by fraud, the [California]Fourth District Court of Appeal has ruled.

In what it said may be a case of first impression, Div. Three ruled Monday that an Orange Superior Court jury reasonably concluded from the totality of the circumstances that Chi Van Pham touched the women with sexual intent, and that the women allowed him to do so because they believed his representations that the acts were part of examination or treatment.

“There appears to be no limit to the ability of our species to devise new and different bad things to do to each other,” Justice William Bedsworth commented for the court.

Jurors found Pham guilty of four violations of [California] Penal Code Sec. 243.4(c), involving three different women.

Sec. 243.4(c), enacted in 2002, is a “hybridization of molestation and fraud,” Bedsworth explained. It makes the touching of an intimate part of the victim for sexual purposes a felony if the victim is “unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.”

The crimes occurred between 2003 and 2005. One victim testified that while she was being treated for a car accident that occurred when she was 13 years old, Pham touched her breasts and her genitals on multiple occasions.

She said those acts made her feel uncomfortable, but she believed at the time that it was part of treatment, because she had signed a consent form acknowledging that chiropractic manipulation can be discomforting and because she trusted the doctor. She did not begin to suspect the doctor had acted improperly, she explained, until two years later, when she was working as a volunteer in his office and he made unwanted advances towards her.

Another woman, an adult involved in another car accident, said that while she was being examined, Pham touched both of her breasts. She was shocked at the time, she testified, but said nothing to the doctor or his assistant at the time.

She went home, she explained, and told her mother. She called the police a few days later.

Two of the counts involved another woman, who was referred to the doctor by the lawyer representing her in an auto accident case. On two different occasions, she said, Pham performed what she described as a “tapping rub” on her breasts and around her public area.

On the second occasion, she said, she asked the doctor why it was necessary for him to touch those areas, and he told her he was “looking for pain.”

Judge Patrick Donahue sentenced Pham to seven years in prison, the upper term of four years on the count involving a minor and consecutive one-year terms on the other counts. The upper term was justified, Donahue said, because the doctor abused a position of trust.

Bedsworth, writing for the Court of Appeal, explained the unconsciousness element:

“The unconsciousness requirement does not require proof the victim was totally and physically unconscious during the acts in question....It simply requires proof the defendant tricked the victim into submitting to the touching on the pretext it served a professional purpose....This can be accomplished even when the victim has agreed to the act in question.”

There was sufficient evidence, he said, to show that the women trusted the doctor and were totally unaware that he was seeking to fulfill sexual desires by touching them, until sometime after the conduct occurred.