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I have a friend who is a physical therapist and he has a…

Hello. I have a friend...
Hello. I have a friend who is a physical therapist and he has a case coming up against him for sexual misconduct due to allegedly putting his hands on a former patient at the gym where they are both members. He claims that he after exchanging hello's at the gym as they always do that he informed her that she was doing an exercise incorrectly and warned her that she might get hurt performing the exercise in that manner. She responded that she had to go see him again at his office for physical therapy that her injury was reoccurring. When she returned to the exercise machine some time later she summoned him (her former physical therapist) to correct her form. He claims that in order to correct her form he had to place his hands at her hips to keep her in position. Her claims are that he placed his hands on her gluteal area without her permission. He has no criminal history or any history of malpractice claims. He claims that prior to that his relationship with the accuser was always a cordial one an he is completely shocked by the allegation. I suggested that it may be possible to go into mediation and get this expunged from his record. I have heard of this working for some other people before with good success. To my knowledge if this strategy does not work then it will be possible to get an attorney and sue for defamation of character as well to drop the charges. Please give your opinion on the matter. Thank you very much.
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Answered in 2 minutes by:
3/18/2018
Legal Eagle
Legal Eagle, Lawyer
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today

Did the patient file an action in civil court or make a criminal complaint?

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Customer reply replied 1 month ago
he said it its he said its compliant summons at municipal court

I see. So, it's hard to know without looking at the documents whether she filed a civil or criminal complaint. If it's a criminal complaint, then the district attorney will have to prove beyond a reasonable doubt that he sexually assaulted her. Even if the DA could prove that he put his hands on her rear, if she consented to this action, then it's not actually assault.

On the civil end, this could be considered a battery, which is a harmful and offensive touching of another person; however, if she consented to this action, then it is improbable that a court would consider his actions to be unlawful. In addition, if he is a therapist who knew how to do the exercise and the facts are proven as you discussed, then the likelihood of his liability is lower. Finally, it may be difficult for her to prove damages from something like this if she didn't suffer any physical harm.

What other questions did you have for me today that I can help you out with:-)?

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Customer reply replied 1 month ago
its says criminal sexual misconduct

I see. Well, the DA would have to prove. Does he have any witnesses?

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Customer reply replied 1 month ago
my question is should he show up to his court date with a lawyer ready to sue for defamation of character or should he do into court with the belief that this is all a big misunderstanding and if that fails be prepared to have legal counsel and retaliate. It was in a Crunch gym its very open gym and he says there were several people working out with her.
Customer reply replied 1 month ago
sorry he has no witnesses only she does

I understand. So, if he has a case for defamation, then he is going to have to file that separately from this civil issue. The other problem is that defamation has a defense of a judicial privilege, meaning if someone makes a claim against another in court, they can't be sued for defamation. If she went onto Facebook and made the claim he assaulted her, then that is something that is actionable. He should be sure to try to gather his witnesses and also get a lawyer to help. If he didn't engage in this behavior at all, then he should try to fight to keep his record clean. Without witnesses and without reliable testimony, I don't have any reason to believe that a criminal charge could sustain.

Did you have any other questions for me today?

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Customer reply replied 1 month ago
if the charge cannot be sustained will it be expunged from his record?

Well, the criminal complaint will always be public record; however, it will say that he was held not guilty or that the charges were dismissed. Anyone can be charged with a crime and those charges must be public (no secret proceedings), but if they are not convicted then they do not have to worry about actually having a criminal record. Does that make sense?

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Customer reply replied 1 month ago
if she drops the charges will it be expunged?

Well, if she drops the charges, then there's nothing to expunge. Only convictions can be expunged. If a background check is run on him, the charge against him will be public, but if he's not convicted, then he will still have a clean criminal record.

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