JUNEAU, Alaska — A Juneau lawmaker has introduced a bill aimed at closing a gap in state law that has made it harder to prosecute medical providers accused of sexually assaulting patients during treatment.

The legislation follows a high-profile Juneau case in which a chiropractor was accused of assaulting more than a dozen patients during treatment.

The bill is the latest in a decadeslong pattern of proposed changes to state law prompted by sexual assault cases involving health care providers.

One subsection of Alaska law defines sexual assault by medical provider during treatment, which says it is a crime of sexual assault in the first or second degree when the offender knows that the victim is unaware of the sexual contact during the professional treatment of the victim.

In other words, if a victim testifies that they were aware that the contact was assault as it was happening, the prosecutor may not be able to secure a conviction.

House Bill 242, sponsored by Democratic state Rep. Sara Hannan, seeks to take out that "unaware" requirement so that a victim of a sexual assault by health care worker could be aware of the assault as it occurs and the specific charges could still be pursued.

Hannan has said the need for the bill directly stems from a case against Juneau chiropractor Jeffrey Fultz. Of the charges brought against him, a trial jury in September found Fultz not guilty on two counts while 14 charges resulted in mistrials. A judge later dismissed one of the charges that had resulted in mistrial.

Now, prosecutors are working to retry him on the eligible charges, with the next hearing scheduled for April 15, according to online court records.

Hannan decided to pursue the legislation after reporting by Juneau's KTOO highlighted that the dismissal stemmed from a gap in state law.

The charges that Fultz was acquitted of related to allegations brought by former patient Jamiann S'eiltin Hasselquist. Hasselquist testified in favor of Hannan's bill at two legislative hearings and described the day, sitting in the courtroom, when she heard the charge stemming from her case was being dismissed.

"I was in complete disbelief. I heard my initials, and I heard that my charges were being acquitted, and I was like, 'Oh my — oh, my gosh, that's me they're talking about,' " Hasselquist said at hearing Friday before the House Judiciary Committee.

"Current law creates a gap that allows perpetrators to use their professional power and position over patients, and awareness of this behavior does not mean consent. Awareness doesn't mean that a patient feels safe enough to stop what's happening or challenge a medical provider for what's happening in the moment," Hasselquist said.

Ex post facto laws

It wasn't until July 2022 that lawmakers removed the requirement to prove force to prosecute sexual assault. That law established that lack of consent alone constitutes assault.

Hypothetically, if a medical provider did not use force while sexually assaulting a patient during the course of treatment, where the patient was aware of the assault as it occurred and the crime took place after July 2022, Alaska prosecutors could try that case under the updated law.

Still, they would have to prove that the sexual contact did not occur as part of legitimate treatment.

If HB 242 were to pass, Senior Assistant Attorney General Casey Schroeder said at a hearing Friday, it would allow prosecutors to charge cases under these circumstances with higher penalties, as the law takes into account the abuse of power at play when a medical provider assaults a patient during treatment.

But the assaults Fultz was accused of occurred from 2014 to 2020. The state constitution prohibits ex post facto laws, meaning when harsher laws are enacted, they cannot be applied retroactively to actions taken before that law took place.

That means that cases such as Fultz's are still governed by older laws. Because Fultz was acquitted on the charge involving Hasselquist, it cannot be refiled, even if HB 242 were to become law.

Schroeder said the Department of Law sees "very, very few cases" charged under the existing law. From 2016 to 2022, a total seven cases were charged under the "unaware" subsection of the law.

A history of case-driven reform

High-profile cases involving medical providers have repeatedly driven changes to sexual assault statutes in Alaska.

In 1991, state prosecutor Val Van Brocklin secured the conviction of gynecologist Kenneth Ake for sexually assaulting six patients during exams.

At the time, state law required proof of force, restraint or confinement. A district attorney initially declined the case, doubting it could meet that threshold.

Van Brocklin successfully argued that the circumstances of a medical exam — with patients positioned on an elevated table and the doctor between them and the door — constituted restraint and confinement.

The women, draped with a sheet over their knees, could not directly see the assault. When reports of the case spread, much of the public initially assumed that the women weren't aware that what was happening was rape.

"Everybody initially assumed the victims were unaware of what had happened to them. They were not unaware," Van Brocklin said in an interview.

But the response to the case was shock and horror — first because the case was initially declined at the district level, and second because if the women had been unaware that the crime was happening, it may not have been prosecutable, Van Brocklin said.

In response, lawmakers passed, as one piece in a package of reforms called the Anti-Violent Crime Act package of 1992, a change to law that added the "unaware" language now at issue. Alaska law states that an offense occurs when a provider engages in sexual contact with a patient "who the offender knows is unaware that a sexual act is being committed" during treatment.

Lauree Morton, now deputy director of the Alaska Network on Domestic Violence and Sexual Assault, advocated in the 1990s to change the law to what it is now, spurred in response to the Ake case.

"So we added to the law, not considering that one day we would need to be back here, because the judge would say, 'She knew it was happening, so it's not sexual assault,'" Morton testified to the House Health and Social Services Committee.

A bill narrow in scope

At the bill's committee hearings, lawmakers questioned whether or not to broaden the scope of the legislation: How should the law dictate what contact is and isn't part of legitimate medical treatment? And in cases where a medical provider is assaulting patients, what can the Legislature do to make these crimes easier to prosecute?

But in moving forward with the bill, Hannan has made clear the intent and focus of this legislation is on removing the "unaware" clause of the law, closing this particular loophole.

"There may be other parts of sexual assault laws that should be cleaned up, but this is not an attempt to do it. It is an attempt to craft a solution to both an extensive prosecution and a judge's dismissal where you know it's not a fault of the judge," Hannan said.

Christina Love, an advocate for survivors of domestic violence and assault, and a survivor herself, testified in support of the bill on Friday. She urged legislators to move forward the bill as it is currently written, though emphasized that there is more work to be done.

"There are more loopholes to be closed to lessen the burden on us. And I would ask that, if that is something that you are interested in, that we take that up next year. For this bill, I hope to see it pass through." Love said.

"This bill, in its simplicity, has been written as it is to close the awareness part."

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