Kumar v R

A clinically indicated intimate medical examination may constitute an indecent assault if it is carried out in an inappropriate manner and used as a cloak for intended sexual gratification. A patient’s consent extends to a proper medical consultation and examination, but no further.

The rule that secret sexual satisfaction from a properly conducted necessary examination does not itself make the examination indecent does not govern where the prosecution alleges sexually improper conduct in carrying it out. A judge need not direct a jury on remote theoretical possibilities that the defence has not raised.

The appellant, a general practitioner, was convicted at Preston Crown Court of three counts of indecent assault and sentenced to concurrent terms of nine months’ imprisonment. He appealed against conviction only on count four, concerning the examination of a 17-year-old patient who had attended with a breast lump.

The examination was clinically indicated. The prosecution alleged that it was performed in an improper and sexually motivated manner; the appellant maintained that he had conducted a proper examination with a chaperone present. The jury asked how a required breast examination could constitute an indecent assault. The central issue was whether the judge’s answer misdirected the jury in light of R v Court [1989] AC 28.

1. Appeal dismissed. The conviction on count four was safe. The jury had been properly directed to decide whether the appellant had used a clinically indicated examination as a means of obtaining sexual gratification, rather than carrying out a proper medical examination.
2. A patient who agrees to an examination consents only to an appropriate medical consultation and examination. Where the prosecution case is that the examination was carried out in an inappropriate manner, and that its purpose was sexual gratification, the clinical indication for an examination does not prevent a conviction for indecent assault.
3. The Court distinguished R v Court [1989] AC 28. That authority concerned the limited proposition that a necessary medical examination properly conducted for genuine medical purposes is not rendered indecent merely by an undisclosed sexual motive or unintended sexual satisfaction. Here the prosecution did not allege a proper examination accompanied only by a secret motive. It alleged conduct which went well beyond proper practice and was itself sexually improper.
4. The judge’s four possible formulations did not invite conviction where a legitimate examination had been properly carried out in all respects. His reference to a dual intention accurately addressed the prosecution case: a clinically justified examination could be used from the outset as a cover for sexually motivated improper conduct.
5. There was no need to direct the jury about the remote possibility that a doctor carrying out a proper examination might unintentionally obtain sexual gratification. That possibility had not been raised by the defence and was not part of the evidence or the prosecution case.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction on count four: [2006] EWCA Crim 1946.
• Crown Court at Preston — in November 2002, Judge Blake convicted the appellant of three counts of indecent assault. On 3 January 2003, the judge imposed concurrent sentences of nine months’ imprisonment.