KIMBERLY A.

WILLIAMS
STATE REPRESENTATIVE
19th District

HOUSE OF REPRESENTATIVES
STATE OF DELAWARE

C O M M IT T E E S
Education, Vice Chair
T e l e c o m m u n i c a t i o n , In t e r n e t &
Technology
Housing & Community Affairs
Labor
Veterans Affairs

41 1 LE G IS LA TI VE AVE NU E
DO VE R, DE LA WA RE 19 90 1

The Honorable Jack A. Markell

Governor
150 Martin Luther King Jr. Boulevard- South
2nd Floor
Dover, DE 19901

September 18, 2015

Dear Governor Markell,

As the prime sponsor of House Bill 130, I am contacting your office in response to your decision to veto this
legislation, which unanimously passed both the House and the Senate before the General Assembly recessed on
July 1.
When I was informed of your action, I was both shocked and disappointed to learn that HB 130 had been
vetoed. Your office failed to communicate any serious concerns with the content of HB 130, despite repeated
communications with your office requesting a signing ceremony for the bill, with the first exchange occurring
prior to the bills Senate passage and followed by subsequent weekly inquiries beginning in early July.
Absent any communication regarding HB 130, your veto message appeared to come out of the clear blue. This
legislation was vetted and approved by the Criminal Justice Council and the Delaware Department of Justice,
not to mention the 59 legislators present when votes were taken on the bill. No other stakeholder group
expressed formal opposition to the bill during the legislative process.
The purpose of this letter is to respond to certain objections outlined in your veto message, with the hope that I
can engage both you and members of your administration in an open and productive dialogue on this issue. I
believe it is imperative to take action on behalf of those who are victimized by medical professionals while
under their care, and it is our obligation as state policymakers to identify ways to appropriately penalize and
deter this inappropriate conduct.
Your veto message states it is already illegal for a health care professional, social worker or counselor to have
sexual contact with a patient or client under the guise of providing treatment. The section of the Delaware
Code cited, 11 Del. C. 761(j)(4), addresses therapeutic deception, which is limited to those situations where
sexual contact, sexual penetration, or sexual intercourse occurs under the guise of providing professional
diagnosis, counseling, or treatment and where at the times of such acts the victim reasonably believed the acts
were for medically or professionally appropriate diagnosis, counseling, or treatment.

411 Legislative Avenue, Legislative Hall, Dover, DE 19901

Office: 302-744-4351 Fax: 302-739-2313 Email: Kimberly.Williams@state.de.us

It should be noted that HB 130, like statutes in numerous other states including Colorado, Connecticut, Florida,
Minnesota, and Washington, D.C., would separately criminalize all sexual contact, sexual penetration, and
sexual intercourse between health professionals and patients, in addition to criminalizing therapeutic deception.
As a result of the limited reach of the statutes relating to therapeutic deception, the experience of other states
indicates that the two crimes can and do coexist and that the criminalization of one form of conduct does not
mean the problems associated with the other form of conduct are properly addressed by the existing law in
Delaware.
Additionally, your veto message appears to suggest that the enactment of HB 130 would create an injustice, as it
would make sexual contact between health professionals and patients a class F felony, while nonconsensual
sexual contact between adults who are not health professionals is currently a class A misdemeanor. However, it
is not unusual in criminal law to punish conduct committed in a certain manner or by certain actors differently
than if committed in another way or by another actor. For example, in Delaware it is a class A felony for a
person in a position of trust, authority, or supervision over a child to have sexual intercourse or sexual
penetration with a child who has not yet reached his or her sixteenth birthday; yet, that same conduct is a class
C felony for those who do not serve in a position of trust, authority, or supervision over a child.
Your veto message further states that there are already substantial mechanisms in place to deter inappropriate
sexual contact between a health care professional and a patient. These mechanisms, administered through the
licensing boards which regulate health care professionals in Delaware, may result in various sanctions which
could potentially include loss of professional license and/or referral for criminal prosecution. You state that
these Boards are best equipped to assess the circumstances of each case and the level of harm caused to the
patient.
In response to this assertion, I have reviewed the May 2010 Final Report: Independent Review of the Earl Brian
Bradley Case published by Linda L. Ammons, Esq. and commissioned by your office. As you know, this report
was completed in the wake of the Earl Bradley case, and investigated both statutory and administrative
procedures related to physician licensing and regulation in Delaware. Ms. Ammons findings related to the
Board of Medical Licensure and Discipline reveal that, at that time, the board had a poor reputation among both
members of the public and physicians, as there was a perception among doctors and others that the Board
protects the very individuals they are required to regulate. Ms. Ammons made 18 recommendations specific to
this entity, including enhanced efforts to repair the boards reputation among practitioners and the general
public.
Another recommendation called for greater transparency in the hearing processes of the board, and that the
communication of adverse outcomes should be easily accessible public records. Currently, the board publishes
a list of disciplinary actions online. This list is in chronological order by date of action taken, and through
September, 2012, included a brief description detailing the reason for the disciplinary action. Beginning in
October, 2012, the brief description was replaced by statutory citations and references to specific board rules
that a licensee violated. Any member of the public who would like to know more about a specific disciplinary
action against a licensee in the last three years must navigate the Delaware Code, as well as the boards rules in
order to do so. Additionally, it is important to note that both the statute and the rules are living documents, and
can be amended by legislation or action by a future board at any time. Any amendments to either the governing
statute or the rules could render the citations currently referenced on the list of disciplinary actions inaccurate.
One could reasonably conclude from this recent change that the board is attempting to be less transparent with
respect to ensuring the public at large is informed of sanctions against licensees, and as such appears to be in
conflict with efforts to improve the boards overall reputation.
411 Legislative Avenue, Legislative Hall, Dover, DE 19901
Office: 302-744-4351 Fax: 302-739-2313 Email: Kimberly.Williams@state.de.us

As noted above, I believe more work needs to be done with respect to inappropriate and unlawful sexual contact
between health care practitioners and their patients. As a steadfast advocate for victims of sexual violence in the
past, you have expressed your understanding of how difficult it is for victims to come forward and seek justice
against those who have violated their responsibilities as persons in positions of trust by sexually abusing those
in their care. To that end, I respectfully request a meeting with the appropriate members of your staff to
determine a path forward. I very much look forward to hearing their thoughts and concerns as I work on new
draft legislation for the upcoming legislative session.
Sincerely,

Representative Kim Williams

19th Representative District

411 Legislative Avenue, Legislative Hall, Dover, DE 19901

Office: 302-744-4351 Fax: 302-739-2313 Email: Kimberly.Williams@state.de.us