Dane County prosecutors dismissed a felony sexual assault charge against a former UW doctor Tuesday, agreeing with the doctor’s attorneys that a “poorly drafted” state law under which the charge was filed doesn’t apply to the facts of the case.
“The Legislature chose to use very odd wording in the statute,” Assistant District Attorney William Brown told Circuit Judge Everett Mitchell, who agreed to dismiss the second-degree sexual assault charge against Dr. Michael Thom, 69.
Thom still faces a misdemeanor fourth-degree sexual assault charge for the incident at a UW Health clinic in December 2016 and pleaded not guilty to the charge Tuesday.
In that incident, a criminal complaint states, a female patient alleged Thom improperly touched and kissed her during and after an examination.
“It may seem odd that the facts contained in the complaint do not show a violation (of the statute),” Thom’s lawyers — Stephen Hurley, Jonas Bednarek and Marcus Berghahn — wrote in a motion filed in the case last month. “That was the choice of the Legislature.”
Thom resigned in 2017 after the sexual misconduct allegations were raised, but before the state Medical Examining Board opened a case against him.
In March, Thom was charged with second-degree sexual assault “by an employee of a child welfare agency or care/service residential facility,” based on allegations made by the patient.
In their motion, Thom’s lawyers wrote that the statute makes it a crime for “a licensee, employee or nonclient resident of an entity,” as defined under two other state statutes, to have sexual contact or sexual intercourse with a client of the entity.
None of the entities described in the two other statutes — a child care or child welfare agency or a residential care facility or hospital — describes the clinic where Thom worked. The UW Health clinic on Junction Road in Madison, the lawyers wrote, is neither a hospital nor an inpatient health care facility.
Thom worked for the UW Medical Foundation, not UW Health as stated in the criminal complaint, but neither of the statutes applies to those entities, Thom’s lawyers wrote.
Also, the clinic where the incident was alleged to have occurred is not licensed by the state Department of Health Services, which would be required for Thom to be subject to the sex assault charge.
Thom’s lawyers wrote that while ruling in a 2004 case addressing a portion of the same statute, the state Court of Appeals noted that the law was “poorly drafted.”
“We acknowledge that there is no readily apparent rationale for not criminalizing the same conduct if engaged in by an employee of an inpatient health care facility that is located in Wisconsin but is not licensed by (the state Department of Health and Family Services),” the court wrote. It added that, similarly, there was no rationale for the same conduct being a crime when perpetrated by employees of state treatment facilities but not by employees of other publicly or privately operated treatment facilities.
“We are to give effect, however, to the plain meaning of the language the Legislature enacted, not what its members may have intended to enact,” the court wrote.