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Tuesday, November 30, 2021

HIV specialist is fined 36,000 euros for sexual abuse

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Many years ago, the globally recognized doctor was first accused of abusing his position as a doctor. A verdict has now been passed – but the case may not be closed yet.

On the 22nd day of the trial, a scream rang out in front of room 135 of the Berlin District Court. Two men embrace in the hallway, they are surrounded by several confidants. They all came to support one of the sacrificial witnesses. The convicted doctor Heiko J. and his legal representatives had long since disappeared down the aisle and could no longer be seen.

The verdict for sexual abuse: 150 daily rates of 300 euros each

This Monday, the Berlin HIV specialist Heiko J. was sentenced to a fine of 150 daily rates of 300 euros in a case of sexual abuse taking advantage of the treatment relationship. He has waived 30 daily rates because the procedure had taken an exceptionally long time.

Heiko J. was acquitted in three other cases. The prosecutor had requested eleven months probation in three cases. Another case was cut off because the witness, a trans woman, is currently psychologically incapable of interrogation. In a fifth case, the public prosecutor had pleaded for acquittal. In favour of the doctor, the court took into account that Heiko J. had not previously appeared under criminal law and was personally burdened by the proceedings – both because the proceedings had dragged on for so long and because of the press coverage of the case. The sexual act on his patient was also very short and did not move at the upper edge of what is imaginable, according to the presiding judge Rüdiger Kleingünther.

Nevertheless, after the judgment in front of the hall, relief was sometimes to be observed. “Very happy,” said the victim-witness, in whose case the conviction had been given, even if he regretted that the doctor was only convicted in his case. The witness had appeared at almost every trial date. His legal representative Undine Weyers also said: “I am very happy that there was a conviction. Otherwise, I would have lost my belief in the rule of law. ”The doctor’s defence lawyer, Stefan König, did not want to comment shortly after the verdict.

MeToo allegations had been negotiated in Berlin for more than six months

The MeToo allegations had been heard by a jury for over half a year. However, the allegations negotiated in the process go back much further, almost a decade. And so it was a tedious process for everyone involved. In meticulous detail, the court tried to reconstruct situations in the doctor’s room that not only existed many years ago but were also largely one-on-one situations. The victim-witnesses had to face hours of sometimes aggressive questioning by the defence – especially by Johannes Eisenberg, one of the HIV specialist’s lawyers.

In the end, doubts prevailed at the district court. This is one of the reasons why the court acquitted Heiko J. in three other cases. The gaps in memory were too great in one case, and in a second it was too unclear whether the witness even had the psychological prerequisites to make a statement corresponding to the facts. And in a third case, too, the court simply does not know what really happened. The principle of doubt therefore applies, so Kleingünther – in other words, in case of doubt, for the defendant.

MeToo allegations against doctor: comments, kisses, touches

The doctor had been accused of having used his position as a practitioner to sexually arouse his homosexual patients in five cases. There had been talk of suggestive comments at the hearing, of examinations on completely undressed patients, of kisses in the treatment room and also of inappropriately touching his patients on the penis and prostate. The doctor was almost completely acquitted of these allegations by the court ruling – he was convicted for manipulating his patient’s penis in one case without medical necessity.

The doctor had denied all allegations throughout the process. He always acted according to medical standards. The doctor’s defence had stated that it was a matter of misunderstandings – and emphasized the merits, in part also the unusually progressive examination methods, of the large gay neighbourhood practice.

The allegations against the doctor, however, go far beyond what has been negotiated in the district court of Berlin-Moabit in recent months.

More than 50 men reported MeToo allegations in research by BuzzFeed News

BuzzFeed News Germany (now Ippenburg Investigative *) and VICE had in September 2019 after months of research for the first time publicly about the alleged sexual abuse allegations reported. The publication was warned in the first instance and around a year later the Berlin Court of Appeal approved in large parts.

After the initial coverage almost two years ago, more than 60 other people contacted BuzzFeed News / Ippen Investigativeto report further allegations against Heiko J. More than 50 men described suspected border violations, assaults and sexual abuse that they themselves, they say, had experienced through the doctor. The accounts of these alleged events span a period from 1997 to 2019. BuzzFeed News and VICE had already spoken in detail with seven other people for the first research.

At that time we had confronted all of the research we published in detail on several pages. The doctor did not go into detail on the descriptions of the sources contained therein, but he had repeatedly denied the allegations in previously written pleadings. In order to comment in detail on the allegations, lawyer Johannes Eisenberg asked for the names of those allegedly affected. For source protection reasons we could not present them. We checked the allegations made by the allegedly affected persons with all possible journalistic due diligence, also on the basis of numerous documents, news and conversations with people familiar with the sources. It is the presumption of innocence.

Allegations of abuse against the doctor had been known for years

Our research had shown that the allegations against the doctor had been known for many years. The Medical Association had already investigated the allegations in 2013, and since 2002 at least ten administrative procedures have been filed with the doctor, including two investigations into alleged sexual abuse. The medical association did not provide information on what the other cases were about. The police also investigated, in 2014 the public prosecutor took over, and two years later they finally brought charges.

According to the local court’s press office, the fact that it took until 2021 to open the trial was due to the fact that the case was particularly controversial and difficult to terminate due to its large size – originally the court had set eleven trial days. Up until our publication in autumn 2019, the allegations were known within the queer community but had not been made public.

Against this background, the judgment has a signal effect that should reach far into the queer scene. “The process has kicked off a lot in the scene to find the courage to talk about it,” said co-plaintiff representative Barbara Petersen. The majority of the reports of abuse are usually posted in advance, so she is very happy that a conviction is at all at the end of this process. Petersen also emphasized how exhausting the entire procedure had been, also for her client, who had been significantly affected by the whole procedure – and in whose case Heiko J. was nevertheless acquitted. She experienced the process as a “shark tank”, and the doctor had better chances through his extensive legal representation alone. “I understand when people don’t go there,”

Incomprehension among the lawyers of the co-plaintiffs

Other reasons were given by the presiding judge Kleingünther in the reasoning for the judgment, however, met with incomprehension among the co-plaintiffs. In one case, the latter justified the acquittal by stating that it was a meeting between two men, “without coercion, deception or error”. The power imbalance between doctor and patient was not relevant for the court, at least in this case.

The corresponding criminal law paragraph does not fundamentally question sexual contact between doctor and patient, said Kleingünther. The fact that this paragraph was specially created almost two decades ago to take into account the particular dependency between doctor and patient apparently did not change the judge’s assessment. Not even that the Federal Court of Justice made it clear several times and many years ago that mutual consent in the doctor-patient relationship does not automatically lead to impunity.

In the case of Petersen’s client, on the contrary, the court saw too many indications that he had “an interest beyond criminal prosecution”. For example, that the man already went to the practice to prove the doctor was wrong – also because he had exchanged ideas with at least one other co-plaintiff. According to the court, the man was already convinced before the appointment in question that a doctor, in principle, had more power than a patient.

She doesn’t understand that at all, said Petersen shortly after the verdict. Fortunately, her client was looking for other victims so that he would not have to fight the process alone. She by no means sees this as an increased interest in persecution.

According to the MeToo judgment: will the doctor’s license be withdrawn?

Whether the Heiko J. case will be closed with this judgment is still open, the judgment is not yet final. Neither the public prosecutor nor the doctor’s defence counsel or the accessory prosecutors could say today whether they will appeal the judgment.

What this judgment means for the medical professional’s future remains to be seen. The State Office for Health and Social Affairs in Berlin (Lageso) is responsible for the approval of the doctor. As early as November 2016, proceedings against Heiko J. were initiated there with a written hearing from the doctor, it was said on request. The Lageso wanted to check whether the doctor’s license to practice medicine should possibly be suspended. With that, he should not practice for a long period of time. However, the entire proceedings of the Lageso have suspended shortly afterwards – the factual and legal situation had not been clarified with sufficient reliability, the press office announced a few months ago on request. With the first-instance judgment from the criminal proceedings, the Lageso could now reassess the situation. *Ippen Investigative is the research team at IPPEN.MEDIA.

UPDATE: November 12, 2021
The public prosecutor’s office and the defence have appealed against the judgment, the press office of the Berlin District Court announced on request. The procedure is then transferred to the regional court. It has not yet been determined when negotiations will take place there.

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