KKO 2011:1

The issue here was whether violation of official duty of a doctor was considered sexual abuse under the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"). A was the working doctor when B went for a breast ultrasonography. A had touched B's breast with bare hands and complemented her on her breasts. A had also massaged gel on the breasts with his hands and several times touched B's breasts. A had also, after getting permission from B, suckled the breasts in order to get excretion. The District Court and the Court of Appeal held that the procedure was not appropriate but did not amount to sexual abuse. The questionbefore the Supreme Court was whether the procedure had a sexual purpose. According to Chapter 20 Section 5(1) of the Criminal Code, a person who abuses his or her position and entices another into engaging in sexual intercourse or another sexual act or submitting to such an act should be sentenced for sexual abuse. The Court held that the procedures that A performed deviated from established and medically recommended practice. As a whole the procedure was done in a way that strongly indicated the purpose of sexual arousal or satisfaction. The fact that B had reacted only afterwards was not significant. The Court held that doctor and patient are not in an equal position and the fact that a patient agrees to a medical examination does not imply that the patient would give up her sexual self-determination. The Court saw that A had misused his position as a doctor and found A guilty of sexual abuse and violation of an official duty in accordance with Chapter 40 Section 9(1) of the Criminal Code. The Court found that this was only a single incident towards a consenting adult and sentenced A to pay 80 days-fine and damages to B of 1,200 Euros.