The Free Press, Mankato, MN

January 10, 2013

Todd Gavin not guilty of sexually assaulting patients

Eye doctor cleared on all counts

By Dan Linehan
The Free Press

MANKATO — Todd Gavin was cleared by a jury Thursday of all six sexual conduct charges after two women reported they had been inappropriately touched by the eye doctor or unnecessarily disrobed at his request.

He hugged his crying wife as the judge read the sixth "not guilty," then embraced one of his attorneys, Michael McDonald. All 12 jurors were asked to call out their verdict, and the four women and eight men confirmed: "not guilty."

The jurors ignored requests for comment as they filed out of the Justice Center single-file after the verdict and about five hours of deliberation.

The case largely pitted Gavin's word against that of his patients, though McDonald said there was more doubt about the prosecution's case than in some other "he said/she said" cases. The attorney also said the six character witnesses helped to describe his client as a doctor with integrity.

The case began on May 17, 2010, when two women were examined by Gavin in back-to-back appointments at the Mankato Clinic. One woman reported the alleged assaults that night, and the other waited until August of that year.

During closing arguments Thursday morning, the prosecutor sought to establish certainty in jurors' minds and the defense attorney tried to plant doubt, apparently successfully, in that account.

Each of the two women suffered from a "betrayal of trust," Assistant Blue Earth County Attorney Michael Hanson said.

"Both of these young women went to the doctor for issues concerning their eyes and they were taken advantage of," he said.

The defense, though, described a doctor punished for being thorough.

And even if he had wanted to molest a patient, it's implausible he would have chosen these two, McDonald said.

"I'll pick the one whose mom is in the room with me," he said sarcastically.

And the second woman had "shingles that could be connected to AIDS," making her another unlikely target, he said.

Both women's names were repeatedly mentioned in court, though The Free Press does not identify alleged victims of sexual abuse in criminal cases.

While both women made similar claims, the jury had to weigh different competing claims in each case.

No. 1

The first woman, accompanied by her mother during the 2010 exam because she has a learning disability, saw Gavin for about 10 minutes that day for what the prosecution said was a routine exam.

About 10 weeks later, she told police that Gavin asked her to take off her clothes, then felt her breasts after asking if she'd had a yearly breast examination. She told police she felt uncomfortable and violated.

To Hanson, the bottom line was this: There was no medical reason to examine or touch her breasts, and Gavin even admitted as much in later discussions with his peers.

The defense rebuttal: She took her shirt off without being asked and Gavin merely apologized to smooth over relations with his patient. Gavin said Wednesday he didn't touch her breasts or try to persuade her to lift up her bra.

"Yeah, it shouldn't have happened because she shouldn't have taken her shirt off," McDonald said.

And though Gavin later said his actions were "over the line," his defense attorney characterized that as something less than a confession.

"You're sorry when something happens," McDonald said. "A patient is a customer, you want them to be satisfied."

Hanson said the doctor, normally thorough in his reports, didn't mention that his patient had taken her shirt off without permission.

"He didn't say anything about it because it didn't happen that way," Hanson said.

Jurors were left wondering who to believe -- did the patient take off her shirt without permission or did the doctor persuade her to do it and then touch her breasts?

The defense attorney tried to plant some doubt about the latter scenario. He said it's not plausible Gavin would sexually assault a woman whose mother was in the room, especially not on a day when he saw six patients in an hour. And McDonald asked why Gavin would throw away a career and a family.

"The answer is simple," Hanson responsed. "Because he could."

No. 2

The second woman, who was seen immediately after the first that day, reported an alleged sexual assault to police that evening. She told police that Gavin asked her to remove her shirt and bra, which she did, then asked her to take her pants off.

She also said Gavin pulled the back of her jeans out and looked down at her buttocks -- he said he was looking for sores of the type seen around her eye -- though Hanson's closing argument focused on the doctor's attempts to get her to take her clothes off.

"He said he needed to look at her body for rashes. There's the deception, ladies and gentlemen," Hanson said.

He was referring to the three most serious charges in the case, felonies, wherein sexual contact is accomplished through "deception or false representation that the contact is for a bona fide medical purpose."

It did not matter if the women allowed the contact -- consent is not a defense for this particular charge of sexual assault.

In this case, Gavin's attorney did not say the victim lied about what happened, only that she misunderstood it. A story to plant reasonable doubt in the jurors' minds went all the way back to Gavin's medical training at the University of Minnesota in the 1980s.

The HIV/AIDS epidemic was in full swing, and Gavin has not forgotten the facial lesions of its victims, McDonald said.

So Gavin was going above and beyond his duty by asking his patient to disrobe, McDonald said.

And he didn't tell his patient all of this because he didn't want to scare her, he said. The patient responded the way she did because of a different "generational perspective."

"Sometimes, young people can think they know everything," McDonald said.

In other words, what the prosecutor described as an excess of prurience, the defense described as an excess of medical diligence Ñ it was a question not of act, but of motive.

The prosecutor used a brief rebuttal to plant some doubt about the defense's story.

"I can't imagine a patient not wanting to know" that they might have HIV or AIDS, he said.

"Does that make sense?" he said of the story.

Hanson declined comment after the verdicts were read.