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Randi McGinn: UNM case illustrates risks for women who report a rape

By Joline Gutierrez Krueger / Albuquerque Journal Friday, November 10th, 2017 at 11:42pm

ALBUQUERQUE, N.M. — The words that fell from his lips in an Albuquerque courtroom crystallized the concerns women struggle with over whether their own words will be believed if they report being raped, assaulted or beaten.

“We have no evidence she was raped,” he said. “We have no evidence, only allegations.”

The words were those of Dr. John Wills, then the University of New Mexico anesthesiology department chairman and one of three male supervisors who had interrogated Dr. Cynthia Herald, a second-year anesthesiology resident, about her allegation that she had been raped by a senior anesthesiology resident in June 2009 and was forced to continue to work with him at the UNM Health Sciences Center until she was fired a year later.

Wills, one of several witnesses who testified this week in Herald’s whistleblower lawsuit against UNM, later appeared to soften his previous testimony by stating that he had in fact believed Herald’s allegations from that September 2009 meeting — what he could remember of them, anyway — but that nothing was done because she had requested nothing be done.

Nothing good had been done for Herald, who according to testimony presented thus far at trial was encouraged not to go to police so as not to tarnish the reputation of the medical school, was refused initial repeated requests for a leave of absence to deal with what was diagnosed by three evaluators as post-traumatic stress disorder, was forced to continue to work with her accused tormentor, was scrutinized and unsupported by her superiors and was maligned as a substance abuser who was dangerous to patients.

 In June 2010, she was terminated from the residency program, thus ending her dream of becoming a doctor.

Her accused rapist was never questioned, never investigated, never charged with a crime, never at risk of losing his dream.

“You’re the one under the microscope and treated like a criminal when I have been trying to get the story out that this man is dangerous,” a tearful but defiant Herald testified Thursday. “Someone has to persist.”

Herald has. She filed her lawsuit against UNM in 2011, but lost at trial in 2013. She successfully appealed a previous ruling by state District Judge Shannon Bacon, brought in attorney dynamo Randi McGinn  to join counsel Lisa Curtis on her legal team and her case lives on, though now more narrowly focused on whether UNM violated her rights under the New Mexico Whistleblower Protection Act by retaliating against her once she reported the rape.

Trial, once again before Bacon, began this week and will continue next week when attorneys for UNM — both women — get their chance to present their side. Beyond the legalese arguments that what happened to Herald had nothing to do with whistleblowing, their case is expected to include damning testimony of how she shouldn’t be believed — how they contend she lied about what was said in that meeting with her superiors, that her misuse and misappropriation of benzodiazapines (like Ativan and Ambien, both of which she had prescriptions for) had caused her to go from a stellar resident to one who was dangerous to patients and how she was offered help but refused.

It should be noted that although a UNM employee was present at that meeting to record what was said and prepare a report, no report or notes exist. An evaluation of Herald’s narcotics use found that she was not an abuser. And an expert with the National Center for Higher Education Risk Management testified that everything that was done after she disclosed her rape — in particular how her supervisors, who lack the expertise or sensitivity to question a rape victim, should have never been allowed to interrogate her — was handled about as badly as it could have been.

Testimony this week also revealed that the man accused of raping her had been cautioned by a former roommate to seek help for alcoholism and violence toward women.

 All the testimony will need to be sorted out by jurors, who during the trial have been admonished not to read newspapers or listen to news and so will know nothing about the recent national focus on sexual assaults.

Herald testified this week that after she was raped — an attack so brutal that it left bruises on her chest, arms and legs — she had gone to a medical clinic, took photos of the bruising, told several friends but had chosen not to go to police because she believed she had everything to lose and nothing to gain.

“Instead of being the doctor who was competent, I was always going to be the doctor who was raped,” she said.

Questioned whether she would have reported the rape, either to police or her UNM supervisors, were she to have the chance to do things over again, she paused, then said: “Probably not.”

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