ACLU files suit over forced catheterization process

Published: Jun. 29, 2017 at 9:41 AM CDT
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The American Civil Liberties Union of South Dakota filed a lawsuit Thursday that challenges the use of forced catheterization.

The suit names the South Dakota Department of Social Services, Avera St. Mary’s Hospital, members of the Pierre Police Department, the Sisseton Police Department, and the South Dakota Highway Patrol.

According to a statement by the ACLU two lawsuits have been filed. One lawsuit was filed on behalf of a three-year-old child who was forcibly catheterized as part of a effort to collect evidence of child abuse or neglect. The second suit is on behalf of five adults who were subject to forcible catheterization as part of criminal investigations.

The ACLU says forcible catheterization is a violation of the Fourth Amendment’s protection against unreasonable searches and the Due Process Clause of the Fourteenth Amendment.

In the first case, during the investigation into a suspected case of child abuse and on the order and direction of the South Dakota Department of Social Services, the ACLU alleges Avera St. Mary’s Hospital in Pierre forcibly catheterized a three-year-old boy. The South Dakota Department of Social Services obtained involuntary and coerced consent from the child’s mother, who was being investigated after her boyfriend was arrested for a probation violation, under the threat of the removal of her children. The complaint filed on her behalf and on behalf of her child challenges the practice of catheterizing children who are suspected of being victims of child abuse in violation of their rights under the Fourth Amendment, the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. The child was emotionally traumatized and suffered a staph infection as a result of the catheterization.

“Forcible catheterization is painful, physically and emotionally damaging, and deeply degrading,” said Heather Smith, ACLU of South Dakota Executive Director. “Catheterization isn’t the best way to obtain evidence, but it is absolutely the most humiliating. The authorities ordered the catheterization of our clients to satisfy their own sadistic and authoritarian desires to punish. Subjecting anyone to forcible catheterization, especially a toddler, to collect evidence when there are less intrusive means available, is unconscionable.”

In the other case, the ACLU alleges adult plaintiffs were forcibly catheterized by the police after they forced the police to seek warrants for the collection of bodily fluids. The ACLU says none of the search warrants obtained by police specifically authorized forced catheterization as a means of obtaining evidence. The complaint argues that forcible catheterization is a practice that runs afoul of the Fourth Amendment, the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment.

“The Fourth Amendment guarantees people the right to be free from unreasonable government searches,” said Courtney Bowie, ACLU of South Dakota Legal Director. “There is nothing reasonable about forcibly catheterizing a child. The Constitution’s purpose is to protect people from government intrusions exactly like this.”

The ACLU of South Dakota says it wrote the Department of Social Services in April to demand they stop catheterizing children and provide an explanation as to the details of the search on the child and why it was permitted. The lawsuit, filed in the United States District Court in South Dakota, seeks a declaration of the unconstitutionality of the practice and monetary compensation for the individuals in the amount to be determined by a jury.

In a statement Thursday morning, Avera Health said "at this time, Avera St. Mary’s has not been served with any lawsuit related to the media reports and we will not comment beyond this release regarding any allegations associated with these matters. As we have previously stated, Avera has long recommended that care never be forced on anyone. We have communicated this position to law enforcement and conducted staff training. We will continue to communicate our position on forced withdrawal of bodily substances to law enforcement. Avera St. Mary’s will defend any claims made related to these matters and looks forward to supporting our staff involved and seeing that Avera and our staff are vindicated."

The Department of Social Services said it cannot comment on pending litigation. It says as DSS has previously indicated, the department does not determine the method of drug screening or perform medical tests or procedures, those decisions are made by licensed medical professionals.

The South Dakota Highway Patrol said it does not comment on pending litigation.