Criminalization of Psychotherapist Sexual Misconduct

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1 Criminalization of Psychotherapist Sexual Misconduct By Sherri Morgan, Associate Counsel, LDF and Office of Ethics & Professional Review May National Association of Social Workers. All rights reserved. Introduction All states implement and enforce rules regarding the professional conduct of social workers, primarily for the purpose of protecting the public from harm. Among these rules is a prohibition on sexual contact between social workers and their clients. The ban on sexual contact is based, in part, on a recognition that clients seeking social workers services may be vulnerable and emotionally dependent and less able to distinguish between conduct that is for their benefit and that which is exploitative and for the primary benefit of the social worker. The NASW Code of Ethics (2008), Standard 1.09, prohibits social workers from engaging in sexual activities with current and former clients as well as clients relatives or close friends. It further prohibits social workers from establishing a professional relationship with those with whom they have had a prior sexual relationship. Nearly half of the states make sexual contact between a psychotherapist and a client a criminal offense, namely a felony. This article will review the status of state criminal laws banning such conduct. Overview At least 23 states criminalize sexual contact between psychotherapists and clients and nearly all of these states classify the violations as felony offenses. Variations in these provisions depend on the nature of the client s consent (or lack thereof), the client s and therapist s state of mind, and the timing of the prohibition in relation to the termination of the professional social worker client relationship. New York State is one of the most recent to pass such legislation. The Maryland legislature considered proposed legislation in 2013, but it did not pass. Louisiana has been considering a proposed measure. Time Limitations The NASW Code of Ethics (2008), Standard 1.09, bans sexual contact with current and former clients without a time limitation and without reference to whether the services provided were clinical or other in nature. This standard is the most protective of current and former social work clients. Most of the 23 identified states that criminalize psychotherapist conduct restrict the scope of the violation to narrowly address sexual contact between clinicians and current clients. Only seven of the 23 identified states have a more expansive prohibition that includes sexual contact with former clients as a criminal offense (California, Connecticut, Florida, Iowa, Minnesota, New Hampshire and New Mexico). A number of states, including Georgia, have provisions that apply to instances where the therapeutic relationship is used to further sexual contact without specifying a timeframe. Iowa, New Hampshire and New Mexico have implemented a one-year waiting period, protecting former clients from sexual misconduct for one year after a therapeutic treatment relationship has terminated. Most likely, exploitation of the therapeutic relationship could be presumed for any sexual contact that occurred during the oneyear post-termination period. California s prohibition on sexual contact with former clients has a detailed set of procedural parameters carving out an exception if the therapist refers the client for treatment to an independent practitioner who is recommended by an objective third-party (Cal. Bus. & Prof. Code 729 ). In some situations an act may be sexual misconduct under the licensure board rules, but not under the state s criminal code. For example, Colorado criminalizes therapists who engage in sexual contact with current clients (Colo.

2 Rev. Stat (1),(2) (2012)), but the social work licensure statute bans sexual contact with current clients as well as former clients for a period of two years following the termination of professional services (Col. Rev. Stat (1)(r) (2012)). Consent and the Client s State of Mind The state criminal provisions vary considerably regarding the scope of prohibited psychotherapist sexual misconduct. For example, Alaska only penalizes sexual contact by therapists if the client is unaware that sexual activity is occurring. This might occur, for example, during a state of hypnotic suggestion, drug induced state or other altered mental status. Many of the state statutes penalizing therapist sexual contact with clients include situations where consent was gained by means of therapeutic deception, whereby the clinician (or purported clinician) persuaded the client to participate by convincing the individual that the activity was an acceptable part of the treatment relationship. This deception would have to be proven. Most states with criminal penalties for therapist sexual misconduct also include perpetrators who purport to be licensed health care professionals, even if they do not actually possess those credentials. Other state law provisions limit the criminal sexual misconduct to situations where the client is emotionally dependent on the therapist. This may require an additional element of proof for a successful conviction if the dependence on the therapist is not presumed from the existence of a professional treatment relationship. In addition to criminal sex offense laws that specifically include social worker client sexual conduct (usually by referencing health care professionals, psychotherapists and mental health professionals), additional criminal code provisions may be applied to prosecute clinicians who engage in sexual activity with clients. For example, some states criminalize sexual contact that was gained through means of fraud or deception generally, without reference to psychotherapy or other health services (see, e.g., Alabama ). Other provisions that could be used as bases for prosecution are those that ban sexual contact when the offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution (see, e.g. Ohio, 2013). The Illinois sex crime statute has a general provision relating to the victim s lack of consent, which criminalizes acts of sexual conduct when the perpetrator knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. Other states may have similar general criminal code provisions that could be used to prosecute psychotherapists sexual misconduct under certain circumstances. Intention and the Therapist s State of Mind A number of states include in prohibited conduct the termination of treatment for the purpose of engaging in sexual contact. For states without a waiting period or time limitation, the therapist s intention in terminating treatment may be an element of the crime that must be proven, making prosecution more difficult. A more protective approach for victims are those statutes which make sexual contact with a client or former client the sole basis of the violation and permit good faith termination of services to be a defense which the therapist is required to prove. Reporting Misconduct of Colleagues and Others Social workers are justifiably disturbed and perplexed when they learn of another therapist s sexual misconduct with a client, especially if this information is offered by a client in the course of treatment. Many states have rules requiring licensed social workers to report misconduct of colleagues; however, this may be limited by the confidentiality obligations to the clients who may be unwilling to breach their own privacy or to submit a complaint regarding their prior therapist. This conundrum is best addressed with a thorough review of both the reporting obligation and the

3 confidentiality rules as published in the social worker licensing law in each state (ASWB, 2013) and the application of skillful clinical interventions with the exploited client. The ASWB Model Social Work Practice Act (ASWB, 2012, Section 603, 604) addresses these potential conflicts by providing a model reporting requirement that does not require identification of the client unless the client consents. In some instances this approach may still be insufficient to protect the client s identity and privacy; however, it serves to increase compliance with misconduct reporting obligations. Each state implements social worker licensing independently; but some have applied the ASWB approach (see, e.g., Ohio). Analysis and Conclusions Enforcement of sexual misconduct prohibitions is an important element for public protection from unscrupulous mental health practitioners. There are valid disagreements as to whether criminalizing such conduct is most effective or whether state licensing board and professional association review programs are sufficient. Because mental health treatment often occurs in private and clients are more likely to be emotionally vulnerable, the possibility of exploitation is a serious concern meriting appropriate safeguards. However, state criminal provisions that penalize sexual contact for current clients, but permit it with former clients without limitation or after a specified waiting period, have limited value for public protection. Waiting periods may create confusion that undermines the rationale for the ban on sexual contact with clients. Clinicians who engage with clients in dual or multiple roles act at the risk of eroding the clients trust in the therapeutic relationship and destroying the protection of appropriate clinical boundaries which exist to maintain the clients interests as primary. A waiting period to engage in sex with a former client does not meet NASW s high ethical standards, which ban sexual contact with former clients forever. Criminalization makes the penalty for a violation high, but at the same time permitting a waiting period lowers the standard by creating an artificial expiration date, so that if the same conduct occurs later it could be deemed acceptable. While NASW does not have a formal policy endorsing criminal penalties for social worker sexual misconduct, the NASW Board has approved a policy to summarily terminate the membership of social workers who are convicted of a felony without requiring a professional review proceeding (see Application.pdf; on% pdf). Most states have established that a felony conviction is considered a violation of the professional rules of conduct (see, e.g. Colorado). Thus, a conviction for sexual misconduct would also serve as a separate basis for the removal of the social worker s license in addition to being a direct violation of the professional regulatory ban on sexual contact with clients. Given the serious consequences to both perpetrators and victims of psychotherapist misconduct, it is important that social work educators and trainers incorporate appropriate guidelines for the prevention of violations. Social workers should review their state social work licensing rules for the standards on sexual misconduct, as well as the requirements for reporting misconduct of colleagues. Together with knowledge of state criminal penalties, this will enable social workers to better serve clients who have suffered from therapist sexual misconduct and to take steps to protect the public and the profession from harmful practitioners. Examples of State Statutes Criminalizing Sexual Activity by Psychotherapists with Clients (Researched May 2013) State Citation Limiting Provisions

4 Alaska ALASKA STAT (a)(4)(A)-(B), Applies to conduct that occurs during the course of treatment and (a)(4)(A)-(B), (1) when the victim is unaware that sexual activity is occurring. Arizona ARIZ. REV. STAT [I]ntentionally or knowingly engaging in sexual intercourse with a client who is currently under the care or supervision of the licensed behavioral health professional. California CAL BUS. & PROF. CODE 729 Applies to sexual conduct toward current clients and former clients when the professional relationship was terminated primarily for the purpose of engaging in those acts, unless the practitioner has referred the client to an independent and objective practitioner recommended by a third-party practitioner for treatment. Colorado COLO. REV. STAT (1),(2) (2012) Applies to clients who seek or receive psychotherapy; also, therapeutic deception. Connecticut CONN. GEN. STAT. 53a- 71(a)(6), 53a-73a(a)(4), 53a-65(9)- (12) Applies to current clients during a psychotherapy session, current or former client if the individual is emotionally dependent upon the therapist; current or former client by means of therapeutic deception. Delaware DEL CODE ANN. tit. 11, 761 Therapeutic deception. District of Columbia D.C. CODE ANN , (2012) Applies to current clients; impaired clients; therapeutic deception; deception. Florida FLA. STAT. ch (2012) Applies to contact with current clients or former client when the professional relationship was terminated primarily for the purpose of engaging in sexual contact; higher level offense if therapeutic deception was used. Georgia GA. CODE ANN (c)(2) Applies to contact with current clients or when the treatment relationship is used to facilitate sexual contact. Idaho IDAHO CODE (a) (2012) Applies to contact with current clients. Iowa IOWA CODE Applies to contact with client or

5 former client up to one year after termination of professional services for the purpose of arousing or satisfying the sexual desires of the therapist or the client or former patient. Kansas KAN. STAT. ANN (2012) Therapeutic deception cases. Maine 17-A ME. STAT. ANN. 253(2)(1) Applies to contact between social worker and current client. Minnesota MINN. STAT. ANN (1)(h)-(j), (1)(h)-(j) Applies to contact with current clients; former clients who are emotionally dependent on the therapist; therapeutic deception. New Hampshire N.H. REV. STAT. ANN A:2(g) Applies to contact with current clients; former clients for one year after termination of services. New Mexico N.M. STAT. ANN (A)(5); (2012) Applies to current clients and former clients for one year after termination of services. New York NY CLS PENAL Current clients. North Dakota N.D. CENT. CODE Current clients. Ohio ORC Ann (10) Therapeutic deception. South Dakota S.D. CODIFIED LAW , Current client who is emotionally dependent on the psychotherapist. Texas TEX. PENAL CODE ANN (b)(9)(2012) Current client whose emotional dependency is exploited by the therapist. Utah UTAH CODE ANN Therapeutic deception. 406(12) Washington WASH. REV. CODE 9A (1)(d), 9A (l)(d) Current client who is unaware that the conduct is not for therapeutic purposes and acts occur during a purported treatment session, consultation, interview, or examination. Wisconsin WIS. STAT (2012) Current clients. References Ala. Code 13A Association of Social Work Boards. Social work statutes and regulations. Available at

6 Association of Social Work Boards (2012). ASWB model social work practice act. Available at Col. Rev. Stat (1)(r) (2012). 720 ILCS 5/ National Association of Social Workers (2008). NASW code of ethics. Washington, DC: Author. Available at Ohio Rev. Stat Ohio Admin. Code Available at cswmft.ohio.gov/pdfs/4757.pdf. The information contained in this website is provided as a service to members and the social work community for educational and information purposes only and does not constitute legal advice. We provide timely information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this website and its associated sites. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between NASW, LDF, or the author(s) and you. NASW members and online readers should not act based on the information provided in the LDF Web site. Laws and court interpretations change frequently. Legal advice must be tailored to the specific facts and circumstances of a particular case. Nothing reported herein should be used as a substitute for the advice of competent counsel.

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