Counselor Sexual Abuse

Criminalization of Psychotherapist Sexual Misconduct

By Sherri Morgan, Associate Counsel, LDF and Office of Ethics & Professional Review © May 2013. 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 one- year 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 (2013)).

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.

Rev. Stat. §§ 18-3-405.5(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. 12-43-222(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 (2013)). 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” (2013). 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

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 http://www.socialworkers.org/nasw/join/MKT-APP- 24712.Application.pdf; http://www.socialworkers.org/nasw/ethics/professional%20review%20process%20revision%20and%20chapter%20notificati
on%2012082009.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
Alaska

Arizona

California

ALASKA STAT. §§ 11.41.410(a)(4)(A)-(B), 11.41.420(a)(4)(A)-(B), 11.41.470(1) (2013)

ARIZ. REV. STAT. § 13-1418 (2013)

CAL BUS. & PROF. CODE § 729 (2013)

COLO. REV. STAT. §§ 18-3- 405.5(1),(2) (2012)

CONN. GEN. STAT. §§ 53a- 71(a)(6), 53a-73a(a)(4), 53a-65(9)- (12) (2013)

DEL CODE ANN. tit. 11,§ 761

D.C. CODE ANN. §§ 22-3015, 22- 3016 (2012)

FLA. STAT. ch. 491.0112 (2012)

GA. CODE ANN. § 16-6-5.1(c)(2) (2013)

IDAHO CODE § 18-919(a) (2012)

IOWA CODE § 709.15 (2013)

Applies to conduct that occurs during the course of treatment and when the victim is unaware that sexual activity is occurring.

“[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.”

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.

Applies to clients who seek or receive psychotherapy; also, “therapeutic deception.”

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.

Therapeutic deception.

Applies to current clients; impaired clients; therapeutic deception; deception.

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.

Applies to contact with current clients or when the treatment relationship is used to facilitate sexual contact.

Applies to contact with current clients.
Applies to contact with client or

Colorado

Connecticut

Delaware

District of Columbia

Florida

Georgia

Idaho

Iowa

Kansas

Maine

Minnesota

New Hampshire

New Mexico

New York

North Dakota

Ohio

South Dakota

Texas

Utah

Washington

Wisconsin

KAN. STAT. ANN. § 21-5503 (2012)

17-A ME. STAT. ANN. § 253(2)(1) (2013)

MINN. STAT. ANN. §§ 609.344(1)(h)-(j), 609.345(1)(h)-(j) (2013)

N.H. REV. STAT. ANN. § 632- A:2(g)(2013)

N.M. STAT. ANN. § 30-9-10(A)(5); 30-9-11 (2012)

NY CLS PENAL § 130.05 (2013)

N.D. CENT. CODE §§ 2.1-20-06.1 (2013)

ORC Ann. 2907.03 (10) (2013)

S.D. CODIFIED LAW §§ 22-22-28, 22-22-29 (2013)

TEX. PENAL CODE ANN. § 22.011(b)(9)(2012)

UTAH CODE ANN. § 76-5- 406(12)(2013)

WASH. REV. CODE §§ 9A.44.050(1)(d), 9A.44.100(l)(d)(2013)

WIS. STAT. § 940.22 (2012)

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.

Therapeutic deception cases.

Applies to contact between social worker and current client.

Applies to contact with current clients; former clients who are emotionally dependent on the therapist; therapeutic deception.

Applies to contact with current clients; former clients for one year after termination of services.

Applies to current clients and former clients for one year after termination of services.

Current clients.

Current clients.

Therapeutic deception.

Current client who is emotionally dependent on the psychotherapist.

Current client whose emotional dependency is exploited by the therapist.

Therapeutic deception.

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.

Current clients.

References

Ala. Code § 13A-6-65 (2013).

Association of Social Work Boards (2013). Social work statutes and regulations. Available at http://www.aswb.org/SWL/statutesregulations.asp.

Association of Social Work Boards (2012). ASWB model social work practice act. Available at http://www.aswb.org/pdfs/Model_law.pdf.

Col. Rev. Stat. 12-43-222(1)(r) (2012). 720 ILCS 5/11-1.50 (2013).

National Association of Social Workers (2008). NASW code of ethics. Washington, DC: Author. Available at https://www.socialworkers.org/pubs/code/default.asp.

Ohio Rev. Stat. § 2907.03 (2013).
Ohio Admin. Code 4757-5-10 (2013). Available at cswmft.ohio.gov/pdfs/4757.pdf.

Link between 27 States Criminalizing Sexual Exploitation of Therapist/Client

And Clergy Sexual Abuse

Because Clergy Sexual Abuse usually occurs with a “counseling relationship”, it is very important to look at State Laws criminalizing sexual relations between therapist and client.  Most all the 13 States that have made Clergy Sexual Misconduct a Crime determined that the congregant was vulnerable and unable to give consent much like a client is with a therapist.  The clergy and therapist are in positions of trust and authority over the victims – making sexual contact not only abusive but a crime!

Sherri Morgan in, “ Criminalization of Psychotherapist Sexual Misconduct” says:

“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.”

27 States and D.C. Criminalize Therapist/Client Sexual Relations

Two States have Pending Bills

Four Most Recent State Laws Listed Below

Followed by 23 States and D.C.  Laws in Chart

Ending with Two States Pending Bills

(1)  Ark.Code Ann. 5-14-126. Sexual assault in the third degree

(2)  Ill COMP STAT § 1 : Illinois Statute – Section 1

740 ILCS 140/1) (from Ch. 70, par. 801)

(3) 2010 Mississippi Code
43-47-18 – Sexual battery of vulnerable adult by health care employees  or persons in position of trust or authority

(4) Tennessee Code 29-26-202.

Bill pending in Louisiana legislature would make psychotherapist sex with patients a crime

BATON ROUGE — A Lafourche Parish lawmaker has introduced legislation that he said would better define the sexual boundaries that should be applied to psychotherapists and their patients.

Rep. Dee Richard, no party affiliation, Thibodaux, said he attempted to take the issue in from several different angles when drafting House Bill 226.

The legislation is expected to be debated during the regular session that convenes Monday.

“When you are under a psychotherapist’s care, you are very vulnerable,” Richard said. “There are a lot of cases out there where sexual contact occurred and it did not end well. This is something we should do a better job of avoiding.”

Richard’s bill would create a new crime that prohibits “sexual contact by a psychotherapist.”

It would not only target psychotherapists but also any person who “fraudulently represents himself as or purports to be a psychotherapist.”

The proposed law would apply more specifically to psychiatrists, psychologists, licensed clinical social workers, mental health counselors and “any other person who provides or purports to provide treatment, diagnosis, assessment, evaluation, or counseling of any mental, emotional, behavioral, or addictive illnesses, disorders, symptoms, or conditions.”

Bill pending in Maryland

MARYLAND LYNETTE’S LAW

HOUSE BILL 908

Criminal Law –Professional Counselors and Therapists –Misconduct

(Lynette’s Law)

FOR the purpose of prohibiting a certain professional counselor or therapist from engaging in a sexual act, sexual contact, or vaginal intercourse with a person who is receiving counseling from the professional counselor or therapist or who has received counseling from the professional counselor or therapist within a certain period of time; prohibiting a certain professional counselor or therapist from knowingly, and with intent to deceive, making a false statement concerning the person’s criminal record on an employment application; defining certain terms; and generally relating to the conduct of professional counselors and therapists.

Please Protect Alabama citizens from Sexual Exploitation

By Professionals such as counselors, therapists, psychologists,

And members of clergy!

Please join the 27 States and District of Columbia

Criminalizing Sexual Exploitation

Between Therapist and Client

And

The 13 States and District of Columbia

Criminalizing Clergy Sexual Misconduct

Where “therapeutic deception” or Fraud is

Used in Counseling

Please sponsor a Bill with addition (*) under any Fraud or artifice

ALA CODE § 13A-6-65: Alabama Code – Section 13A-6-65:          SEXUAL MISCONDUCT
(a) A person commits the crime of sexual misconduct if:

(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by Sections 13A-6-61 and 13A-6-62; or

with her consent where consent was obtained by the use of any fraud or artifice;

* Fraud to include: Sexual exploitation by a counselor, therapist, or school employee.

1. As used in this section:

a. Counselor or therapist means a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services.

b. Emotionally dependent means that the nature of the patients or client s or former patient s or client s emotional condition or the nature of the treatment provided by the counselor or therapist is such that the counselor or therapist knows or has reason to know that the patient or client or former patient or client is significantly impaired in the ability to withhold consent to sexual conduct, as described in subsection 2, by the counselor or therapist.

2. Sexual exploitation by a counselor or therapist occurs when any of the following are found:

a. A pattern or practice or scheme of conduct to engage in any of the conduct described in paragraph b or c .

b. Any sexual conduct, with an emotionally dependent patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the emotionally dependent patient or client or emotionally dependent former patient or client, which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.1 (Iowa Code)

Please Protect Alabama citizens from Sexual Exploitation

By Professionals such as counselors, therapists, psychologists,

And members of clergy!

Please join the 27 States and District of Columbia

Criminalizing Sexual Exploitation

Between Therapist and Client

And

The 13 States and District of Columbia

Criminalizing Clergy Sexual Misconduct

Where “therapeutic deception” or Fraud is

Used in Counseling

Please sponsor a Bill with addition (*) under any Fraud or artifice

ALA CODE § 13A-6-65: Alabama Code – Section 13A-6-65:          SEXUAL MISCONDUCT

(a) A person commits the crime of sexual misconduct if:

(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by Sections 13A-6-61 and 13A-6-62; or

with her consent where consent was obtained by the use of any fraud or artifice

*Fraud to include Sexual Exploitation by therapists. “Therapist” means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

Sexual contact prohibited. Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection.