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Sexual Abuse by Psychotherapists: The Call for a Uniform Criminal Statute

Published online by Cambridge University Press:  24 February 2021

Michael T. Borruso
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Abstract

Recent surveys show an alarming rate of sexual exploitation of patients by psychotherapists. As such conduct often falls outside the scope of rape, which allows a defense of consent, the psychotherapist is not prosecuted. Although all sexual contact between therapist and patient is prohibited by codes of professional ethics, the licensing boards that enforce these codes do not possess adequate power to deter this behavior. Further, professional review boards have absolutely no authority over unlicensed therapists who sexually abuse their patients. As a result, licensed therapists who have been censured in one state may practice as unlicensed therapists in another state and continue to sexually abuse patients.

The only effective deterrent would be a uniform statute, adopted in all states, criminalizing this specific abuse of the unique therapist-patient relationship. Such a statute should include unlicensed therapists as potential offenders and consent to sexual contact should not be a defense. The statute also should provide for enhanced efforts to inform and protect victims. This Note first examines six of the nine criminal statutes that currently exist in order to show the full range of provisions presently in force to deter this conduct. This Note then proposes model provisions for a uniform statute.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 17 , Issue 3 , 1991 , pp. 289 - 311
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1991

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Footnotes

*

Much of the text of this Note deals with the problem of male therapist/female patient sexual contact. This is not to say that sexual abuse of male patients or sexual abuse by female therapists is not also a problem. Rather, the majority of cases involve male therapist/female patient abuse. All pronouns which indicate one gender should be read to include the other gender as well.

Further, the terms “sexual abuse” and “sexual exploitation” are used interchangeably, and should be read to indicate any sexual contact unless otherwise indicated. Sexual contact includes all touching of body parts within the so-called “bikini rule” (including breasts, vagina, thighs, buttocks and penis).

References

1 Bass, Panel OK's Therapist Regulation, Boston Globe, Jan. 24, 1990, at 1, col. 3.

2 Brodsky, Sex Between Patient and Therapist: Psychology's Data and Response, in SEXUAL EXPLOITATION IN PROFESSIONAL RELATIONSHIPS 17-20 (G. Gabbard ed. 1989); Gartrell, Prevalence of Psychiatrist-Patient Sexual Contact, in SEXUAL EXPLOITATION IN PROFESSIONAL RELATIONSHIPS, supra, at 7; Goode, The Ultimate Betrayal: When Sex Enters the Equation, Psychotherapy is Over, U.S. NEWS AND WORLD REPORT, Mar. 12, 1990, at 64; Siegel, Laws That Help When Therapists Do Harm: Attorneys Are Discovering How to Fight for the Rights of Counseling-Abuse Victims, STUDENT LAW., Dec. 1988, at 33, 34; Simon, Sexual Misconduct of Therapists: A Cause for Civil and Criminal Action, TRIAL, May 1985, at 46, 46.

3 Simon, supra note 2, at 47.

4 Siegel, supra note 2, at 37.

5 At Issue With Jeanine Graf: Therapist: Who Sexually Abuse Their Patients (WFXT television broadcast, Sept. 18, 1989) (statement by Kevin Haul, New England Director, Citizens Commission on Human Rights).

6 California, Colorado, Florida, Maine, Michigan, Minnesota, New Hampshire, North Dakota and Wisconsin all have legislation proscribing, at least, sexual intercourse between licensed medical professionals and patients. Some proscribe any contact between a licensed or unlicensed therapist and a patient. Offenses range from misdemeanors to fourth degree felonies. See CAL. BUS. & PROF. CODE § 729 (West 1990); COLO. REV. STAT. § 18-3-405.5 (1990); FLA. STAT. ANN. § 491.0112 (West 1991); ME. REV. STAT. ANN. tit. 17-A, § 253 (1990); MICH. COMP. LAWS ANN. § 750.90 (West 1991); MINN. STAT. ANN. §§ 609.341, 609.44, 609.345 (West 1987 & Supp. 1991); N.H. REV. STAT. ANN. § 632A:2 (1986); N.D. CENT. CODE § 12.1- 20-06.1 (Michie Supp. 1989); Wis. STAT. ANN. §§ 893.585, 895.70, 940.22 (West 1990 & Supp. 1990).

7 MICH. COMP. LAWS ANN. § 750.90 (proscribes a person undertaking to medically treat a female patient from representing to her that sexual intercourse with any man would be beneficial to her health); N.H. REV. STAT. ANN. § 632A:2 (prohibits any person from sexually penetrating another person when engaging in medical treatment or examination of the patient “in a manner or for purposes which are not medically recognized as ethical or acceptable“).

8 CAL BUS. & PROF. CODE §§ 337, 728, 729, 800; WIS. STAT. ANN. §§ 893.585, 895.70, 940.22.

9 A proposed bill was filed in March, 1990. The bill purported to make sexual intercourse with patients a felony punishable by up to ten years in prison and to make indecent sexual contact a felony punishable by up to five years in prison. If passed, the statute would cover both licensed and unlicensed practitioners, and consent would not be a defense. Bass, supra note 1, at 9, col. 1.

The bill died in the legislature. Four new bills currently are pending in the Massachusetts legislature on this subject, one of which seeks to criminalize this behavior. As of June 13, 1991, the bill had received a favorable report from a special House investigatory committee. Telephone interviews with Fayre Stephenson, Aide to Massachusetts Representative Barbara Gardner (March 26, 1991; July 1, 1991).

10 Bass, supra note 1, at 9, col. 1-2.

11 For the purposes of this Note, the terms “therapist” and “psychotherapist” are used interchangeably, unless otherwise indicated.

12 The terms are discussed more fully within the criminal statutes themselves. See infra text accompanying notes 65-114.

13 Boucher, Perilous Healing, Boston Globe, May 28, 1989 (Magazine), at 39.

14 See id. at 37.

15 Id. at 33.

16 Id. at 36. Any estimate is impossible, though, because of the absence of any regulatory scheme or reporting statutes.

17 For a discussion of the propriety of this definition, see Attempts to Recognize, Define, and Address the Problem: Legal, Ethical, and Theoretical Conceptualizations, in K. POPE & J. BOUHOUTSOS, SEXUAL INTIMACY BETWEEN THERAPISTS AND PATIENTS 22-32 (1986). See generally Perr, Medicolegal Aspects of Professional Sexual Exploitation, in SEXUAL EXPLOITATION IN PROFESSIONAL RELATIONSHIPS, supra note 2, at 211-27.

18 Smith & Bisbing, Sexual Exploitation of Patients: The Civil, Criminal, and Professional Consequences, TRIAL, Dec. 1987, at 65, 65 (citing 12 S. FREUD, THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 97 (J. Strachey ed. & trans. 1955)).

19 Id. at 65 (citing 12 S. FREUD, THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD, supra note 18, at 160).

20 See id.

21 The author has coined the term “negligent sexual abuse” to refer to mismanagement of the transference-countertransference phenomenon.

22 Smith & Bisbing, supra note 18, at 65 (citing Bazar, Warning: Sex with Your Therapist May Be Dangerous to Your Health, AM. PSYCHOLOGY A. MONITOR, Oct. 1981, at 4).

23 Smith & Bisbing, supra note 18, at 65 and sources cited therein.

24 Id.

25 See supra text accompanying notes 1-2.

26 Boucher, supra note 13, at 37.

27 Id.

28 Id. at 36-37.

29 In examining licensing schemes, the author has focused only on those states which have criminal statutes.

30 WIS. STAT. ANN. § 455.04(1)(a) (West 1990).

31 Id. at § 455.04(1)(b).

32 Id. at § 455.04(1)(c). The board may require examinations to determine the equivalence of training and experience and may require examinations for individuals holding doctoral degrees in psychology from non-American universities. Id.

33 Id. at § 455.04(1)(d). This section states that the candidate shall “have had at least one year of appropriate experience in psychological work under conditions satisfactory to the examining board in addition to satisfying par. (c). However, the examining board may not adopt rules requiring an internship.“

34 Id. at §455.04(1)(e).

35 Id. at § 455.04(3). The standards of other examining boards must be deemed by the members of this board to be equivalent to the standards of this state and like reciprocity is extended to holders of licenses issued by this state. Id. S6W. at §455.02.

36 Id. at § 455.02(1)(a).

38 Id. at § 455.10. This section reads as follows:

Violation of s. 455.02(l)(a) enjoining an action brought by the attorney general on petition by the examining board. In any such proceeding, it shall not be necessary to show that any person is individually injured by the actions complained of If the respondent is found guilty of the violation, the court shall enjoin the respondent from further violations thereof until he or she has been duly licensed. The remedy given by this section is in addition to criminal prosecution under s. 455.11.

39 Id. at §455.11.

40 For a thorough and well-documented discussion of these consequences, see generally Pope, Consequences of Therapist-Patient Sexual Intimacy, in SEXUAL INTIMACY BETWEEN THERAPISTS AND PATIENTS, supra note 17, at 57-68.

41 WIS. STAT. ANN. § 455.08.

42 Id. Only licensed psychologists are covered by the statute; unlicensed “psychologists” are not mentioned.

43 WIS. STAT. ANN. § 455.09(1)(a), (h), (g). There are other grounds for denial, limitation, suspension, revocation and reprimand (for example, drug abuse), but of these is beyond the scope of this Note.

44 Id. at § 455.09(3). A revoked license, however, may not be renewed. Further, the examining board may accept or reject an application for reinstatement. Id.

45 CAL. BUS. & PROF. CODE §§ 726, 728, 2903, 2914, 2940, 2960, 2970 (West 1990 & Supp. 1990).

46 Id. at § 2914(a). For a discussion of denial of licensure, see infra text accompanying notes 56-64.

47 Id. at § 2914(b). “No educational institution shall be denied recognition as an accredited or approved acedemic institution solely because its program is not accredited by any professional organization of psychologists[.]” Id. Further, educational institutions are not required to register their departments of psychology or their doctoral programs in psychology with the board. Id.

48 Id. at § 2914(c). This section requires the applicant to acquire the experience in the United States under the supervision of a board approved psychologist.

49 Id. § 2914(d). The board, however, may exempt an applicant from taking and passing the examination. Id.

50 Id. at § 2914(e). This requirement applies only to applicants who have matriculated on or after September 1, 1985. Id.

51 Id. at § 2943.

52 Id. at §2903.

53 Id. This section reads as follows:

The practice of psychology is defined as rendering or offering to render for a fee to individuals, groups, organizations or the public any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior, such as the principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships; and the methods and procedures of interviewing, counseling, psychotherapy, behavior modification, and hypnosis; and of constructing, administering, and interpreting tests of mental abilities, aptitudes, interests, attitudes, personality, characteristics, emotions and motivations.

The application of such principles and methods includes, but is not restricted to: diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders of individuals and groups. § 2908 provides further that:

Nothing in this chapter shall be construed to prevent qualified members of other recognized professional groups licensed to practice in the state of California, such as, but not limited to, physicians, clinical social workers, educational psychologists, marriage, family and child counselors, optometrists, psychiatric technicians, or registered nurses, or attorneys admitted to the California State Bar or persons utilizing hypnotic techniques which offer avocational or vocational self-improvement and do not offer therapy for emotional or mental disorders, or duly ordained members of the recognized clergy, or duly ordained religious practitioners from doing work of a psychological nature consistent with the laws governing their respective professions, provided they do not hold themselves out to the public by any title or description of services incorporating the words “psychological,” “psychologist,” “psychometrics,” or “psychometry,” or that they do not state or imply that they are licensed to practice psychology; except that persons licensed under Article 5 (commencing with Section 4986) of Chapter 13 of Division 2 may hold themselves out to the public as licensed educational psychologists.

The reader should take notice that these excepted groups are subjected to laws and ethical obligations pertaining to their own professions.

54 Id. at § 2903.

55 Peer v. Municipal Court, 180 Cal. Rptr. 137, 128 Cal. App. 3d 733 (1982).

56 CAL. BUS. & PROF. CODE § 2960(a).

57 Id. at § 2960(i).

58 Id. at §2960(j).

59 Id. at § 2960(m).

60 Id. at §2960(n).

61 Id.

62 Id. at § 2960(o). There are other grounds for denial, suspension and revocation, but they are not relevant to the issues in this Note.

63 Id. at § 2960(m).

64 Id.

65 The statutes discussed below were chosen in order to display the full range of provisions currently in force. The Florida, Maine and North Dakota statutes are not discussed because the sum total of their provisions are substantially similar to those of Minnesota and Wisconsin. As such, examination of these statutes would add little to the analysis.

66 MICH. COMP. LAWS ANN. § 750.90 (West 1991). This section reads as follows:

Any person who shall undertake to medically treat any female person, and while so treating her, shall represent to such female that it is, or will be necessary or beneficial to her health that she have sexual intercourse with a man, and shall thereby induce her to have carnal sexual intercourse with any man, and any man, not being the husband of such female, who shall have sexual intercourse with her by reason of such representation, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.

67 Id.

68 Id.

69 No case law exists under this statute involving prosecution of psychotherapists.

70 One could, however, argue that some forms of psychotherapy do not constitute medical treatment, thus excluding from the statute altogether psychotherapists who practice such forms of psychotherapy.

71 N.H. REV. STAT. ANN. § 632A:2 (West 1990).

72 State v. Smith, 127 N.H. 433, 437, 503 A.2d 774, 777.

73 N.H. REV. STAT. ANN. § 632A:2.

74 Id.

75 There are no cases under either the Michigan statute or the New Hampshire statute involving psychotherapists.

76 COLO. REV. STAT. § 18-3-405.5 (1990).

77 Id. at § 18-3-405.5(1)(b), (2)(b).

78 Id. at § 18-3-405.5(1)(a)(II), (2)(a)(II).

79 Id. at § 18-3-405.5(4)(d).

80 Intimate therapy was a therapeutic trend in which practitioners would recommend sexual contact between therapist and patient as part of the patient's treatment. Lange, & Hirsh, , Legal Problems of Intimate Therapy, 28 MED. TRIAL TECH. Q, 201, 201 (1982)Google Scholar.

81 COLO. REV. STAT. § 18-3-405.5(1)(a)(I), (2)(a)(I), (3).

82 Id. at § 18-3-405.5(4)(a).

83 Id. at § 18-3-405.5(4)(b).

84 Id. at § 18-3-405.5(4)(c).

85 The legislation became effective July 1, 1988, and only applied to acts committed on or after that date. No case law is yet available under the statute.

86 MINN. STAT. ANN. § 609.345 (1990).

87 Id. at § 609.345(b).

88 Id. at § 609.345(i).

89 Id. at §609.345(j).

90 Id. at §609.345(k).

91 Id. at § 609.345(b), (i), (j), (k).

92 Id. at § 609.341(17) (West 1987).

93 Id. at §609.341(19).

94 The sections related to psychotherapists were added to the criminal statute in 1985. No case law exists regarding these provisions.

95 WIS. STAT. ANN. § 940.22(2) (West Supp. 1990).

96 Id. at § 940.22(l)(i). “'Therapist’ means a physician, psychologist, social worker, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy.” Id.

97 Id. at §940.22(2).

98 Id. at § 940.225(5)(b). However, the intentional touching must be either for the purpose of sexually degrading or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant, or the touching must contain the elements of actual or attempted battery. Id.

99 Id. at § 895.70(2). A current or former client who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with that client's therapist has a cause of action.

100 Id. at § 940.22(3). This section reads as follows:

Reports of sexual contact. (a) If a therapist has reasonable cause to suspect that a patient or client he or she has seen in the course of professional duties is a victim of sexual contact by another therapist or a person who holds himself or herself out to be a therapist in violation of sub. (2), as soon thereafter as practicable the therapist shall ask the patient or client if he or she wants the therapist to make a report under this subsection. The therapist shall explain that the report need not identify the patient or client as the victim. If the patient or client wants the therapist to make the report, the patient or client shall provide the therapist with a written consent to the report and shall specify whether the patient's or client's identity will be included in the report.

(b) Within 30 days after a patient or client consents under par. (a) to a report, the therapist shall report the suspicion to:

  1. 1.

    1. The department, if the reporter believes the subject of the report is licensed by the state. The department shall promptly communicate the information to the appropriate examining board.

  2. 2.

    2. The district attorney for the county in which the sexual contact is likely, in the opinion of the reporter, to have occurred, if subd. 1 is not applicable.

    • (c) A report under this subsection shall contain only information that is necessary to identify the reporter and subject and to express the suspicion that sexual contact has occurred in violation of subd. (2). The report shall not contain information as to the identity of the alleged victim of sexual contact unless the patient or client requests under par. (a) that this information be included.

    • (d) Whoever intentionally violates this subsection by failing to report as required under pars, (a) to (c) is guilty of a Class A misdemeanor,

101 Id.

102 Id. at §940.22(4). “Whoever intentionally violates [the confidentiality requirements] or permits or encourages the unauthorized dissemination or use of information contained in reports and records made under [the requirements], is guilty of a Class A misdemeanor.” Id. at § 940.22(4)(d).

103 Id. at § 940.22(5).

104 Id. at § 940.22(3)(d).

105 CAL. BUS. & PROF. CODE § 729(b)(1) (West 1990).

106 Id. at § 729(a).

107 Id. at § 729(b)(2).

108 Id. at §729(a).

109 Id.

110 1989 Cal. Adv. Legis. Serv. 795 (Deering).

111 CAL BUS. & PROF. CODE § 337. However, “[t]he brochure is available only to individuals who contact the Medical Board of California and their allied health boards or the Board of Behavioral Science Examiners regarding a complaint involving psychotherapist-patient sexual relations.” Id. at § 337(c).

112 Id. at §800.

113 Id. at § 728(a) (requirement extends to the employer of the psychotherapist if the employer becomes aware of the allegations).

114 Id. at § 728(b).

115 Boucher, supra note 13, at 33.

116 Id.

117 Id.

118 Problems do exist with this arrangement. This Note deals with these problems in the discussion of the California criminal statute. See supra text accompanying notes 105-114.

119 The problems of civil litigation and effects on malpractice insurance are many and each could constitute a Note in itself. For the differing precedents that are currently in force and the expansion of liability, see Rowe v. Bennett, 514 A.2d 802 (Me. 1986) (woman could recover damages when her therapist began having an affair with her lover, who was also under that therapist's care); Richard H. v. Larry D., 198 Cal. App. 3d 591 (1988) (patient could recover damages from the physician (and the hospital which employed the physician) who had surreptitious sexual relations with the patient's wife while the physician was employed for the purpose of giving marital counseling to the patient and his wife); Horak v. Bins, 130 111. App. 3d 140, 474 N.E.2d 13 (1985) (sexual relations with a client during the course of marital counseling constitutes a cause of action for malpractice against a licensed social worker); Security Ins. Group v. Wilkinson, 297 So. 2d 113 (Fla. Dist. Ct. App. 1974) (hospital denied insurance coverage because action brought in contract and not malpractice).

120 Anclote Manor Found, v. Wilkinson, 263 So. 2d 256 (Fla. Dist. Ct. App. 1972) (allowing claim of husband against hospital when therapist had sex with his wife); Carrizosa, Mother May Sue Therapist Who Molested Child: Emotional Distress Upheld, L.A. Daily J., Apr. 11, 1989, at 1, col. 2 (discussing Marlene F. v. Affiliated Psychiatric Medical Clinic, 48 Cal. 3d 583, 770 P.2d 278, 257 Cal. Rptr. 98 (1989)).

121 MODEL PENAL CODE § 213.1 (1985).

122 Id. at §213.2.

123 Id. at §213.4.

124 Id. at §§ 213.1(2)(b), 213.2(2)(b), 213.4(2).

125 Id. at §§213.1(2), 213.2(2).

126 Id. at §213.4.

127 See supra text accompanying notes 65-75.

128 See supra text accompanying notes 86-114.