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LAW AND ETHICS FOR CALIFORNIA MARRIAGE AND FAMILY THERAPISTS (MFTs): SEXUAL MISCONDUCT

The California Board Of Behavioral Sciences Laws and Regulations Relating To the Practice of Marriage And Family Therapy states the following as a violation:

“Engaging in sexual relations with a client, or a former client within two years following termination of therapy, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.”

The California Association of Marriage and Family Therapists (CAMFT) states in its ethical standards:

Sexual intercourse, sexual contact or sexual intimacy with a patient, or a patient's spouse or partner, during the therapeutic relationship, or during the two years following the termination of the therapeutic relationship, is unethical.

According to California laws:

Any act of sexual contact, sexual abuse, sexual exploitation, sexual misconduct or sexual relations by a therapist with a patient is unprofessional, illegal, as well as unethical as set forth in Business and Professions Code sections 726, 729, 2960(o), 4982 (k) and 4992.3(k)

Sexual contact means the touching of an intimate part of another person, including sexual intercourse.

“Touching” means physical contact with another person either through the person’s clothes or directly with the person’s skin.

“Intimate part” means the sexual organ, anus, groin, or buttocks of any person and the breast of a female.

Sexual exploitation can include sexual intercourse, sodomy, oral copulation, or any other sexual contact between a therapist and a patient or a former patient under certain circumstances.

Sexual misconduct includes a much broader range of activity, which may include fondling, kissing, spanking, nudity, verbal suggestions, innuendos or advances. This kind of sexual behavior by a therapist with a patient is unethical, unprofessional and illegal.

The purpose of these rules and laws is to ensure that clients have high quality and safe care from counseling professionals.

Numerous national surveys prior to 1990 indicate that the number of members of major health professions who report having engaged in sexual contact with their clients is significant-as high as 17% in one survey, and as low as 1%. Although the actual number of sexual misconduct cases is not known, some researchers believe that the actual incidence may be higher than the surveys indicate.

It is very difficult to determine an accurate rate of occurrences of sex between therapists and clients. The earliest studies yielded numbers around 10% of psychiatrists and psychologists. Later studies indicated that the numbers were dramatically declining. It is most likely that increased stigma, training, attention to the issue, and sweeping cultural changes, particularly feminism, have resulted in the declining statistics. However, there is the possibility that stigma has led to less honesty among those surveyed. Sexual misconduct has resulted in a high percentage of malpractice suits against psychotherapists. There have been a large number of successful criminal prosecutions and civil suites, beginning with the 1968 case of Zipkin v. Freeman. The legal bases for civic suits include negligence, malpractice and breach of fiduciary duty. Legislation was formulated beginning in 1983 that now includes criminal and civil statutes.

In California, the number of Marriage and Family Therapists who are disciplined for sexual misconduct each year is relatively small. However, violations related to sexual misconduct represented one of most frequent reasons for ethics violations in each of the last five years. The fact that sexual misconduct is one of the most common reasons for disciplinary actions and law-suits against therapists demands an effort for on-going self-awareness and sensitivity regarding the issue.

It took a long time for the scope and even the reality of the problem to be acknowledged. In the late 1960’s, when the first research into the subject was undertaken, the resulting report was suppressed by the Los Angeles APA, despite its own ethical prohibition against suppressing research findings.

The earliest research into rates of sexualized contact with health care providers came from a survey of psychiatrists, obstetrician/ gynecologists, surgeons, internists and general practitioners, and reported that as many as thirteen percent indicated that they had engaged in erotic behavior with patients, with 7.2% acknowledging sex. Of the providers surveyed, psychiatrists and surgeons reported the lowest rate of erotic contact, at 5%.

In the early 1970’s, data from malpractice carriers and a poll of psychiatrists revealed that the problem was far more common than believed. In 1971, 11% of male psychiatrists admitted to having sex with at least one patient. 80% of those psychiatrists had sex with multiple patients.

The change in perception that began in the 1970’s resulted in claims of sexual abuse by therapists and physicians to begin to be taken seriously. In the decades preceding this change, it was believed that such abuse was rare, that allegations were fantasies, and that allegations of incest were invalid for the same reasons. More time passed before there were laws and ethical codes addressing the problem. It was not until 1991 that the American Medical Associations Council on Ethics and Judicial Affairs codified the injunction against sex between physicians and their patients. Rules comparable to the AMA’s were later adopted by the American College of Obstetricians and Gynecologists (1997) and the American Academy of Pediatrics (1999).

Concerns about sexual misconduct by health professionals are hardly new: According to Schoener, the earliest published text to address the issue is the Corpus Hippocratum, "a body of about 70 medical texts compiled by the Library of Alexandria during the 4th and 5th centuries B.C." that includes the "Hippocratic Oath." Schoener cites the oath's "original Greek version," which provides: "I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free." Citing Brodsky, Pope dates the first such code to the even earlier "code of the Nigerian healing arts."

Traces the issue through subsequent centuries, Schoener notes earlier writers' tendency to blame professional sexual misconduct on seductive female patients and parishioners. By the 1880s, he concludes sardonically, "[W]e know what the problem is . . . it is women." Schoener's "Overview" makes clear that this tendency informed the approaches and actions of the founders of the modern mental health fields: Freud, Jung, Breuer, Ferenczi, and countless others either engaged in or sanctioned what today would clearly be regarded as sexual misconduct.

Citing Ernest Jones's biography of Freud, Schoener notes that Freud used as a treatment model the 1880 case of "Anna O.," one of Joseph Breuer's hypnosis patients. In treating Anna O., Breuer reportedly did not handle effectively what today would be called the countertransference process. Breuer's wife reacted badly to her husband's infatuation with his patient, and Breuer, in turn, did not cope well with his wife's response: He terminated Anna O.'s treatment, only to rush to her bedside during a "hysterical childbirth." Jones reports that Breuer "fled [Anna O.'s] house in a cold sweat" and the next morning decamped with his wife for a second honeymoon in Venice.

Although Schoener insists that Breuer's relationship with Anna O. "did not involve sexual activity," the record seems less clear. And Schoener offers a troubling coda of his own to Anna O.'s case, asking, "And what happened to Anna O., that troubled young woman? She grew up to be Bertha Pappenheim, a leading feminist, social reformer, and a pioneer in the field of social work in Germany." His conclusion appears to imply that, since Pappenheim became such a productive member of society, Breuer's conduct not only did not harm her but may even have helped her – a conclusion that seems unsupported, at best.

Freud reportedly drew on Breuer's hypnosis practice, including his treatment of Anna O., in developing his psychoanalytic approach. Freud coined the term "transference" to describe the displaced feelings (including romantic and sexual feelings) that his patients developed for him during the analytical process. However, while he asserted that analysts should not become romantically or sexually involved with their patients, he excused such conduct by his male colleagues.

In the most glaring example, Freud inserted himself into a romantic relationship between one of his former students, Horace Frink, and one of Frink's patients. Freud not only urged Frink to leave his wife and marry the patient, but he evidently did so in the service of his own financial interests. The patient's family was wealthy, and Freud apparently believed that if Frink married the patient, her family would make a significant financial contribution to Freud's own work.

Another incident involved Freud's former student, Ferenczi. One of Freud's former patients, Elma Pálos, later commenced therapy with Ferenczi; at the same time, her mother, Gisella Pálos, was romantically involved with Ferenczi and eventually would become his wife. However, while treating Elma, Ferenczi became sexually involved with her as well as with her mother. While Freud had warned Ferenczi that he should avoid sexual activity with patients, with regard to his involvement with Elma and Giselle Pálos, he also reportedly tried "to influence [Ferenczi's] choice of a mate."

Even in his criticisms of Ferenczi's sexual entanglements with patients, Freud appears to have dismissed such sexual contact as "old misdemeanors." For his part, Ferenczi contended that those "old misdemeanors," which he characterized as "[t]he sins of youth," "can make a man wiser . . . . Now, I believe, I am capable of creating a mild, passion-free atmosphere, suitable for bringing forth even that which had been previously hidden."

Several years earlier, Carl Jung had likewise become sexually involved with a patient. Sabina Spielrein, a 19-year-old medical student in "desperate mental distress," first came to Jung for analysis and therapy in 1905. Jung treated her over the next four years – and according to Gay, "[took] advantage of her dependency [and] made her his mistress." At one point, Jung wrote to Freud that "the situation had become so tense that the continued preservation of the relationship could be rounded out only by sexual acts." In other correspondence, he justified this sexual relationship by alleging that Spielrein was "systematically planning [his] seduction." Freud responded in kind: Writing of "[t]he way these women manage to charm us with every conceivable psychic perfection until they have attained their purpose," he excused Jung's conduct by faulting Spielrein.

However, Jung's exploitation of his young patient did not stop with the affair: Rumors of the affair began to circulate, and Jung assumed that Spielrein was responsible. He later admitted: "Caught in my delusion that I was the victim of the sexual wiles of my patient, I wrote to her mother that I was not the gratifier of her daughter's sexual desires but merely her doctor, and that she should free me from her." In that same letter, he justified shifting from a doctor/patient to a social relationship "the more easily" because he had not been charging Spielrein professional fees. He then suggested that if his patient wanted him "to adhere to strictly to [his] role as doctor," he was entitled to receive "a fee as suitable recompense for [his] trouble." As the situation worsened, Jung even asked Freud to intervene by writing to Spielrein's mother. Freud did so, and subsequently advised Jung not to blame himself for the mess, asserting, "[I]t was not your doing but hers."

In discussing Jung's affair, Bettelheim later argued that, regardless of whether Jung behaved badly toward Spielrein, the "most important consequence" of Jung's relationship with her was that "he cured her." Bettelheim wrote: "True, Spielrein paid a very high price in unhappiness, confusion, and disillusion for the particular way in which she got cured, but then this often true for mental patients who are as sick as she was." However, after Bettelheim's death, his former patients and staff went public with accounts of "emotional and psychological abuse" at his hands.

Freud biographer Ernest Jones also allegedly became sexually involved with a patient while on the faculty at the University of Toronto. Jones denied the allegations and went on the offensive, accusing the former patient and her medical doctor, also a woman, of engaging in a lesbian relationship themselves. "However, his defense was seriously undermined by revelations that he had attempted to pay money to the former patient to stay quiet about the matter."

Psycholanalyst J.L. McCartney also apparently acknowledged engaging in sexual activity with female patients, although he used the deceptively benign term "overt transference" to describe his conduct. According to Schoener, McCartney admitted to such activity with "30% of his female patients, including undressing, genital touch, or sexual intercourse with 10%." Despite the fact that none of his patients filed a formal complaint, his tactics led the American Psychiatric Association to expel him.

Analyst Margaret Mahler wrote of her own experience in training with Aichhorn, which she described as "far from 'classical.'" Mahler seemed to recognize that the fact she and Aichhorn were "very much in love with one another" was not particularly healthy:

In taking me under his wing and vowing to see me restored to the good graces of the Viennese psycholanalytic establishment, Aichhorn only buttressed my self-image as an "exception" . . . . Under Aichhorn's analytic care, I became a sort of Cinderella, the love object of a beautiful Prince (Aichhorn) who would win me the favor of a beautiful stepmother (Mrs. Deutsch). At the same time, my analytic treatment with him simply recapitulated my [O]edipal situation all over again…

Women were not exclusively victims, however: Some of the early female professionals in the mental health field likewise engaged in sexual activity with patients. Karen Horney reportedly was involved in what she characterized as "restricted relationship[s]" with patients. Her biographer, Susan Quinn, describes a "romantic relationship" between Horney and a young male patient, which Quinn appears to rationalize as an example of "old impulsive ways [that] survived into middle age." Horney allegedly became sexually involved with patients and students with some regularity; Paris reports that one patient, Leon Saul, "was traumatized by the experience." Schoener describes Horney as having regularly "played favorites" with her lovers, temporarily elevating one to favored status, then suddenly replacing him with another. Melanie Klein engaged in a variety of boundary violations: She invited patients to go "on holiday" with her; she would then conduct "therapy sessions" in her hotel room, with the patient lying on Klein's own bed. Klein is also known for having "psychoanalyzed her own children." Freida Fromm-Reichmann acknowledged engaging in a romantic relationship with a patient: her future husband, Erich Fromm. According to Schoener, Fromm-Reichmann congratulated herself for having the "common sense" to end the therapist/patient relationship before they married.

Despite (or perhaps because of) these transgressions by the pioneers of psychotherapy, no serious, systematic study of therapist sexual misconduct was undertaken until the 1970s. Indeed, the profession's attitude was one of such carefully cultivated avoidance that, as Pope notes, it was possible as recently as 1977 to describe therapist sexual misconduct as "the problem with no name." Pope also reports that a number of attempts in the 1960s to study the problem went nowhere. For example, after suggesting such a study, Greenwald reported: "I just raised the questions . . . intending, as a clinical psychologist, that it be studied like any other phenomenon. And just for raising the question, some members circulated a petition that I should be expelled from the Psychological Association."

According to Pope, Forer "undertook the first systematic study of the phenomenon in the United States" in the late 1960s: He surveyed the members of the Los Angeles County Psychological Association and the Los Angeles Society of Clinical Psychiatrists, with both groups' approval. However, the survey results showed a "relatively high rate" of therapist/patient sexual contact, and the organizations suppressed the findings. In 1968, after reviewing the results, the groups' leadership "prohibit[ed] disclosing the findings either at professional conventions or through journal publication . . ., maintaining that it was 'not in the best interests of psychology to present it publicly.'"

Pope also cites Dahlberg's "Sexual Contact Between Patient and Therapist," noting that the psychiatrist encountered difficulty in getting it published. In the article's introduction, Dahlberg wrote: I have had trouble getting this paper accepted by larger organizations where I had less, but still not inconsiderable, influence. I was told that it was too controversial."

However, Pope's description of other early "research" into therapist sexual misconduct is troubling for other reasons. He cites as an article appearing in a 1971 issue of American Psychologist as the first to attempt to draw conclusions from "systematically collected data regarding the phenomenon." The article, by Brownfain, drew on insurance data from a decade of malpractice cases. Brownfain, like his predecessors, blamed female patients:

[T]he greatest number of all malpractice actions are brought by women who lead lives of very quiet desperation, who form close attachments to their therapists, who feel rejected or spurned when they discover that relations are maintained on a formal and professional level, and who then react with allegations of sexual improprieties.

Pope adds that Brownfain "mentioned no case during this 10-year period in which a patient's claims of sexual intimacies with her therapist were considered to be truthful."

A 1973 study of male members of the Los Angeles County Medical Society found that some 10% of the psychiatrists surveyed had engaged in sexual activity with at least one patient. Four years later, Holroyd and Brodsky published in American Journal of Psychiatry the results of what Pope calls "the first national incidence study of therapist-patient sex." With a return rate of 70%, the results of their research showed that "11% of the male therapists and 2% of the female therapists reported engaging in erotic contact with at least one patient and that 80% of those therapists did so with more than one patient." Pope has labeled the Holroyd/Brodsky study "a landmark in the profession's acknowledgment that a number of therapists were actually engaging in sexual intimacies with their patients."

[s]exually abusive psychotherapists cannot be dismissed as the most marginal members of the profession. They are well represented among the most prominent and respected mental health professionals. Cases involving therapists publicly reported to have engaged in sexual behaviors with their patients have included those who have served as faculty at the most prestigious universities (including those with APA-approved training programs), psychology licensing board chair, state psychological association ethics committee chair, psychoanalytic training institute director, state psychiatric association president, state association of marriage and family therapists president, prominent media psychologist, chief psychiatrist at a prominent psychiatric hospital, and chief psychiatrist at a state correctional facility (citations omitted).

IV. HOW THERAPIST SEXUAL MISCONDUCT CASES ARISE: OFFENDER TYPES AND THERAPEUTIC CIRCUMSTANCES

Assalian and Ravart agree with other experts that "[t]here is nothing new about sexual contact between health and mental health professionals and their patients." They cite the estimate of Abel, et al., that "half of all psychiatrists will evaluate and/or treat at least one person who was sexually exploited by a previous therapist or other health or helping professional." Assalian and Ravart's work describes three categories of professionals who commit sexual misconduct: the "denier," the "rationalizer," and the "repentant." Such professionals' susceptibility to treatment, they argue, varies by category: They suggest use of instruments such as the Minnesota Multiphasic Personality Inventory (MMPI) to diagnose "deniers" and prevent them from "gaming the system," in effect. While they contend that "rationalizers strongly tend to minimize their actions and avoid full responsibility for their behaviour," they may also "show remorse and victim empathy," and "are treatable." However, theyfind that those in "the repentant group are the best treatment candidates. They take full responsibility for their behaviour and present themselves as sincerely regretful and remorseful, and are willing to involve themselves in therapy to understand their behaviour and change."

Assalian and Ravart further classify offending professionals into "'affective' and 'predatory' types." The conduct of "affective" types, they argue, tends to stem from "unresolved emotional problems," such as mishandling of countertransference, depression, substance abuse, and feelings like resentment or abandonment. "Predatory" types, on the other hand, tend to present with "major personality disorder[s]" that may include psychopathic, narcissistic, or borderline features, among others. They contend that sexual misconduct by predatory offenders "is part of a lifestyle of using and exploiting others to meet one's needs," making them "more dangerous and at risk for reoffending."

Within the affective and predatory categories, Assalian and Ravart have identified seven subtypes: incidental, interpersonal, narcissistic, compensatory, exploitive, angry, and sadistic. They characterize each as follows:

Incidental offenders "have impulsively behaved in a sexually inappropriate manner and their [sic] is only one known occurrence of the behaviour."
Interpersonal offenders "are motivated to establish a close, intimate and long-lasting relationship. The investment in the relationship seems genuine, without clear signs of exploitation or abuse."
Narcissistic offenders "may or may not be seeking a close, emotional relationship," but "their behaviour more strongly suggests strong needs for attachment, admiration, approval, validation, love and attention."
Compensatory offenders "are more opportunistic and impulsive," and "basically offend to fulfill unmet needs for physical closeness, affection and sexual relations."
Exploitive offenders "purposely use their position of authority and power to achieve their behaviour and fulfill their needs," including "control, power, [and] domination."
Angry offenders "persistently sexually harass and offend against women," "evidenc[ing] strong feelings of hostility, rage and resentment toward women."
Sadistic offenders "enjoy using their power and authority to control and dominate the victim," and get "marked pleasure out of being cruel and provoking suffer[ing]."

Assalian and Ravart are not the only experts to create a classification system for therapists who commit sexual misconduct.

A 1968 article citing a sample from Australia and New Zealand grouped offenders as follows: "11% were psychotic, 11% were alcoholic, 6% were neurotic, and 44% had character disorders." Gabbard grouped offenders into four categories: Those with "psychotic disorders"; those with "predatory psychopathy and paraphilias"; those who engaged in "masochistic surrender"; and those he described as "lovesick." The last category, the "lovesick" offender, is described as encompassing such traits as anger; unresolved issues like denial, repression, or incestuous or other longings; or unrealistic fantasies. Those in the "masochistic surrender" category have "masochistic or self-destructive tendencies," and "allow clients to intimidate or control them." According to Schoener, Gabbard's theory regards therapists in these two categories as treatable and possibly rehabilitatable. On the other hand, "[t]he psychotics and the predators are not deemed good subjects for rehabilitation," at least with regard to the possibility of returning to practice.

Irons focuses his system of classification on addiction. Evoking Jung, he divides offenders into what he calls "archetypal categories" :

"The naïve prince," who "tends to develop 'special relationships' with certain types of clients [and] blurs boundaries" ;
"The wounded warrior," who is "overly dependent" on his professional identity, and regards involvement with clients as a "temporary escape" from the feeling of being "overwhelmed by demands" ;
"The self-serving martyr," whose "work is primary" and who is in the later half of his career, and who tends to be "Withdrawn, angry, and resentful" ;
"The false lover," who tends to be a "risk-taker," and who 'enjoys living on the edge [and] the 'thrill of the chase'" ;
"The dark king," who tends to e "charming" but "manipulative," and who engages in "sexual exploitation as an expression of power" ; and
"The wild card," who "has major Axis I disorder" and "significant difficulties in functioning" both professionally and personally .

In an 88-person sample, Irons and Schneider found that five of the six "archetypal categories" comprised sex addicts; only the group labeled "naïve prince" included no one they classified as a sex addict. Of the others, they classified 14.8% of those in the "wild card" category, 37% of those labeled "wounded warriors," 62% of the "self-serving martyrs," 91% of the "dark kings," and 94% of those labeled "false lovers" as sex addicts. Schoener reports that Irons has continued to refine his classification systems, and has now "developed a typology for hostile and aggressive professionals."

Schoener himself, in collaboration with Gonsiorek, has developed a classification system. He notes that, "[w]hile this assessment methodology does not focus on sorting offenders per se, the categories were created to serve an educational purpose." Their methodology comprises six categories of personality types, the first of which includes two subcategories:

"Psychotic [and] severe borderlines," including:

"Manic disorders"; and
"Organic or toxic psychoses";

"Sociopathic and severe narcissistic personality disorders";
"Sexual impulse control disorders";
"Chronic neurotic [and] isolated";
"Situational offenders"; and
"Naïve."

Gonsiorek has also refined this classification system, defining these categories more specifically. He categorizes offenders as follows:

"naïve";
"normal and/or mildly neurotic";
"severely neurotic and/or socially isolated";
"impulsive character disorders";
"sociopathic or narcissistic character disorders";
psychotics";
"'classic' sex offenders";
"medically disabled"; and
"masochistic/self-defeating individuals."

[T]he assessor attempts to rule out serious pathologies (categories 1, 2, [and] 3). If the offender is probably in categories 4, 5 or 6 then the dynamics of the situation may be of importance. The assessment involves a parallel assessment of both professional history and functioning and personal history and functioning.

They describe their system as "unique" in its "emphasis in attempting to gain detailed background data through an interview of the victim or complainant." This approach, they contend, improves their understanding of the circumstances surrounding an alleged incident in three ways:

"It makes it less likely that one can be deceived about what happened;
"Even when the professional is trying to tell the truth, defensiveness may lead to denial or minimization;
"Even with a very cooperative subject the person being evaluated only knows part of the story of what happened – each person stores the information differently."

Norris, Gutheil, and Strasburger argue that groups of risk factors exist for both therapists and patients that make it more likely that therapist sexual misconduct

will occur. (Patient risk factors are discussed in later in this section.) They divide therapist risk factors into nine groups:

scheduling excessive or excessively long sessions, especially at the end of the day; giving permission to run up a high unpaid balance; making special allowances for the patient; and having nonemergency meetings outside the office. Therapists seeking consultation on such cases often begin the request with[:] "I don't usually do this with my patients, but in this case . . . ."

Regardless of the classification model used to label offenders, Schoener notes that certain aspects are common to each. One such aspect is "stress[ing] the importance of clearly defining the supervision" of an offender. "It is critical," he argues, "that [the supervision's] goals and requirements be spelled out in detail, and that case consultation (voluntary sharing of clinical material, often termed 'supervision') be differentiated from true supervision wherein the supervisor is legally responsible for the practice oversight."

Pope and Bouhoutsos have also created a classification system, but rather than focusing directly on types of offenders, they instead identifies ten "scenarios" in which therapist sexual misconduct tends to arise. Their system labels these scenarios as follows:

However, the approach Pope and Bouhoutsos use makes clear that sexual contact between therapist and patient does not necessarily occur only with a particular "type" of offender. Therapist sexual misconduct does not require "a scheming, malicious therapist overpowering – perhaps by physical force – a reluctant client." Rather, particular circumstances (or combinations of circumstances), coupled with a lack of preparation or an unwillingness to face therapeutic realities and professional responsibilities, may be at the root of many occurrences of therapist/patient sexual contact, regardless of the therapist's personality type.

Pope also cites a number of "contributing factors" that make it possible for incidents of therapist/patient sexual contact to occur. These factors, he argues largely fall into three broad categories: "varieties of sexual involvement"; "training issues"; and "denial." Each of these factors is discussed in the section entitled "Prevention," below.

Finally, some experts classify incidents of therapist sexual misconduct according to traits that appear to be common to particularly vulnerable victims. Citing work by Simon and by Pope and Bouhoutsos, Kuniholm and Church report that
certain characteristics of vulnerability have been identified as placing the patient at greater risk of exploitation:

Norris, et al., classify patient victims into six more formal categories. These include:

Sexual contact is not necessarily a prerequisite for a malpractice claim based on inappropriate boundary violations by a therapist. It is generally accepted among psychotherapists that interaction between patient and therapist that transgresses professional boundaries is inappropriate and may be harmful even without blatant sexual contact.

Bisbing notes that many therapists engage in common practices that may actually be boundary violations themselves. Such practices, when taken individually, usually do not amount to professional misconduct; however, they may provide evidence of a pattern or practice that support later allegations of serious misconduct, including sexual misconduct. Such warning signs include:

Simon lists 29 separate "precursor boundary violations," any or all of which may signal impending therapist/patient sexual contact. They include:

(1) Failing to maintain therapist neutrality and treatment boundaries;
(2) Failure to obtain a proper psychiatric history;
(3) Failure to properly evaluate a vulnerable patient;
(4) Failure to manage the transference-countertransference;
(5) Failure to diagnose a dependent personality disorder;
(6) Failure to render appropriate treatment;
(7) Improper use of psychotropic drugs;
(8) Using alcohol with the patient;
(9) Contributing to the patient’s drug and alcohol use;
(10) Failure to monitor drug therapy;
(11) Failure to consult;
(12) Failure to refer;
(13) Treating outside of the psychiatrist’s expertise;
(14) Infantilizing the patient;
(15) Abandoning the patient . . . ;
(16) Confidentiality violations;
(17) Deception;
(18) Exploitative use of hypnosis;
(19) Improper use of somatic therapies;
(20) Encouraging acting out;
(21) Use of drugs with patient;
(22) Using patients to perform work for the therapist;
(23) Failure to obtain informed consent to "innovative procedures";
(24) Failure to set limits on the patient’s behavior;
(25) Advising against education, training, and professional advancement;
(26) Exploiting the patient’s financial assets;
(27) Use of regressive techniques;
(28) Terrorizing the patient; [and]
(29) Instructing patients to engage in potentially harmful activities outside of therapy.

Such "lesser" boundary violations may reduce inhibitions and set the stage for greater ethical lapses. Moreover, if a therapist has engaged in such practices, a patient's disciplinary complaints or malpractice claims for sexual misconduct are more likely to succeed: Kuniholm and Church report that "experts observe that claims against therapists for sex abuse are generally more believable in he context of other boundary violations."

The harm caused by therapist sexual misconduct falls into different categories. The most obvious is psychological and emotional harm, which may take a variety of forms, discussed in this subsection. (A second form of harm, breach of fiduciary duty, is reviewed in the ensuing subsection.)

Pope argues that "perhaps the greatest part of the problem [of therapist sexual misconduct] is that most mental health professionals are unaware – in any specific and emotionally immediate way – of the damage that therapist-client sexual intimacy causes to the client." Despite the fact that therapists realize that such behavior entails risk to themselves, both personally and professionally, and "violat[es] ethical, legal, clinical, and professional standards," THERAPISTs "tend to be unaware of the devastating ways in which they are violating the client's welfare, trust, sense of identity, and potential for future development."

Despite this supposed lack of awareness, however, studies conducted over the last 35 years have amply demonstrated the harmful effects of sexual contact between therapists and patients. In 1980, Durre published a study, incorporating research dating back 11 years, that reviewed the effects of "amatory and sexual interaction between client and therapist." She found that such interaction "dooms the potential for successful therapy and is detrimental if not devastating to the client." The array of negative effects that she reported included "many instances of suicide attempts, severe depressions (some lasting months), mental hospitalizations, shock treatment, and separations or divorces from husbands. . . . Women reported being fired from or having to leave their jobs because of pressure and ineffectual working habits caused by their depression, crying spells, anger, and anxiety."

Another study three years later analyzed responses from therapists treating patients who had engaged in sexual contact with previous therapists. The authors concluded that, in those cases that had been reported, 90% of the clients suffered harmful effects. Such effects included:

A well-known 1991 study by Pope and Vetter likewise concluded that about 90% of patients who became sexually involved with a therapist were harmed by the contact. Perhaps more surprisingly, Pope and Vetter also reported that 80% of such patients were harmed even when the sexual relationship began only after the therapeutic relationship had been terminated. "About 11% required hospitalization; 14% attempted suicide; and 1% committed suicide." And of those patients reporting harmful effects, "only 17% recovered fully," by their own assessments.

The same study also identified what its authors described as the "10 of the most common reactions that are frequently associated with therapist-patient sex." It is significant that none of these reactions is healthy or useful; the best that may be said of them is that their effects are negative. Pope and Vetter define them as follows:

People may walk into the offices of complete strangers and, if the stranger is a therapist, begin talking about thoughts, feelings, and impulses that they would reveal literally to no one else. Every state, appreciating the exceptionally sensitive nature of the "secrets" that patients may entrust to their therapists, have established in their laws a formal therapist-patient privilege. The ethics codes of all major mental health professions recognize the therapist's responsibility to maintain confidentiality when patients trust the therapist to the extent that they disclose personal information in therapy. Beyond investing therapists with trust regarding their own privacy, confidentiality, and "secrets," patients trust therapists to act in a way consistent with patient well-fare and to avoid intentionally engaging in any behavior that not only is unethical and prohibited by law but also places the patient at so needless a risk for harm.

have significantly increased risk of both suicide attempts and completed suicides when compared with the general population and other groups of patients. The research published in peer-reviewed journals suggests that about 14% will make at least one attempt at suicide and that about one in every hundred patients who have been sexually involved with a therapist commit suicide.

[T]he sessions and the relationship are no longer about the therapist being of use to the patient in service of the patient's welfare but rather the patient being of use to the therapist in service of the therapist's sexual gratification. The fundamental clinical, ethical, and legal boundary that would prevent a therapist from turning patients into sources for the therapist of sexual pleasure, experimentation, relief, variety, or control is violated.

Significantly, Pope and Vetter note that the harm to a patient from therapist sexual misconduct can be long-term:

The negative effects of the therapist's violation of boundaries and reversal of roles can generalize beyond the therapy and persist long after the termination of the therapy and the sexual relationship. The roles and boundaries that people use to define, mediate, and protect the self may become not only useless for the patient but also self-defeating and self-destructive.

Especially when the patient is experiencing feelings of emptiness and isolation, the specific sexual activities previously experienced with the exploitive therapist--often re-enacted in the midst of flashbacks--may represent an attempt to fill up the self and break through the isolation. For still other patients, sex becomes associated with feelings of irrational guilt. They may engage in demeaning, degrading, joyless, painful, harmful, or dangerous sexual activities that seem to express the conviction: "I am guilty, worthless, and deserve this." Some may become so confused about sexuality that they begin labeling a variety of feelings and impulses as "sexual." They may, for example, say that they are sexually aroused whenever they are feeling intensely angry, depressed, anxious, or afraid.

[I]t may be difficult for [such patients] to experience the anger directly. Some may feel only numbness in situations that, according to them, would have previously evoked anger. Some may turn the anger inward, becoming enraged at themselves. The anger directed inward may lead to self-loathing, self-punishment, and self-destructive behaviors including suicide.

An essential aspect of these results is that they were provided by therapists who have treated patients who had been sexually involved with a previous therapist. And despite the frequency both of therapist sexual misconduct and of denials that such conduct is harmful, these results suggest that most therapists do indeed recognize that such sexual contact does indeed cause harm.

Data from other studies also demonstrate that many therapists experience a significant degree of discomfort when sexual issues arise during the therapeutic relationship. Some experts suggest that this discomfort may lead therapists to avoid certain patients, issues, or courses of treatment; to mishandle non-sexual aspects of treatment; to engage in sexual contact; and to result in inadequate professional training and resources with regard to sexual boundaries and issues.

Anecdotal evidence and data from a number of studies appear to support the hypothesis of "countertransference anxieties," as Tower labels this phenomenon : For example, in 1950, Thompson noted that "many of Freud's pupils became afraid to be simply human and show the ordinary friendliness and interest a therapist customarily feels for a patient." In 1965, Fine discussed the potential for therapist sexual discomfort to lead to misdiagnoses. A 1976 study "suggested that female therapists actively avoid treating attractive male clients." According to the results of Schover's 1981 study, male therapists "react[ed] 'with anxiety and verbal avoidance of the material' when a female client discussed sexual material." And Searles wrote of his own "considerable anxiety, guilt, and embarrassment when he experienced sexual reactions during treatment of patients."

As noted above, the Pope/Vetter study raises troubling questions about the extent to which therapists who engage in sexual misconduct target vulnerable patients. Of the 958 patients surveyed, about 5% "were minors at the time of the sexual involvement with the therapists." Prior to becoming sexually involved with a therapist, about 10% of the patients surveyed had been raped; roughly one-third of respondents had been victims of "incest or other child sex abuse."

Moreover, the study's use of the term "minor" to describe underage victims of therapist sexual misconduct is inapt. The word "minor" may imply an older adolescent, but research indicates that, particularly with regard to female child victims, most are much younger:
One national study of therapist-client sex involving minors found that the majority were female. The average age of a minor female client who had been sexually involved with a therapist was 7. They ranged in age from 3 years old to 17. The average age of a minor male client who had been sexually involved with a therapist was 12. The boys in this study ranged in age from 7 to 16.
The Pope/Vetter study described as "exceptional" its findings on gender differences. They reported:

Data from each research approach suggest that offending therapists are overwhelmingly (though not exclusively) male while exploited clients are overwhelmingly (though not exclusively) female. Each method of study has strengths and weaknesses, but in each, the number of male offenders exceeds the number of female offenders and the number of female victims exceeds the number of male victims, even after the over-all proportions of male and female therapists and of male and female clients have been taken into account. The extreme gender differences led UCLA professor Jean Holroyd, principal investigator of the first national study of therapist-patient sex, to write that 'sexual contact between therapist and patient is perhaps the quintessence of sex-biased therapeutic practice': female clients do not have equal access to non-abusive therapy. The following section reviews peer-reviewed findings representing 4 of the major methods of study.

Psychiatrists Melanie Carr and Gail Robinson wrote: "[W]omen are often programmed to take responsibility for and feel guilty about relationships and their problems. The almost universal expression of guilt and shame expressed by women who have been sexually involved with their therapists is a testament to the power of this conditioning."

Psychiatrist Virginia Davidson, analyzing the similarities between therapist-patient sex and rape, wrote:

"Women victims in both instances experience considerable guilt, risk loss of love and self-esteem, and often feel that they may have done something to "cause" the seduction. As with rape victims, women patients can expect to be blamed for the event and will have difficulty finding a sympathetic audience for their complaint. Added to these difficulties is the reality that each woman has consulted a therapist, thereby giving some evidence of psychological disequilibrium prior to the seduction. How the therapist may use this information after the woman decides to discuss the situation with someone else can surely dissuade many women from revealing these experiences.

Ultimately, however, therapists must understand that sexual contact with patients is harmful, whatever the patient's age or gender. As Pope notes: "Adults and children who are hurting, confused, vulnerable, sometimes desperate, who come for help and place their trusts in therapists deserve more than to be used to gratify therapists' sexual impulses."

One of the most troubling aspects of the history of sexual misconduct by therapists involves the consequences of such ethical violations. Therapist sexual misconduct produces negative effects not only for patients but for the therapists themselves. And while the mental health professions have begun to acknowledge these consequences and deal with such violations accordingly, one disturbing practice still persists: attempts by the offenders (and their colleagues) to justify their conduct.

Some therapists attempt to deny the harmful effects that sexual relationships have on patients by arguing that such relationships are for therapeutic purposes. What Pope characterizes as "[t]his strong and persistent denial" is what, he argues, "enables a number of senior and apparently respected psychologists to use 'client welfare' as a rationale for engaging in sex with the client." They may insist that therapist/patient sexual contact is a valid therapeutic tool, used "for the patient's own good" because the patient would not make therapeutic progress until he or she had engaged in a "healthy" sexual relationship.

Another variation of this "defense" occurs when the patient is a student therapist. Attorney John D. Winer reports representing a client who, as a "therapist-in-training," was undergoing analysis as part of her educational requirements. The therapist who handled her analysis engaged in sexual contact with her, and her psychological state subsequently deteriorated. When she complained, the therapist threatened to sue her for defamation and breach of contract. He also attempted to raise as "defenses" the arguments that he "had the [patient's] best interests at heart," and that, regardless, she "was a sophisticated analyst-in-training and knew exactly what she was doing." Ultimately, the therapist agreed to a $600,000 settlement.

As Pope notes, some studies appear to show that highly-educated therapists who have undergone psychotherapy personally may actually be more likely to engage in therapist/patient sexual contact. He speculates:

It is worth considering whether high educational accomplishment and professional status may not only . . . help perpetrators to avoid detection but also contribute more generally to some psychologists' sense that they and their colleagues are (or should be) above the law and beyond accountability to which other less entitled citizens are subject, that they are too elite and knowledgeable to be subject to such restraints, and that even to call their behavior formally into question is an affront and may be unethical.

It may be this attitude of special entitlement that leads some therapists to attempt to invoke a particularly insidious "defense" to engaging in sexual contact with patients: "civil disobedience." Some practitioners appear to extend the "civil disobedience" argument to boundary violations of all kinds, as well as other ethical and legal lapses. Pope argues: "For psychologists to arrogate this term to avoid accountability for engaging in sexual abuse, keeping secret the sexual abuse of others, committing perjury, faking professional credentials and obtaining expensive gifts from clients seems, at best, misguided."

Use of such a mild term as "misguided" to describe such flagrantly unethical behavior is perhaps itself "misguided." As Pope and Bajt report elsewhere:

[I]n one study of exceptionally accomplished and respected senior psychologists, 9% of those who reported intentionally breaking formal legal and ethical standards revealed that the standard they violated was the prohibition against sex[,] and that this violation was an act of professional responsibility (i.e., that they engaged in sex with the client to promote "client welfare").

A final "defense" that some MFTs and LCSWs may attempt to use to justify sexual relationships with clients is the supposed "'true love" exception." A therapist who invokes this "exception" argues that his or her sexual relationship with a patient was a product of "true love," and thus does not fall into the ethically problematic category that other therapist/patient sexual contact does.

However, as attorney Brandt Caudill notes: "Under no circumstances should any therapist seriously consider a sexual relationship with a present or former patient regardless of how long the interval has been between the termination of the patient and the beginning of the relationship." Such a supposed "exception" does not exist; invoking it certainly will not provide any legal protection for a therapist accused of sexual misconduct. Caudill, who specializes in therapist malpractice cases, particularly those involving sexual contact with patients, warns:

It is almost axiomatic that what is seen as true love at the time the relationship begins is seen as mishandling of transference after the relationship ends. . . . There is no true love exception, there never has been a true love exception, and, in all probability, there never will be a true love exception.

MFT’s and LCSW’s who engage in sexual conduct with clients expose themselves to specific potential legal consequences. According to Pamela Sutherland, these fall into three major categories: licensure actions, civil litigation, and criminal charges. Regardless of the form any sanction may take, from a legal standpoint, therapist sexual misconduct is unethical as a matter of law, and is likely to constitute malpractice.

Across the country, attorneys and even entire law firms specialize in therapist misconduct lawsuits. Some have practices devoted exclusively to defending therapists; others limit their practices exclusively to representing plaintiffs in suits against therapists. And as Schoener reports, "more than 50% of legal costs on behalf of psychologists in the U.S. are accounted for by sexual misconduct cases." However, he also notes that this "does not mean that the sexual activity per se was the major cause of the damages." "[A] great range of non-sexual misconduct is present in most 'sex cases,'" and actual liability may instead be caused directly by the non-sexual misconduct, such as breach of fiduciary duty or mishandling of the transference phenomenon. In such instances, "damage would have been done even had the sexual contact not occurred."

Jorgenson and Sutherland identify seven categories of "causes of action," or grounds for a lawsuit, under which therapists who commit sexual misconduct may be sued: 1) negligence and malpractice; 2) breach of fiduciary duty; 3) negligent infliction of emotional distress; 4) intentional torts; 5) breach of contract or breach of implied warranty; 6) "spousal claims"; and "employer liability." With regard to patient lawsuits against therapists, malpractice is by far the most common cause of action, and negligence is by far the most common type of malpractice alleged in such suits.

Negligence generally requires four basic elements: The defendant must 1) owe a duty of care; 2) must breach that duty; 3) harm must occur; and 4) the harm must be a result of the defendant's breach of duty. California laws outline the duties a therapist owes to patients. Breach of any of these duties risks harm to the patient – and legal liability to the therapist.

Increasingly, therapist malpractice suits involve allegations of therapist sexual misconduct. The first successful patient lawsuit to allege negligence based on therapist/patient sexual contact was decided in 1968. It was also the first such suit to ground its theory of negligence explicitly in the notion of mishandled transference. Despite the fact that the case is nearly 40 years old, in many ways it remains a standard in therapist sexual misconduct litigation.

Because of the transference that occurred during the course of treatment, Mrs. Zipkin developed romantic feelings for her psychotherapist, Dr. Freeman. Freeman embarked upon a romantic relationship with her that transgressed a number of professional boundaries. During the course of the relationship, they engaged in "nude swimming" with a number of Dr. Freeman's other patients, overnight trips, and sexual contact. Dr. Freeman convinced Mrs. Zipkin to leave her husband and children, steal her husband's clothing for Dr. Freeman's use, use her savings to buy him a farm, and work the farm as one of his employees.

Eventually, the relationship ended, and Mrs. Freeman sued Dr. Zipkin for negligence, alleging that she had suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, was irritable and suffered financially." The Missouri Supreme Court agreed – and its decision also foreshadowed Kuniholm and Church's assertion that "interaction between patient and therapist that transgresses professional boundaries is inappropriate and may be harmful even without blatant sexual contact." The court concluded: "It is pretty clear from the medical evidence that the damage would have been done to Mrs. Zipkin even if the trips outside the state were carefully chaperoned, the swimming done with suits on, and if there had been ballroom dancing instead of sexual relations."

John D. Winer, a California plaintiff's attorney who specializes in such cases, claims to have obtained millions of dollars' worth of verdicts and settlement agreements in therapist sexual misconduct cases. One settlement, for half a million dollars, was awarded to a client who had lived briefly with her psychiatrist after the psychiatrist terminated her two-year course of treatment. According to Winer, "[i]t became clear that the [psychiatrist], through inappropriate psychotherapy techniques and abuse of the transference phenomenon, had been 'setting up' the plaintiff to engage in the sexual relationship for the last eight months of therapy."

In another case involving a therapist/patient sexual relationship that began after the termination of treatment, the patient was awarded a $490,000 settlement. According to Winer, "expert witnesses" who "debriefed" the patient "indicated that the psychiatrist had committed multiple acts of negligence and malpractice during the time of treatment which 'set the plaintiff up' for the sexual relationship which was to follow." Moreover, as in Zipkin, the sexual contact was far from the only problem: Testimony "indicat[ed] that the damage to the [patient] was not caused by the sexual relationship which, in fact, did not injure her, but was caused by the therapist's malpractice[,] which destabilized the plaintiff and her relationship with her own family and caused her to become addicted to prescription medication."

Therapist malpractice insurance policies frequently include clauses providing that the insurance company is not liable for claims arising from the therapist's sexual misconduct. Courts vary in their application of such clauses: Some uphold them, finding that the therapist is personally liable for any damages arising out of sexual misconduct claims; others refuse to enforce such clauses, holding the insurance company liable, at least in part, for such damages.

Such a clause played a role in the case discussed above, involving the patient who was awarded a half-million dollars when her psychiatrist used the "last eight months of therapy" to "set her up" for the subsequent sexual relationship. The insurance company argued that "sexual misconduct was excluded under their insurance policy," it ultimately paid a portion of the overall settlement. The therapist was personally liable for the balance.

In a 1998 Texas case, however, the court held that an insurance policy provision limiting liability to $25,000 in cases arising out of therapist sexual misconduct was valid, and superseded any public policy interest in removing such caps as a way of encouraging sexual abuse victims to report the abuse. In American Home Assurance Company v. Stephens , therapist Billy Stephens's malpractice insurance company sued him to recover damages awarded to one of Stephens's patients for sexual misconduct. The original malpractice suit was brought by Rory Ross, who had undergone four years of treatment and sexual contact with Stephens. Ross subsequently filed a malpractice claim, on grounds that he had negligently misdiagnosed her and that his course of treatment had been negligent. American Home defended Stephens at arbitration, but lost: Ross was awarded $2.9 million.

American Home contested the award in federal court, arguing that a clause in Stephen's policy capped coverage for any claims arising out of therapist sexual misconduct at $25,000. The court agreed, concluding that the insurance company could be held liable only for a maximum of $25,000. On appeal, the Fifth Circuit Court of Appeals found that the state's public policy interest in encouraging victims of therapist sexual misconduct to report the abuse was better served by refusing to enforce such caps. Holding that such a public interest superseded the private contractual provisions of the insurance company's policy, the Fifth Circuit initially overturned the trial court's decision.

However, the appellate court then asked the Texas Supreme Court to issue its interpretation of Texas law with regard to the competing interests of encouraging reporting of sexual misconduct and upholding private contractual agreements. The Texas Supreme Court held that, under Texas law, American Home's policy provisions superseded public policy interests in encouraging reporting by refusing to enforce coverage caps. Ultimately, American Home's $25,000 cap was enforced, leaving Stephens personally liable for the balance of the $2.9 million award.

As noted above, the pervasiveness of exclusionary clauses and coverage caps makes it unwise for therapists to assume that their malpractice insurance will cover all damages arising out of claims of sexual misconduct; malpractice insurance is likely to cover only a portion of the award at best, and indeed may cover none of it at all. However, as the wide disparities among the decisions in the American Home litigation makes clear, insurance companies likewise should not assume that the presence of such a clause in an insurance policy will insulate the company against damage awards for therapist sexual misconduct. In most cases, whether damages will be assessed against therapist, insurer, or both, and in what proportions, is likely to vary widely according to jurisdiction, the wording of the insurance policy and any applicable laws, and the individual facts of each case.

Many different kinds of relationships, particularly professional relationships, may involve a fiduciary duty. A fiduciary duty is a duty imposed, generally, on the more powerful party to act in the best interest of the less powerful party. A lawyer, for example, has a fiduciary duty to her clients, who place their trust and confidence in her hands; she has special expertise they do not, and they retain her and pay her fees with the understanding that she will use that expertise to represent their interests. Similarly, a physician has a fiduciary duty to his patients: They seek his medical advice because he has the specialized knowledge and skill necessary to deal with their health problems in ways that they cannot – and, again, they pay his fees in the expectation that he will use that knowledge and skill to make them well.

An early therapist sexual misconduct suit based on breach of fiduciary duty was the 1976 case Roy v. Hartogs. Ms. Roy was treated by Dr. Hartogs over a 13-month period. She alleged that Hartogs purported to "'treat' [her] for her lesbianism by engaging in sexual relations with her." Roy claimed that sexual relations as a method of "treatment" were a breach of fiduciary duty. Hartogs claimed that her allegations amounted not to breach of fiduciary duty, but to "alienation of affection," an obsolete cause of action no longer recognized by the courts. However, the court upheld Roy's right to pursue a claim for breach of fiduciary duty, holding that she "allege[d] coercion by a person in a position of overwhelming influence and trust."

"Emotional distress" may be inflicted either negligently or intentionally. Negligent infliction may occur as a result of a therapist's failure to do something required under customary standards of practice. However, such a failure may not involve an overt act or omission; rather, it may result from a therapist's mishandling of some part of the therapeutic process, such as transference or countertransference.

As a cause of action, emotional distress encompasses a host of emotional and psychological difficulties. In Zipkin, for example, Mrs. Zipkin alleged that she suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, [and] was irritable." A patient who files a claim for emotional distress might allege some or all of these difficulties. It might also include such claims as depression, anger, or thoughts of suicide, as well as an wide array of other emotional problems. And despite the fact that Mrs. Zipkin grounded her claims in negligence, it seems likely that today, the facts present in Zipkin might support a claim for intentional infliction of emotional distress, discussed in the next subsection.

A 1988 California case upheld a claim for negligent infliction of emotional distress where the sexual contact occurred not between therapist and patient, but between the therapist and the patient's spouse. In Richard H., the patient apparently initially sought treatment because of marital difficulties. In addressing his emotional distress claim, the court held: "It is readily foreseeable that a patient seeing a psychiatrist for purposes of stabilizing and improving his or her marriage would feel betrayed and suffer emotional distress upon learning that the psychiatrist has, during the course of the patient's treatment, been engaging in sexual relations with the patient's spouse."

Negligent infliction of emotional distress is sometimes used to hold therapists liable for harm to so-called "secondary victims" – third persons – resulting from the practitioner's sexual relationship with a patient. Generally, such claims apply to family members – e.g., spouses, parents, etc. In a 1989 case, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. , a mother sued a therapist and his employer for allegedly sexual assaulting her child, who was a patient. Her suit alleged negligent infliction of emotional distress; the defendants challenged the validity of the cause of action. However, the court permitted her claim for emotional distress to go forward.

A "tort" is an action one person commits that harms another. And "intentional tort" is precisely what its name implies: an act that a person commits intentionally to harm another person. Intentional torts take a variety of forms: Assault, battery, intentional infliction of emotional distress, and "fraudulent misrepresentation" are just a few examples that are likely to be especially relevant in cases of therapist sexual misconduct. As with sexual misconduct generally, malpractice insurance policies traditionally exclude intentional torts from coverage. MFTs and LCSWs thus may be personally liable for intentional torts. However, insurance companies likewise should not assume that the existence of an exclusionary clause will in all cases prevent liability for an insured therapist's intentional torts. As with sexual misconduct generally, some courts may hold that other laws or policy interests supersede such clauses.

As noted previously, in many jurisdictions, any sexual contact between therapist and patient is nonconsensual from a legal standpoint. The nature of the therapeutic process is so psychologically and emotionally intimate, and may involuntarily produce such great psychological dependency on the part of the patient, that the patient cannot be said to have given "consent" to such a relationship. Thus, any sexual contact by the therapist may leave him or her open to claims of assault and/or battery.

In most jurisdictions, "assault" is generally defined as an act that a reasonable person would interpret as an attempt to touch him or her in an unwelcome way. In other words, the act need not necessarily be physically violent, such as a punch, nor cause demonstrable physical harm, such as a black eye or a broken nose. Something as simple as a hug, under certain circumstances, may constitute an assault. Perhaps even more important, no actual "touch" need even occur: The victim only needs to fear that the touch is going to occur, and that fear needs to be reasonable considering all the circumstances. "Battery," on the other hand, does require that a "touching" actually occur, but again, the touch may be a hug or a pat. If it occurs without the person's consent and a reasonable person would find it harmful or offensive under the circumstances, it is a battery. With regard to claims of assault and battery, context is of the utmost importance, and this is perhaps nowhere more true than in the therapist/patient relationship. (In addition to providing causes of action in civil personal injury litigation, assault and battery may also subject the MFT and LCSW to criminal charges. These are discussed in the next subsection.)

As noted in the previous subsection, emotional distress may also be an intentional tort. Because of both the imbalance of power inherent in the therapist/patient relationship and the emotional dependency created by the therapeutic process, acts that might otherwise carry no legal liability may be considered an intentional infliction of emotional distress. For example, a MFT or LCSW involved in a sexual relationship with a person who is not his patient may find, when he terminates the relationship, that his former partner becomes depressed, angry, emotionally unstable, and even suicidal. In a nonprofessional context, such results are unfortunate (perhaps even tragic), but rarely involve any sort of legal liability for the person who terminates the relationship. However, suppose that the therapist embarks upon a sexual relationship with one of his own patients – knowing that the person is vulnerable, emotionally fragile, and likely to become depressed or unstable upon termination of the relationship – and yet terminates it anyway, he may be found to have committed intentional infliction of emotional distress.

Certainly, such a claim is much more likely to succeed today – for example, in cases such as Zipkin, where a therapist purposely convinces a patient to subjugate herself to him in especially humiliating ways (e.g., such as inducing her to buy him a farm and then forcing her to work it as a laborer). In a 1996 case from Pennsylvania, Corbett v. Morgenstern , a federal court upheld a patient's claim for intentional infliction of emotional distress where it was based on allegations of a therapist/patient sexual relationship during after termination of treatment.

Therapists should also be aware of another aspect of another aspect of Corbett: The court also upheld the patient's right to sue for punitive damages, based upon the claim of intentional infliction of emotional distress. Punitive damages are financial damages that are awarded to a plaintiff in a lawsuit beyond the damages awarded to compensate her for the harm that occurred. Punitive damages are designed as a deterrent, to prevent the defendant and others from engaging in such harmful contact in the future. To accomplish this deterrent effect, punitive awards are often much higher than compensatory damages.

Finally, "fraudulent misrepresentation": Such a claim must meet five conditions.

Within the context of the therapeutic relationship, fraudulent misrepresentation provides a likely cause of action for sexual misconduct, particularly where the therapist tells the patient that the sexual contact is a part of the therapy process.

Breach of contract claims are precisely what they sound like: claims that one party has not lived up to his or her end of a contract. California MFTs and LCSWs must be aware that a contract may exist even if there is no agreement that is labeled a "contract." Indeed, there need not even be a formal agreement, either written or verbal. In some contexts, courts may deem interactions between parties to be governed by an "implied" contract, particularly where one party has a fiduciary duty to the other.

Because therapists have a fiduciary duty to patients, even if no written agreement exists, courts are likely to find that an implied contractual arrangement does exist. A claim for breach of implied contract may arise a number of ways – for example, in the context of the fee-for-service arrangement. Despite the fact that the patient has paid all fees as agreed, he has not received the treatment promised.

Many jurisdictions now also codify "patients' rights," in codes of ethics, statutes, or both. Usually, such rights include the right to be treated without sexual contact or pressure to engage in such contact. Many individual practitioners also adopt a "patients' bill of rights," which is prominently displayed in their offices and printed on intake forms or other documentation. As a result, even where there is no explicit contract covering potential therapist/patient sexual contact, the existence of either mandatory or voluntary "patients' rights" codes may create an implied contract not to engage in such misconduct.

Moreover, as with intentional torts and negligence, the unique characteristics of the therapeutic relationship may also support a cause of action for breach of implied contract. Therapists are trained to treat patients who are emotionally vulnerable and psychologically dependent; that training includes handling boundary issues that arise out of the transference and countertransference processes. Therapists thus may reasonably be expected to be aware of both the possibility that such issues may arise and the harm that mishandling them may cause to the patient. And because this imbalance in power is so great, and the potential for harm so substantial, even in the absence of a "patients' bill of rights," courts may conclude that an implied contract exists.

Jorgenson and Sutherland report that a breach of contract claim succeeded in a therapist sexual misconduct case as early as 1972. In Anclote Manor Foundation v. Wilkinson , a widower sued his late wife's therapist (and employer) for breach of contract. During the course of treatment, the therapist had engaged in a sexual relationship with the patient; she subsequently committed suicide. The court ruled in favor of the patient's husband, although it awarded him only the amount of the therapy fees and hospital bills.

Breach of warranty involves the failure to provide a product or service of the quality or for the use promised. In the therapist/patient context, such claims may arise where the treatment process does not produce the results for which the patient visited the therapist in the first place. While most therapists are unlikely to provide explicit warranties that their services will achieve particular results, the very fact that they are engaged in practice may "imply" a warranty that those services will at least help, rather than harm, their patients.

For example, a patient who goes to a therapist seeking help for depression quite reasonably expects that the course of treatment the therapist prescribes will, if followed, reduce or eliminate the depression. By taking on the patient, the therapist may effectively "warrant" (or guarantee) that her services, if the patient complies with the course of treatment, will obtain the desired result. However, if the therapist's course of "treatment" includes sexual contact, the sexual relationship may lead the patient to become more rather than less depressed. A court may conclude that, by engaging in conduct she knows has the potential to cause harm, the therapist has breached an implied warranty to provide helpful, not harmful, treatment.

Jorgenson and Sutherland report that, in cases of therapist sexual misconduct, breach of implied warranty claims have so far been less likely to succeed. They cite a 1985 Texas case, Dennis v. Allison , as an example of courts' refusal to recognize such claims. In Dennis, however, the court apparently did not reject the patient's breach of implied warranty claim on its merits. Rather, it held that because other remedies were available to the patient in her suit for therapist sexual misconduct, it did not need to consider breach of implied warranty.

Spousal claims – and other third-party claims, such as those by parents – may encompass a variety of causes of action. Examples include breach of contract (as in Anclote Manor , discussed above), negligent infliction of emotional distress (as in Marlene F. , above), loss of consortium (in the case of a spouse), and wrongful death (e.g., in the case of a patient suicide).

A spouse may be able to sue for breach of contract if, as in Anclote Manor , the spouse has paid the therapy fees and attendant expenses. The same may be true in the case of a parent who pays for therapy for a minor child. Depending upon the circumstances, either a spouse or a parent may be able to sue for negligent infliction of emotional distress. In Marlene F. , a parent's right to sue was upheld because it was reasonably foreseeable that a parent would suffer emotional distress upon hearing that her child's therapist had allegedly molested his minor patients.

Jorgenson and Sutherland also cite a 1991 case from Maryland, Figueiredo-Torres v. Nickel , in which a therapist was treating both husband and wife. During the course of treatment, he not only engaged in sexual contact with the wife, but also told the husband that "he should stay away from his wife because he had bad breath, [that he] was a '"codfish" and that his wife deserved a fillet [sic].'"

With regard specifically to spousal claims, some courts will also permit claims for loss of consortium (loss of the spouse's companionship and/or sexual relations), and, in a few jurisdictions, alienation of affection. A cause of action for alienation of affection, traditionally brought against the third party with whom a spouse engaged in an adulterous relationship, no longer exists in many states. However, Jorgenson and Sutherland report that Utah, for example, still recognizes such claims: In 1991, after a therapist embarked upon a sexual relationship with a patient and she subsequently left her husband and children, a Utah court upheld the husband's right to sue the therapist for alienation of affection. However, Jorgenson and Sutherland also note that some courts will not permit a patient's spouse to sue for negligence. For example, in another Maryland case, Homer v. Long , the court refused to recognize a spouse's claim on grounds that "the therapist owe[s] no duty to the spouse 'even if, as here, the spouse is the one who initially employed the therapist and is paying the therapist's fees.'"

In medical malpractice cases, wrongful death claims by survivors have long been accepted by the courts when a patient dies. For purposes of wrongful death, a "survivor" who has standing to bring such a claim may include a spouse, a child's parent or guardian, or a patient's own children. Definitions of who qualifies as a survivor vary by state.

When a therapist is employed by, or affiliated with, a hospital, clinic, group practice, or other organization, that organization may also be liable for the therapist’s sexual misconduct. Exceptions sometimes exist for public entities, such as government-run hospitals, or charitable institutions: In such cases, the employers may be entitled to "immunity" from liability. However, even under such circumstances, employers may be entitled only to "qualified immunity": Depending upon the specific circumstances of the individual case, the plaintiff may be able to prove that because of the employer's actions or involvement, it is not entitled to immunity from liability.

With regard to sexual misconduct cases, the extent to which jurisdictions are willing to grant either full or qualified immunity to employers varies widely. The key is usually "agency" – i.e., the extent to which the therapist acts as an "agent" of the employer when he or she engages in the misconduct. Determining whether the therapist acted as an agent of the employer often turns on whether the misconduct occurred "within the scope of employment."

Some states use what is known as the "motivation to serve" test. In such jurisdictions, courts will find an employer liable only if the therapist's misconduct was "motivated at least in part by a desire" to further the employer's interests. In a 1984 case, Andrew v. United States , a court found an employer not liable when a physician's assistant engaged in sexual contact with a patient, on grounds that the sexual contact did not further the employer's interests.

However, Jorgenson and Sutherland report that most states have adopted some version of a general agency theory (sometimes described in terms of "master" and "servant"). Under this theory:

Under this theory, however, "[c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."

Some jurisdictions use what legal experts call a "'but-for' test": in other words, evidence that "but for" the fact that the employer employed the therapist, the misconduct would not have occurred. A Minnesota court used such a test in 1982 in Marston v. Minneapolis Clinic of Psychiatry . In Marston, "[t]he court found that the jury could weigh the facts and determine that the sexual conduct would not have occurred but for the psychologist's employment with the clinic."

Other states use variations of the "motivation to serve" test to interpret and apply general agency theory. For example, in 1990, an Alaska court found that a therapist's sexual contact with a patient occurred within the scope of employment: The plaintiff met the "motivation to serve" test because the contact arose out of the employee's work and was "reasonably incidental to the employee's legitimate work activities." According to the court, "because an employee is never authorized to commit a tort, [agency theory] must mean 'only that the act which leads to the tortious behavior cannot be different in kind from acts the employee is authorized to perform in furtherance of the employer's enterprise.'"

Under certain circumstances, the law also recognizes what is known as a "duty of extraordinary care" to certain types of persons. For example, "common carriers" (e.g., bus lines, railroads, airlines, etc.) have a heightened (or "extraordinary") duty of care to passengers, because of the "passengers' surrender of their ability to protect themselves from harm" while using the carrier. Jorgenson and Sutherland note that, "[m]ore recently, courts have extended this duty of extraordinary care to innkeepers, hospitals and other entities who invite the public to become, in effect, guests in their facilities."

Courts have applied the "common carrier" theory of liability to medical and residential facilities in cases of employee sexual assault. In a 1989 Indiana case, Stropes v. Heritage House Childrens Center Of Shelbyville, Inc. , the court found a residential care facility liable for a mentally retarded resident's sexual assault by a nurse's aide:

When Heritage accepted [the plaintiff] as a resident of its facility, it was fully cognizant of the disabilities and infirmities he suffered which rendered him unable to care for himself and which, in fact, undoubtedly formed the basis of their relationship. Their "contract of passage" [i.e., which created "common carrier" liability] contemplated that the entire responsibility of [the plaintiff's] comfort, safety and maintenance would be on Heritage . . . .

Two elements were key in Stropes: 1) the plaintiff's particular vulnerabilities (i.e., as a mentally retarded individual); and 2) the fact that the plaintiff used the services of the residential facility specifically for the purpose of keeping him safe and secure in light of those vulnerabilities. This analysis has significant implications for MFTs and LCSWs and their employers in cases of sexual misconduct, since patients who retain a therapist's services are likely to be emotionally and psychologically vulnerable, and since they retain those services specifically to help them overcome those vulnerabilities.

In certain circumstances, an employer may also be "directly liable" when an employee engages in sexual contact with a patient or client. Direct liability generally applies in cases where the employer's recruitment, training, supervision, or retention of the employee in question is at issue. For example, a hospital, clinic, treatment facility, or other similar institution has a specific duty to ensure that it does not hire employees who pose a demonstrable risk to patients. In other words, such institutions must be diligent in reviewing potential employees' backgrounds, so that they do not hire employees with criminal records, demonstrated psychological problems, or a history of misconduct.

If an employer fails to screen potential employees' backgrounds and subsequently hires a therapist with a history of sexual assault, the employer is much more likely to be held directly liable for "negligent hiring" if that therapist subsequently engages in sexual contact with a patient. Likewise, if an employer learns that a therapist has engaged in sexual misconduct and fails to take appropriate measures to prevent such misconduct in the future, the employer may be directly liable for "negligent supervision" and/or "negligent retention."

In a 1986 case, Andrews v. United States , the Fourth Circuit Court of Appeals found the federal government liable in a suit filed by a patient and her husband. In Andrews, the court found that the supervising physician was negligent in "fail[ing] to terminate the relationship between the physician's assistant and the patient after receiving information as to the assistant's sexual impropriety with the patient at an early stage."

In a 1985 case, Thelen V. St. Cloud Hospital , a Minnesota court found the hospital directly liable for negligence because it "fail[ed] to report an employee's sexual abuse of a patient." Similarly, in Copithorne v. Framingham Union Hospital , a 1988 Massachusetts decision, the court found the hospital liable for a staff doctor's rape of a patient. The court held that the hospital was negligent in allowing the doctor to retain staff privileges when "it knew or should have known that the physician 'posed a risk of harm to women' based upon prior conduct."

Therapist/patient sexual contact may also subject a therapist to criminal penalties, including imprisonment. Whether such contact constitutes a criminal offense varies by jurisdiction, and much depends on the individual circumstances of a case. Rape is a criminal offense in every state. However, while a patient may truthfully argue that her sexual contact with her therapist occurred without her consent, the dynamics of the therapeutic relationship may make such a charge difficult to prove. This is particularly true if the patient alleges that her lack of consent stems from an inability to consent because of the therapeutic relationship, (i.e., as opposed to a lack of consent where the therapist forcibly penetrates the patient against her will). Moreover, patients who are victims of therapist sexual misconduct often suffer from mental illness, including schizophrenia and other delusional disorders. Such patients' psychological condition may make authorities less likely to believe their allegations of sexual abuse in the face of denials by an articulate mental health professional.

However, Jorgenson and Sutherland report that, as of 2002, "[n]ine states ha[d] criminalized therapist-patient sexual contact": California, Colorado, Florida, Georgia, Iowa, Maine, Minnesota, North Dakota, and Wisconsin. Of those states, seven (Colorado, Florida, Georgia, Maine, Minnesota, North Dakota, and Wisconsin) classify therapist/patient sexual contact as a felony. All but Iowa and Maine bar the use of "patient consent" as a defense by the therapist. And the statutes in California, Florida, Iowa, and Minnesota include as a criminal offense therapist/patient sexual contact that occurs after termination of the therapeutic relationship. In California, the law specifies that two years must elapse before such contact may legally occur.

If a therapist learns of sex between an adult client and a former therapist during the course of prior treatment, the therapist is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient.

“The course of a prior treatment” is defined as the period of time during which a patient first commences treatment for services that a psychotherapist is authorized to provide under his/her scope of practice, or that the psychotherapist represents to the patient as being within his/her scope of practice, until the psychotherapist-patient relationship is terminated.

There is no mandated reporting responsibility pertaining to sex between psychotherapists and patients. In fact, psychotherapists are not permitted to report this. It is protected, private information belonging to the patient, unless there is another obligation to report, such as in the case of sex with a minor.

The booklet itself begins with a message to consumers that stresses the importance of professionalism and the mandate for psychotherapists to avoid sexual contact with patients:

As a reader of “Professional Therapy Never Includes Sex,” you may be a California consumer concerned about the conduct of your therapist. You may be a licensed therapist, or training to become a therapist. In any case, it’s good to know more about the high standards of professional conduct expected – and required — in the therapy relationship. Consumers are looking for professionals they can trust. Therapists value the trust of their patients. When this mutual trust is violated by sexual exploitation, everyone loses. The patient loses an opportunity for improved health and becomes a victim. The therapist stops being a healer and becomes a victimizer. And the profession itself loses when the good reputation of the many is diminished by the illegal conduct of a few. The California Department of Consumer Affairs is dedicated to working with its professional licensing board partners to protect and educate consumers. If you are a victim of sexual abuse by a therapist, it’s important for you to report your experience to the board that licenses your therapist. This booklet offers guidance and resources for consumers. For more consumer guidelines and information, you may contact the appropriate licensing board or professional association, or contact the Department of Consumer Affairs at (800) 952-5210 or www.consumer.ca.gov.

California’s lawmakers, licensing boards, professional associations and ethical therapists want such inappropriate sexual behavior stopped. This booklet was developed to help patients who have been sexually exploited by their therapists. It outlines their rights and options for reporting what happened. It also defines therapist sexual exploitation, gives warning signs of unprofessional behavior, presents a “Patient Bill of Rights,” and answers some frequently asked questions.

The booklet points out that it is not just referring to overt sex, but also to more subtle sexual behavior, saying, “It also never includes verbal sexual advances or any other kind of sexual contact or behavior. Sexual contact of any kind between a therapist and a patient is unethical and illegal in the state of California. Additionally, with regard to former patients, sexual contact within two years after termination of therapy is also illegal and unethical.”

Sexual contact between a therapist and a patient can also be harmful to the patient. Harm may arise from the therapist’s exploitation of the patient to fulfill his or her own needs or desires, and from the therapist’s loss of the objectivity necessary for effective therapy. All therapists are trained and educated to know that this kind of behavior is inappropriate and can result in the revocation of their professional license… Many people who endure this kind of abusive behavior from therapists suffer harmful, long-lasting emotional and psychological effects. Family life and friendships are often disrupted, or sometimes ruined.

It deals with boundary issues, helping the reader understand how the dynamics of therapist authority or idealization, and patient need, can lead to boundary violations that may include sex, and loss of the investment that the patient has made in therapy:

Therapists are trusted and respected, and it is common for patients to admire and feel attracted to them. However, a therapist who accepts or encourages these normal feelings in a sexual way - or tells a patient that sexual involvement is part of therapy - is using the trusting therapy relationship to take advantage of the patient. And once sexual involvement begins, therapy for the patient ends. The original issues that brought the patient to therapy are postponed, neglected, and sometimes lost.

It addresses issues that may thwart recovery of self esteem and assertive action, by telling the reader who has had a sexual relationship with a prior psychotherapist not to be impeded by guilt:

Remember: It doesn’t matter if you, the patient, started or wanted the sexual involvement with the therapist. Therapists are responsible for keeping sexual intimacy out of the therapy relationship and are trained to know how to handle a patient’s sexual attractions and desires.

In an attempt to help such patients link symptoms with the experience, the booklet lists the following signs of a need to recover:

You may even have nightmares, obsessive thoughts,
depression, or suicidal or homicidal thoughts. You may feel
overwhelmed as you try to decide what to do or whom to tell.

An underlying current of the document is to encourage reporting, as in the text addressing the need to face the issue in the service of personal recovery:

It’s essential that you face what happened. This may be painful, but it is the first major step in healing and recovering from the experience. You may have positive and negative feelings at the same time, such as starting to feel personal control, being afraid of what may happen in the future, remembering the experience, and feeling relieved that the sexual relationship is over.

The second step in the healing process is to decide what YOU
want to do next. Try to be open-minded about your options.

There is a relatively small amount of text regarding issues of recovery, and this is primarily indicating the type and sources of help the individual may seek. In the section “Where to Start,” there are three steps. The first step is to “talk to someone who will understand what you’re going through.” The resources referred to later consist of “Sexual Assault/Crisis Centers,” therapy and support groups, but no specific contact information for resources, except for using a professional association for finding a therapist. The text also offers the possibility that the reader, “may wish simply to move on past this experience as quickly as possible and get on with your life. Remember — you have the right to decide what is best for you.”

The text from this point provides extensive instructions on reporting the sexual involvement in the section “Your Reporting Options,” and options for taking legal action against the therapist in the sections “More About Civil Action” and “More About Criminal Action.”

The booklet encourages quick action in reporting, saying, “All of these reporting options are affected by time limits, so you should consider reporting misconduct at the earliest appropropriate (sic) opportunity.”

Administrative Action — File a complaint with the therapist’s licensing board. (See “More About Administrative Action, page 13.)

Professional Association Action — File a complaint with the ethics committee of the therapist’s professional association. (See “More About Professional Association Action,” page 15.)

Civil Action — File a civil lawsuit. (See “More About Civil Action,” page 18.)

Criminal Action — File a complaint with local law enforcement. (See “More About Criminal Action, page 19.)

Pointing out the authority and responsibility of the professional boards to which a patient can make a complaint, the booklet states,

The purpose of these licensing boards is to protect the health, safety and welfare of consumers. Licensing boards have the power to discipline therapists by using the administrative law process. Depending on the violation, the board may revoke or suspend a license, and/or place a license on probation with terms and conditions the licensed professional must follow. When a license is revoked, the therapist cannot legally practice. In many cases, the California Business and Professions Code requires revocation of a therapist’s license or registration whenever sexual misconduct is admitted or proven.

Again stressing the urgency of reporting, the booklet offers specifics on the time limits pertaining to reporting:

It is best to report any case of therapist-patient sexual exploitation as soon as possible, since delays may restrict the disciplinary options available to the board. Time limits require a licensing board to initiate disciplinary action by filing an “accusation” against a licensed professional accused of sexual misconduct:

— within three years from the date the board discovered the
alleged sexual misconduct, or

That means an accusation of sexual misconduct against a therapist
can’t be filed more than 10 years after the alleged incident. For
complaints involving allegations other than sexual misconduct, the
licensing board must file an accusation within seven years from the
date of the alleged offense

The material describes the complaint process, and includes the steps typically taken by the board. It indicates what information should be provided, and that it can be provided online. It says that the board reviews the information and investigates the complaint in order to determine whether to initiate a disciplinary action.

Most cases, it states, are settled by a stipulated agreement, in which the therapist, “admits to the violation(s) and accepts the disciplinary action…” In this case the patient does not need to testify, and no hearing is held. If the therapist does not admit to any violations, there is a hearing presided over by an administrative law judge, and the patient must testify. Once the judge makes his or her decision, the board may choose to make its own decision. The process may take up to two years.

The booklet also offers the option of complaining to professional associations. It states that these associations may not prevent a therapist from practicing, but they may investigate and take an action such as removing the psychotherapist from their roles, resulting in other professionals being aware of the action. These associations have their own deadlines, and many will not consider a complaint more than a year old, according to the booklet.

The booklet warns patients of ways they may lose privacy, saying that the complaint hearings are open to the public, and that a lawsuit may result in media attention. It also points out that in lawsuits, “patients don’t always win.”

The attitudes of therapists with regard to sexual misconduct and boundary violations affect both their individual behavior and the prevention of sexual misconduct in the profession as a whole. Pope argues that three categories of "contributing factors" lead to the problem of sexual misconduct in the profession. Each of these factors are key elements in any effort to prevent therapist sexual misconduct, and must be taken into account in education and training programs.

"One part of the problem may be that therapists are unaware of the variety of ways in which sexual intimacy with a client can occur." According to Pope, therapists may assume that the dynamic that leads to such misconduct occurs in the context of the "scheming, malicious therapist" and "reluctant client" described above. Such assumptions, he argues, may be dangerously simplistic, and may leave a therapist "unprepared to recognize and handle safely and therapeutically a client who is experiencing an intense sexual transference or an attractive client who is expressing a need for nonerotic closeness."

With regard to this set of factors, Pope concludes that therapists must recognize – and accept – two crucial elements of the therapeutic relationship. First, "[i]t is crucial that therapists be aware of the diverse paths to intimacy." Second, "[i]n every instance and without exception, it is always the therapist's responsibility to ensure that sexual intimacies with a client do not occur."

"Another part of the problem seems to involve training programs, which spend relatively little time addressing issues of sexual contact with or even sexual attraction to clients." Pope blames this in part on the "sexualization of the student-teacher and student-supervisor relationships in training programs," which, he argues, "tends to prohibit open and honest discussion of the sexual feelings that are a normal part of many therapies."

And therapist sexual misconduct is not confined to patients. Studies dating back to the 1970s show that significant numbers of therapists engage in sexual contact with students or trainees. In 1979, a nationwide survey of graduate students in psychology showed that 10% had "engaged in sexual relationships with their teachers and clinical supervisors. One out of four recent female graduates had engaged in such sexual relationships. Thirteen percent of the educators engaged in relationships with their students and supervisees." Interestingly, however, only 2% of respondents "believed that such relationships could be beneficial to trainees and educators." Such data may indicate that, even where training includes discussion of the problem of therapist sexual misconduct, the example set by those doing the training may undermine the message.

A 1979 study by Pope, Levenson, and Schover also indicates that sexual contact between therapist and student may have what Pope calls a "'modeling effect' for later professional behavior": Under this theory, students who engage in sexual contact with educators are more likely to engage in such contacts with patients when they become therapists. While the sample of male students who engaged in sexual contact with educators was too small to be predictive, the sample of women who had been sexually involved with an educator was large enough to be measurable. Of women who had engaged in such contact as students, 23% reported that they had subsequently engaged in sexual contact with patients. Of women students who did not engage in such contact with educators, only 6% subsequently reported engaging in sexual contact with patients.

"Still another part of the problem has been the massive denial of this problem among many professionals." As noted above, early attempts to study the phenomenon of therapist sexual misconduct were met with what may be described at best as disinterest and distrust; in many instances, such efforts ended in deliberate stonewalling and attempts to suppress research and results.

"This couldn't happen to me" is how Norris, Gutheil, and Strasburger label the denial phenomenon in the context of therapist sexual misconduct. Pope argues that this "denial is complicated by the discomfort most therapists feel in a response to a very common phenomenon: sexual attraction to clients." Noting the results of studies cited above, he reports:

Research indicates that the vast majority (87%) of therapists experience attraction to some of their clients, [and] most (63%) feel guilty, anxious, or confused about the attraction. So troubling is the attraction that about 20% of therapists do not acknowledge it or discuss it with anyone. Thus, therapists may experience difficulty in responding sensitively, professionally, and therapeutically to their own feelings of attraction to clients and may resist making use of resources developed to help therapists who feel overwhelmed by such attraction and tempted to act it out with the client.

Experts vary with regard to the possibility of rehabilitation for therapist who engage in sexual misconduct. Schoener appears to believe that some offenders can be rehabilitated; Pope, on the other hand, appears to believe that rehabilitation is unlikely, at least in the vast majority of cases.

Schoener argues that "faulty assumptions" underlie the notion that therapists who engage in sexual misconduct cannot be rehabilitated. Among these, he lists the following:

Schoener concedes that "public safety" must play a role in decisions that concern "client welfare." He also admits that "[t]here are professionals who should not be practicing . . . and who are not candidates for rehabilitation with current methods. As a matter of public safety, they should be removed from the field." However, he insists that, at least with some offenders, professional discipline can lead to "successful rehabilitation."

Alternatively, Pope seems to view the concept of rehabilitation with general skepticism, pointing to underlying pathologies, high recidivism rates, and the lack of success of education and therapy in preventing therapist sexual misconduct. He refers to a high-profile case reported by Bates and Brodsky:

One psychologist gained publicity by reporting a "nationwide survey" based on the conceptualization that sexually abusive therapists were in fact "impaired professionals"; the survey findings, which received newspaper coverage, supported efforts to "rehabilitate" these professionals. The psychologist also made a presentation on the subject of rehabilitating perpetrators at an annual meeting of the APA. The general public and the professional community, however, were probably not aware that this psychologist had been engaging in therapist-patient sexual intimacies and, several years after the APA presentation, pleaded guilty to a sex abuse charge.

Not only have research on outcomes of treatment for therapists who sexually offend not been encouraging, but, as in the example above, therapists who sexually offend have been shown to keep their sexual activities with clients secret and free of complaints for extended periods of time.

The therapeutic relationship is a special one, characterized by exceptional vulnerability and trust. People may talk to their therapists about thoughts, feelings, events, and behaviors that they would never disclose to anyone else. Every state in the United States has recognized the special nature of the therapeutic relationship and the special responsibilities that therapists have in relation to their clients by requiring special training and licensure for therapists, and by recognizing a therapist-patient privilege which safeguards the privacy of what patients talk about to their therapist.

It is this vulnerability that makes therapist/patient sexual contact so uniquely harmful. Therapists ostensibly choose therapy as a profession for the purpose of helping people deal successfully with mental, psychological, and emotional difficulties; they thus have a special obligation not to engage in conduct that seems virtually guaranteed to increase those difficulties.

Moreover, simply from the standpoint of the therapist's own self-interest, avoiding therapist/patient sexual contact is the only reasonable course of action. Doing so avoids the possibility of numerous adverse consequences: professional sanctions, up to and including license revocation; civil litigation, including malpractice awards that can run to millions of dollars; and criminal penalties, which may include expensive fines, felony convictions, and even imprisonment.

A therapist who finds him- or herself in a situation that appears to have the potential to lead to therapist/patient sexual contact should take affirmative steps to prevent it, including additional education and training, consultation with other professionals, and even transfer of the patient to another therapist, if necessary. Taking such steps avoids potential harm to therapist and patient alike.

Sexual Misconduct By Professionals. National Board for Certification in Occupational Therapy Inc., September, 2003. Accessed January 14, 2005. <www.nbcot.org/webarticles/anmviewer.asp?a=65&z=13>
Exploitation and Inference: Mapping the Damage From Therapist-Patient Sexual Involvement, Martin H. Williams, Ph.D., Department of Psychiatry, Kaiser-Permanente Medical Center, Santa Clara, California. American Psychologist, 1992, 47 (3), 412-421. http://drmwilliams.com/SAdocs/exploit.html
Adverse Psychological Evaluations in Civil Suits Involving Sexual Misconduct by Professionals, Schoener, and Prevention and intervention in cases of professional misconduct: psychology lags behind. Minnesota Psychologist 1992; 41:3:9-10, in Ralph Underwager, Ph.D. and Hollida Wakefield, M.A, Copyright 1993 American Journal of Forensic Psychology, Volume 11, Issue 4. The Journal is a publication of the American College of Forensic Psychology, P .0. Box 5870, Balboa Island. California 92662.
436 S.W.2d 753 (Mo. 1968) in Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct With Patients, Linda Jorgenson and Pamela K. Sutherland. accessed 8/16/07, http://www.advocateweb.org/HOPE/litigation/liability.asp

<www.advocateweb.org>
B. Forer, personal communication, November 1984; see also Forer, B. (1980, February) in The therapeutic relationship: 1968, Paper presented at the annual meeting of the California State Psychological Association, Pasadena, in Therapist-Patient Sex as Sex Abuse: Six Scientific, Professional, and Practical Dilemmas in Addressing Victimization and Rehabilitation, Kenneth S. Pope
Sheldon H. Kardener, Marielle Fuller & Ivan N. Mensh, A Survey of Physicians' Attitudes & Practices Regarding Erotic and Nonerotic Contact with Patients AM. J. PSYCHIATRY 1070 (1973).
Gabbard, G. O., Sexual exploitation in professional relationships. Washington, DC: American Psychiatric Press, in Therapist-Patient Sex as Sex Abuse: Six Scientific, Professional, and Practical Dilemmas in Addressing Victimization and Rehabilitation, Kenneth S. Pope, 1989.
Campbell M. The oath: An investigation of the injunction prohibiting physician-patient sexual relations. Perspectives Bio Med 1989. Brodsky AM. Sex between patient and therapist: Psychology's data and response. In Gabbard GO (ed.), Sexual Exploitation in Professional Relationships. American Psychiatric Press, Washington DC, 1989.
Gary Richard Schoener, Sexual Exploitation: A Historical Overview, The Walk-in Counseling Center, Minneapolis (1998).
Id., citing Reiser, Dyck and Curran, quoting The Hippocratic Oath, W.H.S. Jones, trans., at 5 (1977).
Kenneth S. Pope, Sex Between Therapists and Clients, Encyclopedia of Women and Gender: Sex Similarities and Differences and the Impact of Society on Gender (Judith Worell, ed.) (Academic Press 2001).
Schoener, supra note 3.
Id.
Id.
Id.
Id.
See Gary Richard Schoener, Assessment & Rehabilitation of Psychotherapists Who Violate Boundaries With Clients, from a paper presented to the Norwegian Psychological Association (September 3-4, 1997) (available online at http://www.advocateweb.org/hope/rehabilitation.asp.)
See id.
See id.
See id.
See id., citing Gabbard, The Early History of Boundary Violations in Psychoanalysis, 43 J. Am. Psychoanalytic Assn. 1115-1136 (1995), and Gabbard and Lester, Boundaries and Boundary Violations in Psychoanalysis (Basic Books 1995).
See id., citing Mason, The Assault on Truth (Farrar, Straus & Giroux 1984), 159-60.
See id., citing Mason at 160.
See Schoener, supra note 3, citing Peter Gay, Freud: A Life for Our Times (W.W. Norton 1988), 396.
Id.
Schoener, supra note 3, citing William McGuire, Ed., The Freud/Jung Letters: The Correspondence Between Sigmund Freud and C.G. Jung (Harvard University Press 1988), 236.

Id., citing McGuire at 228.
Id, citing McGuire at 231.
Id.,citing McGuire at 236.
See Schoener, supra note 3, citing Linda Donn, Freud and Jung: Years of Friendship, Years of Loss (Collier Brooks 1990), 93.
Id.
Id., citing McGuire at 238.
Id., citing Aldo Carotenuto, A Secret Symmetry: Sabrina Spielrein Between Jung and Freud (Pantheon Books 1984), 38.
Id.
Id., see also Schoener, Bruno Bettelheim Revisited, Minn. Psychologist 22 (March 1992).
See id., citing Phyllis Grosskurth, The Secret Ring: Freud's Inner Circle and the Politics of Psychoanalysis (Addison-Wesley 1991), 56.
See id.
Id.
See id., citing J.L. McCartney, Overt Transference, 2 J. Sex Research 227-37 (1966).
See id.
See id.
See Schoener, supra note 11, citing Stepansky, Ed., The Memoirs of Margaret Mahler (Free Press 1988), 68-69.
Id.
See Schoener, supra note 11, citing W. Wolff, Ed.,Contemporary Psychotherapists Examine Themselves (1956), 87.
See id., citing Susan Quinn, A Mind of Her Own (Addison-Wesley 1988), 378.
See Schoener, supra note 3, citing B. Paris, Karen Horney: A Psychoanalyst's Search for Self Understanding (Yale University Press 1994), 142.
See id., citing Paris at 143.
See Schoener, supra note 11, citing Grosskurth (1986).
See id.
See id., citing F. Fromm-Reichmann, Reminiscences of Europe, in Psychoanalysis and Psychosis (A. Silver, Ed.) (International Universities Press 1989).
See, e.g., Kenneth S. Pope, Therapist-Patient Sex as Sex Abuse, from 21 Professional Psychology: Research and Practice 4, 227-39.
See id.
See id., citing M. Shepard, The Love Treatment: Sexual Intimacy Between Patients and Psychotherapists (Wyden 1971).
See id..
See id.
Id.
See id., citing C.C. Dahlberg, Sexual Contact Between Patient and Therapist, 5 Contemporary Psychoanalysis 107.
See id.
See id.
See id., citing J.J. Brownfain, The APA Professional Liability Insurance Program, 26 Am. Psychologist 651 (1971).
See id.
See id., citing S.H. Kardener, M. Fuller, and I.N. Mensch, A Survey of Physicians' Attitudes and Practices Regarding Erotic and Nonerotic Contact With Patients, 133 Am. J. Psychiatry 1324-25 (1973).
See id., citing J.C. Holroyd and A.M. Brodsky, Psychologists Attitudes and Practices Regarding Erotic and Nonerotic Physical Contact With Clients, 32 Am. Psychologist 843-49 (1977).
See id.
See id.
See id.
Pierre Assalian and Marc Ravart, Management of Professional Sexual Misconduct: Evaluation and Recommendations, 3 J. Sex Reprod. Med. at 89 (2003).
Id.
See id. at 91.
Id.
See id.
Id.
See id.
See id.
See id.
Id.
Id.
Id. at 91-92.
Id. at 92.
Id.
Id.
Id.
Id.
See Schoener, supra note 11, citing R.W. Medlicott, Erotic Professional Indiscretions, Actual or Assumed and Alleged, 2 Australian & New Zealand J. of Psychiatry 17-23 (1968).
See id., citing G. Gabbard, Sexual Misconduct, in 13 Rev. of Psychiatry 433-56 (1994); G. Gabbard, Psychotherapits Who Transgress Sexual Boundaries With Patients, in Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy (J. Gonsiorek, Ed.) (Sage Publications 1995), 133-44; G. Gabbard, Transference and Countertransference in the Psychotherapy of Therapists Charged With Sexual Misconduct, 25 Psychiatric Annals 100-05 (1995).
See id.
Id.
See Schoener, supra note 11, citing R. Irons, An Inpatient Assessment Model for Offenders, in Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy (J. Gonsiorek, Ed.) (Sage Publications 1995), 163-75.
Id.
Id.
Id.
Id.
Id.
Id.
See Schoener, supra note 11, citing R. Irons and J. Schneider, Sxual Addiciton: Significant Factor in Sexual Exploitation by Health Care Professionals and Clergy, 1 Sexual Addiction & Compulsivity 4-21 (1994).
See id.
See Schoener, supra note 11.
Id.
Id.
See generally John C. Gonsiorek, Assessment for Rehabilitation of Exploitative Health Care Professionals and Clergy, in John C. Gonsiorek, ed., Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy 145,147-154 (Sage Publications 1995), cited in Elizabeth F. Kuniholm and Kim Church, Psychotherapist Malpractice at 7, (Kuniholm Law Firm 2002) (adapted from ATLA: Litigating Tort Cases, Ch. 55 ("Sexual Abuse") (West and ATLA 2003)).
See Schoener, supra note 11.
Id.
Id.
Donna M. Norris, Thomas G. Gutheil, and Larry H. Strasburger, This Couldn't Happen to Me: Boundary Problems and Sexual Misconduct in the Psychotherapy Relationship, 54 Psychiatric Serv. 517-22 (April 2003).
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
Schoener, supra note 11.
Id.
See Kenneth S. Pope, How Clients are Harmed by Sexual Contact With Mental Health Professionals: The Syndrome and Its Prevalence, 67 J. Counseling Dev. 222, 223 (December 1988).
Id. at Table 2.
Id.
Id.
Id.
See id.
See id.
See id.
See id.
See id.
Id.
Id.at 222.
See id.
See Elizabeth F. Kuniholm and Kim Church, Psychotherapist Malpractice at 7-8, (Kuniholm Law Firm 2002) (adapted from ATLA Litigating Tort Cases, Ch. 55 ("Sexual Abuse") (West and ATLA 2003)), citing Robert Simon, Bad Men Do What Good Men Dream, (American Psychiatric Press 1996), 135-36, citing K.S. Pope & J.C. Bouhoutsos, Sexual Intimacy Between Therapists and Patients (Praeger 1986).
See Norris, et al., supra note 98.
See id.
See id.
See id.
See id.
See id.
Kuniholm and Church, supra note 94, at 2-3.
See Stephen B. Bisbing, Linda Mabus Jorgenson, and Pamela K. Sutherland, Sexual Abuse by Professionals: A Legal Guide, § 12-5 (c) (1995 & Cum. Supp. 2000), 470-80.
Robert Simon, Psychological Injury Caused by Boundary Violation Precursors to Therapist-Patient Sex, 21 Psychiatric Annals 614, 617 (1991).
Kuniholm and Church, supra note 94, at 5.
Kenneth S. Pope, How Clients are Harmed by Sexual Contact With Mental Health Professionals: The Syndrome and Its Prevalence, 67 J. Counseling Dev. 222, 223 (December 1988).
Id.
See Pope, Sexual Attraction to Clients: The Human Therapist and the (Sometimes) Inhuman Training System (available online at http://www.kspope.com/sexiss/research5.php), citingL. Durre Comparing Romantic and Therapeutic Relationships, in On Love and Loving: Psychological Perspectives on the Nature and Experience of Romantic Love (K.S. Pope, Ed.)(Jossey-Bass 1980), 243.
Id.
Id.
See id., citing J. Bouhoutsos, J. Holroyd, H. Lerman, B. Forer, and M. Greenberg, Sexual Intimacy Between Psychotherapists and Patients, 14 Prof. Psychology 185-96 (1983).
See id.
See id.
See id.
See id.
See id.
See Pope, supra note 5.

See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See Pope, supra note 135, citing L.E. Tower, Countertransference, 4 J. Am. Psychoanalytical Assn. 224-55 (1956).
See id., citing C. Thompson, Psychoanalysis Evolution and Development (Hermitage House 1950).
See id., citing R. Fine, Erotic Feelings in the Psychotherapeutic Relationship, 52 Psychoanalytic Rev. 30-37.
See id., citing S.I. Abramowitz, C.V. Abramowitz, H.B. Roback, R.T. Comey, and W. McKee, Sex-Role Related Countertransference in Psychotherapy, 33 Archives of General Psychiatry 71-73 (1976).
See id., citing L.R. Schover, Male and Female Therapists' Responses to Male and Female Client Sexual Material: An Analogue Study, 10 Archives of Sexual Behavior 477-92 (1981).
See id., citing H.R. Searles, Oedipal Love in the Countertransference, in Collected Papers on Schizophrenia and Related Subjects (International Universities Press 1965), 284-303.
See Pope, supra note 135.
See id.
Id.
See id.
Id.
Id.
Id.
Id.
Pope, supra note 133.
See, e.g., Daniel Goleman, "New Focus on Preventing Patient-Therapist Sex," The New York Times, Dec. 20, 1990, at B21.
See John D. Winer, "$600,000 – Psychologist-in-Training Sues Psychoanalyst for Negligence and Abuse," "Significant Cases," available online at http://www.johnwiner.com/significant.html.
Pope, supra note 45.
See id.
See id.
O. Brandt Caudill, Jr., Twelve Pitfalls for Psychotherapists, in "Legalities," Family Therapy News (October/November 2000), at 17.
See id.
See Pamela K. Sutherland, Sexual Abuse by Therapists, Physicians, Attorneys, and Other Professionals, (WWLIA 1996) (available online at http://www.advocateweb.org/hope/litigation/us-prosx.asp).
Schoener, supra note 11.
Id.
Id.
Id.
See generally, Jorgenson and Sutherland, supra note 214.
See id.
436 S.W.2d 753 (Mo. 1968).
See Jorgenson and Sutherland, supra note 214.
See id.
See id.
See id. (citing Zipkin, supra note 237, at 755-56).
See id.
Elizabeth F. Kuniholm and Kim Church, Psychotherapist Malpractice, adapted from "Sexual Abuse," ATLA: Litigating Tort Cases (West/ATLA 2003).
Zipkin, supra note 237, at 761.
See generally, "Significant Cases," Web site of John D. Winer, available online at http://www.johnwiner.com/significant.html.
See id. at "$500,000 – Woman's Psychological Condition Deteriorates as Result of Psychiatrist Malpractice and Abuse"
See id. at "$490,000 – Psychiatrist Addicts Patients to Tranquilizers and Begins Living With Patient and Her Family."
See Winer, supra note 245.
American Home Assurance Co. v. Stephens, (5th Cir. 1997).
See id.
See id.
See id.
See id.
See id.
See Jorgenson and Sutherland, supra note 214.
381 N.Y.S. 2d 587 (1976).
See Jorgenson and Sutherland, supra note 214.
See Roy, supra note 209.
See Jorgenson and Sutherland, supra note 214 (citing Zipkin, supra note 237, at 755-56).
243 Cal. Rptr. 807 (Cal. App. 1988).
Id. at 810.
770 P.2d 278 (Cal. 1989).
See id.
See generally, Black's Law Dictionary, Sixth Edition (West 1990).
934 F. Supp. 680 (E.D. Pa. 1996).
See id.
See Jorgenson and Sutherland, supra note 214.
See generally, Black's Law Dictionary, Sixth Edition (West 1990).
263 So.2d 256 (Fla. Dist. Ct. App. 1972).
See id.
698 S.W.2d 94 (Tex. 1985).
See id.
See Anclote Manor, supra note 269.
See Marlene F., supra note 262.
See Anclote Manor, supra note 269.
See Marlene F., supra note 262.
See Richard H., supra note 260.
300 S.E.2d 833 (N.C. Ct. App. 1983).
See id.
584 A.2d 69 (Md. 1991).
See id.
See Norton v. Macfarlane, 818 P.2d 8 (Utah 1991).
599 A.2d 1193 (Md. App. 1992).
See Jorgenson and Sutherland, supra note 214 (citing Homer, supra note 283).
See id.
See id.
See Jorgenson and Sutherland, supra note 214.
732 F.2d 366 (4th Cir. 1984).
See id.
See Jorgenson and Sutherland, supra note 214.
Restatement (Second) of Agency, § 228 (1958).
Id.
See Jorgenson and Sutherland, supra note 214.
329 N.W.2d 306 (Minn. 1982).
See Jorgenson and Sutherland, supra note 214.
See id.
See Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990).
Id.
Jorgenson and Sutherland, supra note 214.
547 N.E.2d 244 (Ind. 1989).
Id.
See Jorgenson and Sutherland, supra note 214.
732 F.2d 366 (4th Cir. 1986).
Jorgenson and Sutherland, supra note 214.
379 N.W.2d 189 (Minn. App. 1985).
Jorgenson and Sutherland, supra note 214.
520 N.E.2d 139 (Mass. 1988).
Jorgenson and Sutherland, supra note 214.
See Jorgenson and Sutherland, supra note 214.
California Business and Professional Code 728, and the Civil Code 43.93
California Business and Professional Code 728 (a)
B&P Code, Section 728 (c)(4)
Professional Therapy Never Includes Sex, State and Consumer Services Agency, California Department of Consumer Affairs, 2004, http://www.psychboard.ca.gov/pubs/proftherapy.pdf.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
See Kenneth S. Pope, How Clients are Harmed by Sexual Contact With Mental Health Professionals: The Syndrome and Its Prevalence, 67 J. Counseling & Dev. 222 (Dec. 1988).
Id.
See id.
Id.
Id.
Id. (emphasis added).
Id.
Id.
See Pope, supra note 133.
Id.
See id.
Id.
See id.
See id.
Pope, supra note 310.
Donna M. Norris, Thomas G. Gutheil, and Larry H. Strasburger, This Couldn't Happen to Me: Boundary Problems and Sexual Misconduct in the Psychotherapy Relationship, 54 Psychiatric Serv. 517-22 (April 2003).
Pope, supra note 310.
Id. at 222-23.
See Schoener, supra note 11.
See id.
See id.
Id.
See Pope, supra note 45.
Id.
Pope, supra note 5.