Sexual Abuse by
Therapists,
Physicians, Attorneys, and Other Professionals
This article focuses on the clinical and legal reasons underlying the
prohibitions on therapist-patient sexual contact and some of the legal remedies available.
By Pamela
K. Sutherland, Attorney At Law
125 High Street, High Street Tower,
Suite 2601, Boston, MA 02110, 617/478-4944, fax: 617/951-0048 fax, e-mail: pams@tiac.net.
This article has been reproduced on www.advocateweb.org with permission from the author.
Contents
Background
Sexual contact of any kind between psychotherapist and patient is universally regarded
as unethical, is considered in every jurisdiction to constitute malpractice, and in some
states is a criminal offense. Sexual contact between other professionals--physicians,
lawyers, clergy, and professors--and their patients/clients/students is starting to be
considered unethical, at a minimum, and may be grounds for a lawsuit. Despite these
proscriptions, sexual misconduct by professionals continues. One self-reporting survey
reported that "[a]s high as 13.7 percent of male [therapists responding] and 3.1
percent of female respondents have reported engaging in some form of erotic contact with
at least one patient." One survey of practicing therapists found that 70 percent were
aware of at least one patient who had been sexually involved with a previous therapist.
Patients are harmed by sexual contact with their therapist. Studies of practicing
therapists estimate that, in their observations, between eighty-seven and ninety percent
of the patients who have had sexual contact with their therapist are damaged. Injuries
include sexual dysfunction, anxiety disorders, psychiatric hospitalizations, increased
risk of suicide, depression, dissociative behavior, internalized feelings of guilt, shame,
anger, confusion, hatred, inability to trust and feelings of worthlessness. Other effects
of the sexual contact included anger, shame, humiliation, depression, and anxiety. In
addition, for many victims, realizing that they are harmed and that the therapist was the
cause of their harm takes years. Only four to eight percent of victims ever report the
sexual contact.
Injuries caused patients by providers' sexual contact do not differ significantly
between therapists and other health care providers: the damage resulting from either
professional's breach of trust manifests itself in similar ways. In a more recent study,
"two thirds of uninvolved physicians whose patients reported sexual contact with
other physicians thought that such contact was 'always harmful.'"
Why Are There Prohibitions on Professional-Client Sexual Contact?
There are special characteristics of professional-client relationships which place the
professional in a position of greater power and authority than the client and, in essence,
render it "unfair" for the professional to gain any benefit at the client's
expense. Legally, many professionals--therapists, physicians, attorneys, professors--are
said to stand in a "fiduciary" relationship with respect to their patients,
clients, or students. "Fiduciary" is a legal term describing the relationship
that exists when one party reposes trust and confidence in the other, more powerful party.
In a fiduciary relationship, the more powerful party has a duty to act only in the
trusting party's best interest. Sexual contact may harm patients, clients, and students
and therefore is a violation of the fiduciary's duty. Because of the fiduciary nature of
professional-client relationships, professional-client sexual contact is prohibited.
In therapist-patient dyads in particular, specific attributes of the relationship may
lead to a sexualization of the relationship. One of these attributes is transference.
"Transference" describes the phenomenon in which the patient ascribes both
positive and negative feelings the patient has about others in the patient's past and
present life to the therapist. One court noted the difficulty this presents for the
treating therapist:
"The therapist must encourage the patient to express her transferred feelings,
while rejecting her erotic advances; at the same time, he must explain to the patient that
her feelings are not really for him, but that she is using him in a symbolic role to react
to some other significant person in her life. In short, the therapist must both encourage
transference and discourage certain aspects of it. This may be difficult to do and
presents an occupational risk. The therapeutic alliance in this situation gives rise to a
duty, imposed by professional standards of care as well as ethical standards of behavior,
to refrain from a personal relationship with the patient, whether during or outside
therapy sessions. This is because the personal relationship infects the therapy treatment,
rendering it ineffective and even harmful."
The intimacy present in the therapeutic relationship also lends itself to sexual acting
out. The American Psychiatric Association has warned: "[T]he necessary intensity of
the therapeutic relationship may tend to activate sexual and other needs and fantasies on
the part of both patient and therapist, while weakening the objectivity necessary for
control."
The likelihood of sexual contact, the harm caused patients, and the fiduciary nature of
the therapist-patient relationship lead to the prohibitions on sex between therapist and
patient. Other professions, such as medicine and law, note many similarities between
physician-patient/attorney-client sex and therapist-patient sex, and have adopted ethical
rules prohibiting such contact. Courts are following this trend and holding physicians and
lawyers liable for harm caused by their sexual contact with patients.
Legal Remedies Available
The legal remedies discussed in this article will be classified into three categories:
civil lawsuits, criminal complaints, and licensing board complaints. Licensing boards vary
greatly from state to state and from profession to profession, and will not be discussed
in this article. The differences between the three options, however, are important to
understand. Briefly, in civil lawsuit, the best outcome for the patient is an award of
money damages from the court; the patient retains his or her own lawyer (Patient v.
Therapist), and the burden of proving that more likely than not that the events happened
is on the patient. In criminal proceedings, the best possible outcome for the patient is a
criminal sanction (jail time), however, some jurisdictions have established victim
compensation funds; the patient does not need to retain a lawyer because, if the State
chooses to prosecute the case, it is the State's case against the therapist (State v.
Therapist) in which the State has the higher burden of proving beyond a reasonable doubt
that the therapist acted as the patient claimed he or she did. Finally, licensing board
actions can result in the therapist losing his or her license to practice--which is not
the same thing as the therapist never being able to practice again. Licensing board
actions are similar to criminal proceedings in that the licensing authority is responsible
for proving the case (Board of Registration in Medicine v. Therapist), however, the burden
of proof generally is the lower civil standard (more likely than not).
A. Civil Lawsuit
Most civil lawsuits brought by patients harmed by their therapist's sexual exploitation
allege a cause of action for malpractice. The malpractice complained of in most cases is
the therapist's negligent mishandling of the patient's transference and the therapist's
corresponding counter-transference.
The first recorded case alleging therapist-patient sexual contact based its theory of
liability on "transference." In the 1968 case of Zipkin v. Freeman, Mrs.
Zipkin sought psychotherapeutic counseling from Dr. Freeman. Over the course of the
therapy, Mrs. Zipkin experienced strong positive transference toward Dr. Freeman and
"fell in love" with him. Dr. Freeman, over time, began to take Mrs. Zipkin on
social outings, overnight trips and swimming parties in which many of the participants
(other patients of the doctor) disrobed before swimming. As time went on, Dr. Freeman
engaged in sexual relations with Mrs. Zipkin and later, convinced her to engage in
outrageous behavior: purchase a farm for him and work on it as a manual laborer, leave her
husband, and then steal her husband's suits for Dr. Freeman to wear.
Mrs. Zipkin eventually sued Dr. Freeman for psychological damages caused by his
negligent behavior. She alleged that as a result of Dr. Freeman's treatment, she 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 court held that Dr. Freeman had negligently mishandled Mrs.
Zipkin's transference. The court stated that such negligence was analogous to any other
medical negligence: "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."
The Zipkin court found that the psychiatrist, Dr. Freeman, had a duty to act in
his patient's best interest. Dr. Freeman had mishandled Mrs. Zipkin's transference which
constituted psychiatric negligence or malpractice. A court following Zipkin
stated"
"A sexual relationship between therapist and patient cannot be viewed separately
from the therapeutic relationship that has developed between them. The transference
phenomenon makes it impossible that the patient will have the same emotional response to
sexual contact with the therapist that he or she would have to sexual contact with other
persons."
Later courts have concurred: "We see no reason for distinguishing between this
type of malpractice (mishandling of transference by a psychotherapist) and others, such as
improper administration of a drug or a defective operation (in) each situation, the
essence of the claim is the doctor's departure from proper standards of medical
practice."
Commentators have noted that engaging in sexual contact with a patient is not the only
way of mishandling transference. For example, therapists frequently engage in
"boundary violations," actions that violate the boundaries that properly exist
between therapist and patient. Sexual contact is a boundary violation, as is taking one's
patient on social outings or swimming parties as Mrs. Zipkin's therapist did. Another form
of boundary violation is dual relationships, in which the therapist is a therapist for the
patient as well as employer/professor/landlord/or other relationship, are unethical
because of the unfair advantages the psychotherapist has over his patient due to the
therapeutic relationship.
Psychiatrist Robert Simon, among others, has detailed the various psychological
injuries caused by boundary violations, and includes:
"...psychological injury [caused] by [the interference] with professional
judgment, which leads to failure to properly diagnose and treat the patient. Boundary
violations also cause harm by creating confusion in the patient in the context of
psychotherapy, which is already complicated and confusing for the patient."
Therapists may also deviate from standards of care in ways other than mishandling
transference. Improper regression techniques, such as those alleged in the recent
Bean-Bayog case, also constitute negligence. Other acts of negligence may include a
therapist's improper use of hypnosis, improper use of drugs or alcohol with a patient,
failure to appropriately refer, and wrongful termination or abandonment of patients. In
one Wisconsin case, L.L. v. Medical Protective Co., 122 Wis.2d 455, 362 N.W. 2d
174, 178 (1984), the therapist was negligent in his "failure to properly analyze and
predict the effects of his acts on L.L.'s behavior or [that the therapist] recklessly
acted without regard to their effect," "(the therapist) detrimentally influenced
L.L.'s behavior (particularly as to personal relationships)," "failed to
prevent, ameliorate or resolve L.L.'s emotional disorders, particularly as concerns
personal relationships," and "worsened the precise emotional disorders which
L.L. retained (the therapist) to treat and created new traumas stemming directly from his
acts."
In addition, five states have enacted specific statutes creating a cause of action for
therapist-patient sex. Minnesota and Wisconsin enacted the first of these statutes in
1986. California followed suit in 1987, Illinois in 1989, and Texas in 1993. Other states
have amended their civil statutes of limitations to address problems specific to this
class of plaintiffs. These amendments allow victims of sexual exploitation, with some
restrictions, to file suit outside the normal malpractice limitation period. Consumer
protection statutes are also used to hold professionals liable for sexual exploitation. In
Massachusetts, for example, there has been at least one case in which the unlicensed
hypnotherapist was barred under the consumer protection statute from practicing therapy
until he had submitted to court-approved rehabilitation. Attempts are also made to hold
abusive professionals liable under RICO and civil rights statutes.
B. Criminal Complaints
Beginning in 1983, legislators in several states undertook an examination of sexual
abuse by psychotherapists and other professionals to determine whether criminal sanctions
were warranted. The first state to enact legislation criminalizing psychotherapist-patient
sexual exploitation was Wisconsin. The first felony statute took effect in Minnesota,
followed by Wisconsin, North Dakota, Colorado, California, and Maine. Florida, Georgia,
Iowa, New Hampshire, South Dakota, New Mexico, Connecticut, Arizona, and Texas passed
comparable legislation, with other states considering similar bills.
The exact penalties imposed by the statutes differ from state to state. Seven of the
fifteen states that criminalize sexual contact between therapist and patient distinguish
between sexual contact and penetration, with the latter offense typically classified as a
felony rather than a misdemeanor.
The Minnesota statute is most widely known, influencing other states that have either
proposed or enacted criminal laws on this subject. In nearly all of the states with
criminal psychotherapist exploitation statutes, the crime is classified as a felony.
Likewise, eleven states have defined the prohibited behavior in such a way as to cover
sexual contact short of intercourse.
Twelve states offer protection against exploitative unlicensed psychotherapists,
filling a void that other legal remedies cannot. Most of the states cover sexual contact
during the existence of the psychotherapist-patient relationship, regardless of the
location where the exploitation occurs. Additionally, six states, one unconditionally,
offer protection to former patients. Perhaps most significantly, with the exception of
Maine, the statutes completely eliminate consent as a defense.
The current controversy over criminal (and civil) statutes barring therapist-patient
sex is not over whether sexual abuse should be tolerated in any form; rather, many experts
and victim advocates fear that criminalizing therapist-patient sex will deprive patients
of their ability to obtain money from the therapist's malpractice insurance carrier in a
malpractice case. In addition, the most recent reports of the efficacy of criminal
statutes reveals that the cases are sporadically pursued.
Conclusion
Sex between professional and client occurs with frequency, and almost always harms the
client. Therapists, physicians, and attorneys are fiduciaries for their patients and
clients, and this role prevents them from engaging in any activity that is not in the
client's best interest. The law recognizes this. Patients or clients harmed by sexual
exploitation may seek redress in civil suits for money damages, criminal sanctions, and
licensing board actions. Presently, the issues hotly debated among attorneys involved in
litigating sexual misconduct suits include issues over the time period within which the
patient or client may file suit and whether the professional's malpractice insurance
provides coverage for the misconduct.
This article was reproduced without the 55 endnotes
that accompanied the original print article. For a hard-copy of this article, complete
with endnotes, please contact Ms. Sutherland directly at
pams@tiac.net.
© 1996 Pamela K. Sutherland and the WWLIA.
(Reproduced here with permission from the author.) The information provided in this
document does not represent legal advice. If and when you face a specific
legal situation, you should conduct independent inquiries with legal professionals to
determine what your legal rights may be.
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Disclaimer
Exploitation
