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Litigating Sexual
Misconduct Cases -- A Plaintiffs' Attorney's Perspective
II. Overview of this Area of the Law
A. Generally: Common Law Causes of Action
There were few allegations of sexual misconduct brought against professionals prior to
the last half of the twentieth century. [34]
Cases that did exist involved allegations of rape or battery by the physician.[35]
Non-forced sexual relations between health care providers and patients were not
substantively addressed until the advent of psychotherapy. Freud wrote extensively on
patients' "transference-love" toward their analysts and cautioned against
analysts' sexual involvement with patients.[36]
Transference has come to refer to the phenomena whereby a patient "transfers"
intense emotions and feelings, properly belonging to the patient's past, onto the
therapist. The patient may believe that he or she is "in love" with the
therapist.[37]
The first recorded case alleging therapist-patient sexual contact based its theory of
liability on "transference." In the 1968 case of Zipkin v. Freeman,[38]
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 reciprocated and took Mrs. Zipkin on social
outings, overnight trips and nude swimming parties. He engaged in sexual relations with
Mrs. Zipkin and convinced her to 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.[39]
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."[40]
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."[41]
Since Zipkin v. Freeman,[42]
most jurisdictions have recognized a common law cause of action against therapists for
sexual misconduct with patients under one or more of the following theories.
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Exploitation
