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Litigating Sexual
Misconduct Cases -- A Plaintiffs' Attorney's Perspective
B. Other Legal Options
1. Criminal Statutes [58]
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.[59] The first state to enact
legislation criminalizing psychotherapist-patient sexual exploitation was Wisconsin.[60] The first felony statute took effect in Minnesota,
followed by Wisconsin, North Dakota, Colorado,[61]
California,[62] and Maine.[63] Florida, Georgia, Iowa, New Hampshire, South
Dakota, New Mexico, Connecticut, Arizona, and Texas passed comparable legislation,[64] with other states considering similar bills.[65]
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.[66]
The Minnesota statute is most widely known,[67]
influencing other states that have either proposed or enacted criminal laws on this
subject.[68] 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.[69]
2. Civil Statutes
Causes of action for injuries suffered at the hands of negligent and abusive
professionals most often arise under the civil law. Civil law offers greater flexibility
than its criminal counterpart by proscribing a wider range of behaviors.[70] In the criminal system, statutes define crimes with
great specificity.[71] A state prosecutor must prove
each element of an offense beyond a reasonable doubt.[72]
Civil actions, on the other hand, can be defined either by statute or the common law. The
plaintiff's burden of proof is less stringent, usually requiring proof by a preponderance
of the evidence.[73]
In addition to remedies at common law, five states have created a specific statutory
cause of action for sexual exploitation by therapists.[74]
Minnesota and Wisconsin enacted the first of these statutes in 1986.[75] California followed suit in 1987, Illinois in 1989,
and Texas in 1993.[76]
Other states have chosen to respond to lawsuits against abusive therapists by amending
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.[77] Consumer protection statutes are also used to hold
professionals liable for sexual exploitation.[78]
Attempts are also made to hold abusive professionals liable under RICO and civil rights
statutes.[79]
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Disclaimer
Exploitation
