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Litigating Sexual
Misconduct Cases -- A Plaintiffs' Attorney's Perspective
III. Endnotes
1. See AMER. PSYCHIATRIC ASS'N, PRINCIPLES OF MEDICAL ETHICS
& ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY (1985); AMER. PSYCHOANALYTIC ASS'N,
PRINCIPLES OF ETHICS FOR PSYCHOANALYSIS & PROVISIONS FOR IMPLEMENTATION OF THE
PRINCIPLES OF PSYCHOANALYSIS (1983); AMER. PSYCHOLOGICAL ASS'N, ETHICAL PRINCIPLES OF
PSYCHOLOGISTS (1980); NAT'L ASS'N OF SOCIAL WORKERS, INC., CODE OF ETHICS OF THE NAT'L
ASS'N OF SOCIAL WORKERS (1980). See also generally, STEVEN BISBING, LINDA JORGENSON
& PAMELA SUTHERLAND, SEXUAL MISCONDUCT BY PROFESSIONALS: A LEGAL GUIDE (1995)
[hereinafter, BISBING, JORGENSON & SUTHERLAND].
Sex between physician and patient has been prohibited since the time of the Hippocratic
Oath. According to scholars on the subject, however, the proscription contained in the
Oath was formulated out of concern for physicians' already poor reputations in the
community at that time. Prohibition of sexual contact with their patients was instituted
to improve their image with the public. Maura Campbell, The Oath: An Investigation of
the Injunction Prohibiting Physician-Patient Sexual Relations, 32 PERSP. BIO. &
MED. 300 (1989).
2. See generally, BISBING, JORGENSON & SUTHERLAND, supra
note 1, at 427-445. See also, Linda Jorgenson & Pamela Sutherland, Fiduciary
Theory Applied to Personal Dealings: Attorney-Client Sexual Contact, 45 ARK. L. REV.
459 (1992). In 1992, the American Bar Association adopted a non-binding ethical opinion
advising against sexual contact with clients. Amer. Bar Assoc. Standing Comm. on Ethics
and Prof. Responsibility, Formal Op. No. 92-364 (1992).
In 1989, the American Medical Association adopted Opinion 8.14, declaring it unethical
for physicians to engage in sexual relations with patients during the course of the
professional relationship. COUNCIL OF ETHICAL & JUDICIAL AFFAIRS OF THE AMERICAN
MEDICAL ASSOCIATION, CURRENT OPINIONS OF THE COUNCIL OF ETHICAL & JUDICIAL AFFAIRS
1989 (1989). This position was expanded upon in a 1991 article by the Council on Ethical
and Judicial Affairs of the American Medical Association, which cited all previous
studies. Council of Ethical & Judicial Affairs of the American Medical Association, Sexual
Misconduct in the Practice of Medicine, 266 J.A.M.A. 2741 (1991).
3. For a complete review of the literature on the subject, see
GARY R. SCHOENER ET AL., PSYCHOTHERAPISTS' SEXUAL INVOLVEMENT WITH CLIENTS: INTERVENTION
& PREVENTION (1989); see also, Kenneth Pope, Therapist-Patient Sexual
Involvement: A Review of the Literature, 10 CLIN. PSYCHOL. REV. 477 (1990).
4. See generally, RESTATEMENT (SECOND) OF TORTS [[section]]
299A (1956). See, e.g., Weaver v. Union Carbide Corp., 378 S.E.2d 105, 106-07
(W.Va. 1989) ("sexual intimacy with a patient...is a form of malpractice permitting
recovery of damages for emotional distress and other harm resulting from malpractice. The
basis of the malpractice is the trust relationship that arises from such counseling
services, which are designed to improve the mental and emotional well-being of the
patient."); ROBERT SIMON, CLINICAL PSYCHIATRY & THE LAW 2-13 (1987). The
liability of the therapist to a patient may extend even after therapy has ended. For a
discussion of post-termination liability, see generally, Paul Appelbaum & Linda
Jorgenson, Psychotherapist-Patient Sexual Contact After Termination of Treatment: An
Analysis & A Proposal, 148 AM. J. PSYCHIATRY 1466 (1991).
5. See, e.g., Simmons v. United States, 805 F.2d 1363 (9th
Cir. 1986); Zipkin v. Freeman, 436 S.W.2d 753 (Mo. 1968). Transference has been described
as "the term used by psychiatrists and psychologists to denote a patient's emotional
reaction to a therapist and is generally applied to the projection of feelings, thoughts
and wishes onto the analyst, who has come to represent some person from the patient's
past." Simmons, 805 F.2d at 1364 (citations omitted). Positive transference
may be experienced by the patient in the form of feelings of erotic attraction toward the
therapist. See generally, Sigmund Freud, Further Recommendations in the
Technique of Psycho-Analysis: Observations on Transference-Love, in 2 COLLECTED PAPERS
377 (J. Riviere trans. 1959).
Transference is not limited to psychotherapeutic relationships. Transference may arise
in any professional relationship in which there is a degree of trust, confidence and
good-faith placed in the person in the position of relative authority. For example, the
relationship that may develop in a law office between a male associate and an older
partner can be similar to that between a son and a father. Other examples of professional
relationships in which the trusting party may experience transference toward the fiduciary
include relationships with physicians, chiropractors and teachers. See generally,
ANDREW WATSON, PSYCHIATRY FOR LAWYERS 4-9 (1968); MICHAEL PECK, THE MEANING OF
PSYCHOANALYSIS 93-94 (1950).
6. L.L. v. Medical Protective Co., 362 N.W.2d 174 (Wis. 1984).
7. Zipkin v. Freeman, 436 S.W.2d 753, 761 (Mo. 1968).
8. 300 N.W.2d 627 (Mich.App. 1980).
9. Id. at 628-29.
10. Sheldon H. Kardener, Marielle Fuller & Ivan N. Mensh, A
Survey of Physicians' Attitudes & Practices Regarding Erotic and Nonerotic Contact
with Patients, 130 AM. J. PSYCHIATRY 1077 (1973).
11. Id. at 1079 (18% of obstetricians/gynecologists
responding self-reported engaging in erotic contact with patients; 13% of general
practitioners; 12% of internists; and 10% of both surgeons and psychiatrists).
12. J.C. Holroyd & Annette M. Brodsky, Psychologists'
Attitudes and Practices Regarding Erotic and Nonerotic Physical Contact with Patients,
32 AM. PSYCHOLOGIST 843 (1977).
13. Nanette Gartrell, Judith Herman, Sylvia Olarte, M. Feldstein
& R. Localio, Psychiatrist-Patient Sexual Contact: Results of a National Survey, I:
Prevalence, 143 AM. J. PSYCHIATRY 1126 (1986). See also, Judith Herman, Nanette
Gartrell, Sylvia Olarte, M. Feldstein & R. Localio, Psychiatrist-Patient Sexual
Contact: Results of a National Survey, II: Psychiatrists' Attitudes, 144 AM. J.
PSYCHIATRY 164 (1987).
14. Kenneth S. Pope, Patricia Keith-Speigel & B.G. Tabachnick, Sexual
Attraction to Clients: The Human Therapist and (Sometimes) Inhuman Training System, 41
AM. PSYCHOLOGIST 147 (1986). See also, SCHOENER, supra note 3.
15. Shirley Feldman-Summers & Gwendolyn Jones, Psychological
Impacts of Sexual Contact Between Therapists or Other Health Care Practitioners and Their
Clients, 52 J. COUNSELING & CLIN. PSYCHOLOGY 1054 (1984).
16. Feldman-Summers, supra note 15, at 1058.
17. Id. at 1060.
18. Id. at 1060-61.
19. Nanette Gartrell, Nancy Milliken, William H. Goodson, Sue
Thiemann & Bernard Lo, Physician-Patient Sexual Contact: Prevalence & Problems,
157 WESTERN J. MED. 139 (1992).
20. Nanette Gartrell et al., Psychiatrist-Patient Sexual Contact:
Results of a Nat'l Survey, I. Prevalence, 143 AM. J. PSYCHIATRY 1126 (1986).
21. See, e.g., Kenneth Pope, Therapist-Patient Sex
Syndrome: A Guide for Attorneys, in SEXUAL EXPLOITATION IN PROFESSIONAL RELATIONSHIPS
45 (Glen O. Gabbard ed. 1989). See also, THE STATE TASK FORCE ON SEXUAL
EXPLOITATION BY COUNSELORS & THERAPISTS, IT'S NEVER O.K.: A HANDBOOK FOR PROFESSIONALS
ON SEXUAL EXPLOITATION BY COUNSELORS & THERAPISTS 35 (Barbara Sanderson ed. 1989);
SCHOENER, supra note 3, at 145.
22. Nanette Gartrell et al., Reporting Practices of Psychiatrists
Who Knew of Sexual Misconduct by Colleagues, 57 AM. J. ORTHOPSYCHIATRY 287, 293
(1987).
23. See SCHOENER, supra note 3, at 75.
24. AMER. PSYCHIATRIC ASS'N, THE PRINCIPLES OF MEDICAL ETHICS WITH
ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY, [[section]] 2.1 p. 17A-7a (1985).
25. St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698, 701
(Minn. 1990) (footnote omitted).
26. See generally, SCHOENER, supra note 3, at 95.
27. Id.
28. Id.
29. Id.
30. Id.
31. Holroyd & Brodsky, Psychologist's Attitudes &
Practices Regarding Erotic & Non-erotic Physical Contact with Their Patients, 134
AM. J. PSYCHIATRY 848-49 (1977) (eighty percent of those reporting any sexual involvement
with patients were sexually intimate with more than one patient).
32. See generally, SEXUAL EXPLOITATION IN PROFESSIONAL
RELATIONSHIPS 83-87 (Glen O. Gabbard ed. 1989).
33. Id.
34. See generally, W.R. Habeeb, Annotation: Intercourse
Accomplished Under Pretext of Medical Treatment as Rape, 70 A.L.R. 824 (1960).
35. Id.
36. See, Sigmund Freud, Further Recommendations in the
Technique of Psycho-Analysis: Observations on Transference-Love, in 2 COLLECTED PAPERS
377 (J. Riviere trans. 1959).
37. See generally, M. TANSEY & W. BURKE, UNDERSTANDING
COUNTERTRANSFERENCE: FROM PROJECTIVE IDENTIFICATION TO EMPATHY (1989).
38. 436 S.W.2d 753 (Mo. 1968).
39. Id.
40. Id. at 755-56.
41. Id. at 761.
42. 436 S.W.2d 753 (Mo. 1968).
43. See generally, RESTATEMENT (SECOND) OF TORTS [[section]]
299A (1956). See also, J. SMITH, MEDICAL MALPRACTICE: PSYCHIATRIC CARE 5-8 (1986).
44. 436 S.W.2d 753, 761 (Mo. 1968).
45. See generally, BISBING, JORGENSON & SUTHERLAND, supra
note 1, at 121-131.
46. See, e.g., Robert Simon, Psychological Injury Caused
by Boundary Violation Precursors to Therapist-Patient Sex, 21 PSYCHIATRIC ANNALS 614
(1991).
47. See generally, id.
48. See generally, Thomas G. Gutheil & Glen O. Gabbard, The
Concept of Boundaries in Clinical Practice: Theoretical and Risk-Management Dimensions,
150 AM. J. PSYCHIATRY 188 (1993); Linda Jorgenson & Pamela Sutherland, Alternative
Theories of Psychotherapist Liability: What's Sex Got To Do With It?, TRIAL 22 (May
1993).
49. See generally, Jerry Adler & Debra Rosenberg, Dr.
Bean and Her Little Boy, NEWSWEEK, April 13, 1992, at 56.
50. See generally, Riley v. Presnell, 565 N.E.2d 780 (Mass.
1991).
51. See generally, Ralph Slovenko, Malpractice in
Psychiatry and Related Fields, 9 THE J. OF PSYCHIATRY & LAW 5 (1981).
52. See generally, Cranford Ins. Co. v. Allwest Ins. Co., 645
F. Supp. 1440 (N.D. Cal. 1986). See also, GARY SCHOENER ET AL., PSYCHOTHERAPISTS'
SEXUAL INVOLVEMENT WITH CLIENTS: INTERVENTION AND PREVENTION (1989) (listing potential
causes of action); Linda Jorgenson, Steven Bisbing & Pamela Sutherland, Therapist-Patient
Sexual Exploitation and Insurance Liability, 27 TORT & INS. L. J. 595, 609-12
(1992) (detailed listing of acts constituting negligent psychotherapy and cases finding
therefor).
53. See generally, BISBING, JORGENSON & SUTHERLAND, supra
note 1, at 1-45; Robert Flannigan, The Fiduciary Obligation, 9 OXFORD J. LEGAL
STUD. 285 (1989).
54. See BLACK'S LAW DICTIONARY 564 (5th ed. 1979).
55. See, e.g., Horak v. Biris, 474 N.E.2d 13, 17 (Ill. App. 2
Dist. 1985). See also, Riley v. Presnell, 565 N.E.2d 780, 788 (Mass. 1991) (there
are fiduciary aspects of the psychiatrist-patient relationship that serve to toll the
statute of limitations under the doctrine of fraudulent concealment, which analysis is
substantially the same as the analysis under the discovery rule).
56. 366 N.Y.S.2d 297 (Civ. Ct. 1975).
57. 366 N.Y.S.2d 297, 300.
58. This section is derived from BISBING, JORGENSON &
SUTHERLAND, Criminal Statutes, 833-855.
59. Following the passage of Wisconsin's misdemeanor statute,
Minnesota made a most in-depth study of this area. See TASK FORCE ON SEXUAL
EXPLOITATION BY COUNSELORS AND THERAPISTS, MINN. DEP'T OF CORRECTIONS, REPORT TO THE MINN.
LEGISLATURE (1985) [hereinafter MINNESOTA, REPORT OF TASK FORCE].
California and Massachusetts have also initiated task forces. See CAL. SENATE
RULES COMM., REPORT OF THE SENATE TASK FORCE ON PSYCHOTHERAPIST AND PATIENTS SEXUAL
RELATIONS (1987) [hereinafter CALIFORNIA, REPORT OF TASK FORCE]; ACT ESTABLISHING HOUSE
COMM. ON SEXUAL MISCONDUCT BY PHYSICIANS, THERAPISTS AND OTHER HEALTH CARE PROFESSIONALS,
MASS. H.R. No. 5437, 2d Sess., 176 Gen. Court (1989).
60. See WIS. STAT. [[section]] 940.22 (2)(1983)(exploitation
was originally classified as a misdemeanor, but was by subsequent amendment upgraded to a
felony).
61. See 1985 MINN. LAWS ch. 297; 1988 COLO. SESS. LAWS L. 88,
p.726, [[section]] 1; 1987 N.D. LAWS ch. 169, [[section]] 1; WIS. STAT. ANN. [[section]]
940.22(2) (West Supp. 1989).
62. 1989 CAL. STAT. ch. 795 [[section]] 1.
63. 1989 ME. LAWS ch. 401, pt. A, [[section]] 4.
64. FLA. STAT. ANN. [[section]] 491.0112 (1990); GA. CODE ANN.
[[section]]16-6-5.1 (1990); IOWA CODE [[section]] 709.15 (1992); N.H. REV. STAT. ANN.
[[section]] 632-A:2 (I)(g) (1992); S.D. CODIFIED LAWS ANN. [[section]] 22-22-28 (1993);
N.M. STAT. ANN. [[section]] 30-9-10 (1993); CONN. PUBLIC ACT No. 93-340 (June 2, 1993)
(Substitute House Bill 6437); ARIZ. REV. STAT. [[section]] 13-1418 (1994); TEX. PENAL CODE
[[section]] 21.011(b)(9) (S.B. 151995) (June, 1995).
65. Massachusetts has a House Committee on physician-therapist
sexual misconduct that was established in 1989. The Committee drafted three pieces of
legislation--an injunctive relief bill, a reporting bill, and a criminal bill. The
injunctive relief passed in 1995 and the other two bills are currently in committee.
66. See ARIZ. REV. STAT. [[section]] 13-1418(1994) (Arizona
criminalizes sexual intercourse as a class 6 felony, but does not criminalize sexual
contact short of intercourse); COLO. REV. STAT. ANN. [[section]] 18-3-405.5(1)-(2)
(Colorado classifies sexual penetration or intrusion as aggravated sexual assault
constituting a felony, and sexual contact as sexual assault, constituting a misdemeanor);
CONN. PUBLIC ACT NO. 93-340, SUBST. HOUSE BILL NO. 6437 (1993) (Connecticut classifies
sexual intercourse as sexual assault in the second degree, a felony, and classifies sexual
contact as sexual assault in the fourth degree, a misdemeanor); MINN. STAT. ANN.
[[section]] 609.344(1)(h)-(j) (West 1987 & Supp. 1990) (Criminal sexual conduct that
involves penetration is a felony in the third degree in Minnesota. Sexual contact, which
does not involve penetration, is a lesser offense and constitutes a felony in the fourth
degree); N.H. REV. STAT. ANN. [[section]][[section]] 632-A:2, 632-A:4 (1992) (New
Hampshire classifies sexual penetration as aggravated felonious sexual assault and sexual
contact as sexual assault); N.M. STAT. ANN. [[section]][[section]] 30-9-11, 30-912 (New
Mexico distinguishes criminal sexual penetration from criminal sexual contact, the former
a felony in the first to fourth degrees, the latter a fourth degree felony and a
misdemeanor if committed without force or coercion); S.D. CODIFIED LAWS ANN.
[[section]][[section]] 22-22-28, 22-22-29 (1993) (South Dakota classifies sexual contact
as class 5 felony and sexual penetration as class 4 felony). But see CAL. BUS.
& PROF. CODE ANN. [[section]] 729 (1993) (California punishes both contact and
penetration as misdemeanors if first offense with imprisonment and/or fines if second
offense); FLA. STAT. ANN. [[section]]491.0112(1) (1990) (Florida classifies all sexual
contact as sexual misconduct, punishing a first offense as a felony in the third degree
and second offenses, along with first offenses involving therapeutic deception, as
felonies in the second degree); GA. CODE ANN. [[section]] 16-6-5.1(b), (c)(4) (1990)
(Georgia classifies all sexual contact, whether or not a first offense, as a felony
punishable by not less than one nor more than three years imprisonment); IOWA CODE ANN.
[[section]] 709.15(2)-(4) (1992) (Iowa classifies sexual contact with a patient as a class
D felony, sexual contact with an emotionally dependent patient or former patient as an
aggravated misdemeanor, and sexual contact with a patient or former patient within one
year of termination as a serious misdemeanor); ME. REV. STAT. ANN. [[section]][[section]]
251, 253 (1992) (Maine classifies all sexual acts by psychotherapists on patients as class
C crimes, punishable by a maximum of more than three and less than five years
imprisonment); N.D. CRIM. CODE [[section]] 12.1-20-06.1 (1991) (North Dakota classifies
all sexual contact as a class C felony); TEX. PENAL CODE [[section]] 21.011(f) (1995)
(Texas classifies all prohibited sexual contact as a second degree felony); WIS. STAT.
ANN. [[section]] 940.22(2) (1993) (Wisconsin punishes sexual contact as Class D felony).
67. Minnesota published an extensive Task Force Report on
recommendations for actions in cases involving sexual exploitation by psychotherapists. See
MINNESOTA, REPORT OF TASK FORCE, supra note 59. This and other Task Force
publications have been widely distributed. See supra note 59. Minnesota has also
acquired comprehensive data on the victims of psychotherapist sexual abuse, as the home of
the Walk-In Counseling Center, which has seen more than 3,000 such victims.
68. See e.g., MICHIGAN, SEXUAL EXPLOITATION BY THERAPISTS, supra
note 59, at 6 ("[a]s a result of the serious issues raised by the Minnesota Task
Force report and the increasing occurrence of therapist sexual misconduct allegations, the
existence and adequacy of available remedies under Michigan law were examined");
Letter from Senator Diane E. Watson, Cal. 28th District, regarding the history and origin
of the California Task Force ("[i]n 1983, I introduced to the Legislature a bill
criminalizing sexual involvement of psychotherapists with their patients...[t]he measure
was based on Wisconsin and Minnesota statutes and equated this offense with rape").
Gary Schoener, executive director of the Minnesota Walk-In Counseling Clinic, and
Barbara Sanderson, coordinator of the Minnesota Task Force, gave a two-day presentation in
Boston on Sept. 24-25, 1989 to the Massachusetts Special House Committee on Physician
& Therapist Sexual Misconduct. Two bills resulting from the Massachusetts Task Force
are pending before the legislature and one was passed in 1995.
69. For a thorough discussion of these statutes, see BISBING,
JORGENSON & SUTHERLAND, supra note 1, at 833-856.
70. Criminal law is, and must be, specifically defined by statute
and must meet strict tests for constitutionality. See People v. West, 724 P.2d 623,
626 (Colo. 1986). Civil law, however, may be based on either statutes or the common law.
The common law represents precedents set by previous cases that have actually gone to
trial and been decided by judges or juries.
71. Because the consequence of conviction under a criminal statute
is often the loss of personal liberty, as opposed to or in addition to loss of property or
economic penalties imposed in a civil trial, a broader array of constitutional protections
is available to the criminal defendant.
72. For a discussion, see State v. Jenkins, 326 N.W.2d 67
(N.D. 1982).
73. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
[[section]] at 269 (5th ed. 1984) [hereinafter PROSSER & KEETON].
74. The focus of civil statutes addressing sexual exploitation has
been on psychotherapist sexual misconduct.
75. MINN. STAT. ANN. [[section]] 148A.02 (West 1989); WIS. STAT.
ANN. [[section]] 895.70(2) (West Supp. 1989).
76. MINN. STAT. ANN. [[section]] 148A.02 (West 1989); TEX. HEALTH
& SAFETY CODE ANN. [[section]] 81.002 (West 1993); WIS. STAT. ANN. [[section]]
895.70(2) (West Supp. 1989).
77. See COLO. REV. STAT. [[section]] 13-80-103.7 (1993); IOWA
CODE [[section]] 614.1 (West 1992); MINN. STAT. ANN. [[section]] 148A.06 (West 1986); TEX.
CIV. PRAC. & REM. CODE ANN. [[section]] 81.009 (West 1993).
78. See, e.g., Mass. Gen. Laws ch. 93A (Witherspoon v.
Goldberg, No. 87-4208 (Norfolk Sup. Ct., June 14, 1990) (Judge Hurd) (psychiatrist-patient
sexual misconduct case; psychiatrist's treatment of patient found by trial judge not to
"constitute an commercial transaction. I conclude that such treatment is a private
matter between a psychiatrist and patient"); Palermo v. Brennan, No. 92-1083-E
(Suffolk Sup. Ct., May 17, 1993) (Judge Doerfer) (psychiatrist-patient sexual misconduct
case; psychiatrist found by trial judge to be engaged in trade or commerce); Bartels v.
Leighton, No. 91-233 (Hampden Sup. Ct., July 6, 1994) (Judge Carhart) (unlicensed
hypnotherapist-patient sexual misconduct case; court entered summary judgment for
plaintiff on liability based on defendant's failure to respond to requests for admissions;
trial judge awarded double damages to plaintiff under 93A and judge ordered the following:
I further find that Leighton's past conduct poses a potential threat to consumers who
might avail themselves of his services. I therefore enjoin Leighton from engaging in the
practice of hypnotherapy in this Commonwealth until such time as he has presented this
Court with a plan of practice that will insure adequate supervision of the rendering of
hypnotherapy services.
Court declined to award plaintiff's counsel attorney fees based upon a contingent fee
agreement.).
79. See generally, BISBING, JORGENSON & SUTHERLAND, supra
note 1, at 173-79.
80. See generally, Linda Jorgenson, Steven Bisbing &
Pamela Sutherland, Therapist-Patient Sexual Exploitation and Insurance Liability,
27 TORT & INS. L. J. 595 (1992); Pamela K. Sutherland, Insurance Coverage In
Massachusetts for Therapist-Patient Sexual Misconduct, MATA JOURNAL 42 (July 1995).
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