A male physical therapist places a hand on a female patient's breast during treatment.

A dentist hugs and kisses a patient on the lips as she leaves his office following treatment.

A psychologist tells his patient that she must become more comfortable with her body and her sexuality and suggests that she masturbate on his office couch while he observes.

A psychiatrist "falls in love" with a war veteran she is treating for post-traumatic stress disorder and has a sexual relationship with him.

A gynecologist examines a patient and discusses her sexual history. She later agrees to his request for a date and then a sexual relationship. The sexual relationship continues while she remains his patient.

These brief vignettes are all based on actual occurrences in the State of Maryland over the last few years. Such "boundary violations," as they are often called, can have severely damaging effects on the patients involved. At the very least, inappropriate sexual contact can confuse the patient as to what the respective roles of provider and patient are. More typically, exploited clients experience feelings of betrayal of trust, depression, loss of primary relationships, and loss of self-esteem. At worst, such boundary violations have even resulted in patient suicide--including at least one in the State of Maryland. Crossing a sexual boundary violates a sacred privilege granted to licensed professionals by their profession and by the State. In exercising that privilege, professionals may at times appropriately touch their patients, as in a health examination or treatment, or they may encourage clients to disclose personal and sensitive information. Such "clinical intimacies" are allowed solely to improve the welfare of the patient. When such a privilege is violated, it can have devastating consequences.

NATURE AND EXTENT OF THE PROBLEM

Over the last five years, 872 cases were referred to the Office of the Attorney General by the licensing boards for prosecution. Of those, 104 or approximately 12% were sex-related

and came from half of the licensing boards, including chiropractic, dentistry, medicine, nursing, optometry, physical therapy, psychology, and social work. Nationwide, studies show that anywhere from 5% to more than 10% of licensed psychotherapists have admitted to involvements with at least one patient over the course of their career and that 9% of nonpsychiatrist physicians admitted to at least one sexual relationship with a patient (Gartrell, et al., 1992).

However, it has also been found that only a minority of cases are actually reported. There are a number of good reasons that patients do not report sexual interactions with their health care providers, but one of the major reasons is that they often do not believe that their complaints will be taken seriously by those who must hear them. In fact, over the years, the professions as a whole have not always responded to this problem in a particularly constructive way. It is rarely, if ever, discussed in the training and supervision of students; liability insurance companies often do not cover sexual exploitation except in a minimal way, and the boards and committees that have considered these cases have a long history of being less than firm in their responses.

Fortunately, some things have begun to change. Ethical standards have been tightened up, not only in the mental health professions but also in other health care professions. The biggest incentive for change has come from consumer advocates. Their efforts, often undertaken in collaboration with an increasingly supportive professional community, have led to the development of support groups, consumer education initiatives, and laws that make it easier to adjudicate criminal or civil cases.

This Task Force resulted from a collaborative effort on the part of consumer advocates and concerned professionals, and the report includes a number of recommendations designed to address the problem of sexual exploitation in the State of Maryland. The following sections outline the basis for the importance of professional-client boundaries, the variability in boundary characteristics in different professional settings, legal methods for addressing complaints of sexual misconduct, and aspects that remain to be addressed.

In the following discussion, the health professional (provider) will often be referred to with a male pronoun, with the patient, client, or victim being referred to with a female pronoun. Although sexual boundary violations occur in all four gender combinations, they involve male provider and female client almost 90% of the time.

Need for Boundaries

Feldman-Summers (1989) defines a fiduciary relationship as "a special relationship in which one person accepts the trust and confidence of another to act in the latter's best interest" (p. 193). "In such a relationship," write Jorgenson and Sutherland (1992), "the parties do not deal on equal terms. The fiduciary must act with the utmost good faith and solely for the benefit of the dependent party" (p. 485). The client becomes dependent on the trustworthiness of the fiduciary and becomes vulnerable to him in the sense that she is less likely to question what he does.

This need of the client to trust the professional puts the fiduciary in a position of power, and along with this power must go the obligation to control the boundaries of the relationship. Because of his power and the client's vulnerability, the client cannot be considered capable of consenting in a fully informed way to a sexual relationship proposed by the fiduciary. Nor can she be held responsible for a sexual relationship that she initiates, or for the fact that she permits a relationship to continue (Peterson, 1992; Rutter, 1989).

Feldman-Summers (1989) continues:

There is no doubt that physicians, psychiatrists, mental health counselors, and attorneys are 'fiduciaries.' It may be argued that other professionals, such as teachers, should be included under the heading of 'fiduciaries.' That is, it may be argued that students--even college students--often place trust and confidence in their teachers in a manner similar to that observed in, say, the therapist-client relationship, especially when the teacher is sought out for individual guidance and assistance.  (p. 193)

Rutter (1989) takes the position that a

forbidden zone always exists in the relationship between doctor and patient, therapist and client, clergyman and congregant, lawyer and client, teacher and student. All of these professions carry a special trust not to abuse the seen or unseen dependent elements that inevitably develop. (p. 25)

Because of the greater power of the professional, the client is unable to give truly informed consent, and it is thus the responsibility of the person in the more powerful position to control the necessary boundary between the two parties. In fact, an incest model is often used to describe the sexual relationship between provider and client (Luepker, 1989).

In an article outlining the characteristics of a helping relationship, Rogers (1958) wrote about the importance of warmth, caring, liking, and interest, all of which reflect a degree of closeness to clients. However, he also discussed the needs for separateness and for not being compromised in the helping role by the client's helplessness, dependency, depression, or love.

Kopp (1976) wrote of the need to have "gurus" in our lives to guide us at critical times. However, he states emphatically that "the teaching mission of the guru is to free his followers from him" (p. 19). "There are no mothers or fathers for grown-ups," he says, "only sisters and brothers. We must each give up the master without giving up the search" (p. 188). Clearly then, prolonging the dependency of the client tends to work against the very intent of the relationship--that is, to enhance the ability of the client to function independently of the professional.

Definitions of Sexual Misconduct

Existing laws and professional codes of ethics in Maryland and other states contain a range of definitions of "sexual misconduct." Some laws specifically define the prohibited conduct, e.g., "sexual intercourse" or "fellatio." Other laws broadly forbid touching a person's "intimate parts" and include requests for such contact. The reason for these differences in definition is due in part to legal requirements. In the criminal area, the United States Constitution requires clear notice of prohibited conduct, which necessitates specific definition of sexual conduct in criminal laws. In contrast, the same legal need for specificity does not exist in the licensing arena because the ultimate penalty is loss of license, not loss of liberty.

The context within which sexual misconduct is defined is important. Thus, this report contains different definitions of sexual misconduct appropriate to the setting in which the terms are used.

Variability Among Professions and Settings

Although all of the health professions involve fiduciary relationships, there are clear differences in the types of boundaries needed among the various professions and in various professional settings. For example, there are more boundary violations in the psychotherapy community, at least to the extent that clients express concern about them. The psychotherapeutic relationship is at greater risk for boundary violations because of the isolation from others, the length and intensity of the relationship, and the psychological vulnerability of the client (Edelwich & Brodsky, 1991; Luepker, 1989; Pope, 1994). Such relationships are also more likely to include elements of what is called "transference," a phenomenon in which the therapist takes on a symbolic importance to the patient as a parental figure. This symbolic importance may be especially striking among clergy who are serving a counseling role, as they are likely to be associated with the deity who they are seen to represent.

Because of the greater vulnerability of a psychotherapy client, the harm resulting from a sexual violation by a mental health professional is likely to be greater than damage by other professionals. Such clients are more likely to have been sexually abused or otherwise victimized in the past, and a violation of trust by a therapist can thus leave the client confused about the boundaries of the relationship, lacking trust in any therapist, isolated, depressed, and perhaps even suicidal.

This is not to say that relationships outside the mental health setting cannot include transferential elements that may place the patient in a similar state of vulnerability. For example, patients may have long-term dependent relationships with primary care physicians, gynecologists, chiropractors, or physical therapists. Therefore, expectations of professional behavior may depend somewhat on the nature of an individual provider-client relationship.

Because of the variability in professional settings and the relative impact on patients, the Task Force has found it useful to divide sexual offenses by professionals into three categories. The first two vignettes provided at the beginning of this chapter are examples of sexual contact in the context of examination or treatment or "non-bona-fide medical treatment."

• A male physical therapist places a hand on a female patient's breast during treatment.
• A dentist hugs and kisses a patient on the lips as she leaves his office following treatment.

The third vignette illustrates what the Task Force has called "therapeutic deception." In this example, the provider presents a sexual act as having therapeutic benefit for the patient, but, in fact, the act primarily serves his own benefit.

• A psychologist tells his patient that she must become more comfortable with her body and her sexuality and suggests that she masturbate on his office couch while he observes.

The last two vignettes are representative of "sexually exploitative relationships," which may occur either inside or outside of the site of professional practice and which may also develop after a formal professional relationship has been terminated.

Variability Among Offenders

Even in similar professional-client situations, there may be a wide range of offender characteristics. Some offenders can be classified as having narcissistic or sociopathic personality disorders and are engaged in what amounts to a ruthless predation of a variety of vulnerable women. Others may be experiencing a recent loss in their own lives or are depressed for some other reason and have gotten caught up in something that they may almost immediately regret. Methods for addressing this problem need to take this variability into account, for example, in determining whether an offender can be rehabilitated.

Post-Termination Involvement

Another important question is whether sexual interaction is permissible after the professional relationship has ended. There are some who would say, "once a patient, always a patient," and others who would say that once formal sessions are terminated, a fully consensual relationship is possible. One reality that those who deal with these cases see all too frequently is the situation where psychotherapy is terminated with the obvious purpose of engaging in a sexual relationship and without referral to a subsequent therapist. In these cases, the sexual interaction usually begins within a very few days of termination, and this is perhaps the most pragmatic justification for some sort of waiting period, at least for the mental health professions.

Any health professional should consider that there may be a continuing period of dependency after a formal relationship has ended and that even should this not be the case, there may be a need for a patient to return for further assistance at a later date. Current ethical standards now include waiting periods of at least two years in the mental health professions before a therapist is free to begin a relationship with a former client. The American Medical Association suggests that post-termination waiting periods are sometimes advisable even for non-psychiatrists (Council on Ethical and Judicial Affairs, 1991).

ADDRESSING THE ISSUES

The following is a brief outline of specific issues addressed by the Task Force. Each succeeding chapter includes more background and documentation as well as a detailed description of the Task Force's recommendations.

Professional and Public Education

It is clear that both the public and the professions are insufficiently informed about the problem of health professional-client sexual exploitation. The topic is rarely covered adequately in the training of health professionals, and knowledge about professional-client boundaries typically is not expected for licensure (Pope et al., 1986). Members of the public often have difficulty finding either information or individuals who can teach them about this issue in a balanced, knowledgeable way.

Simply including didactic material on the issue in the training of health practitioners may not be sufficient to impart understanding. As in many value-laden areas of professional education, it is helpful for students to discuss cases and the kinds of dilemmas they may face even as student clinicians. Even the nature of factual material imparted can be more or less effective. It is probably more effective to give students a sense of the clinical and interpersonal dynamics of professional-client relationships than simply to teach the rules about professional-client boundaries (Plaut & Ginter, 1995).

With regard to public education, it is important not only to provide factual material about resources and options but also to ensure that such material is made available at critical times and by appropriate agencies and individuals.

Institutional Guidelines

Increasingly, health professionals practice in groups rather than in isolation. This has long been true of those practicing in hospitals, religious institutions, and group practices, such as health maintenance organizations. Practice in the institutional setting raises the question of the extent to which the institution is liable for the professional behavior of its members. This underscores the need to take responsibility for setting appropriate standards, discussing them openly, and taking appropriate measures when alleged offenses occur. Similar measures have recently been taken by many institutions with regard to the problem of sexual harassment, and this may provide a useful model for addressing the problem of sexual exploitation.

Rehabilitation and Recovery

Because there are different types of offenders and offenses, disciplinary actions vary according to the specific circumstances surrounding each instance of exploitation. Although stern measures such as license revocation are sometimes called for, there are times when corrective measures can enable a provider to return to practice with confidence that a repeat offense will not occur. The key to effective rehabilitation is ensuring that confidence. Psychiatric and psychological evaluation must be done by individuals who are not likely to be biased and who understand the issue, and the same is true for those who serve as therapists or as clinical supervisors for offenders. Remedial education must be undertaken with some assurance that relevant issues are covered and that the offender understands them once the process is completed (Plaut, 1995). The public will have greater confidence in the use of such measures by licensing boards if these practices are reviewed and made sufficiently effective.

Effective victim recovery similarly depends on the availability of trained, sensitive professionals as well as well-coordinated support networks. Those subjected to sexual exploitation tend to feel isolated and are often revictimized by professionals who do not understand their need for support and the encouragement to make carefully considered decisions about their future (Apfel & Simon, 1985). Mechanisms need to be developed to help ensure that information, therapy, and emotional support are more easily available.

Avenues for Redress

Once an alleged offense does occur, what recourse does the client have? The range of choices is often misunderstood, even by many attorneys, partly because people tend to think so quickly of civil action in our society today. In fact, a civil lawsuit is usually the only way the client herself can recover any personal money damages. There are a few possible disadvantages of a civil lawsuit, including the fact that proceedings are public, which the client may not want. In addition, statutes of limitations have tended to be rather short, given the fact that it often takes a victim some time before she is ready to disclose a sexual involvement with a provider. In addition, the issue of consent must typically be argued in each case, and plaintiffs are often asked to disclose facts about their sexual history. Finally, a civil lawsuit cannot result in either a rehabilitative program for an offender or an action against his license.

Complaints brought to licensing boards have the advantage of including the possibility of suspension or revocation of a license as well as structured programs for rehabilitation. In addition, licensing laws typically include no statute of limitations, they offer protection from civil liability to any party acting in good faith, and the client's confidentiality is maintained in public reports of any proceedings. However, as in civil cases, issues of consent and patient sexual history may be raised, and financial remuneration, even to cover costs of therapy for the victim, are usually not possible. Finally, consumers often complain that licensing boards are not sympathetic to their situation, are not well trained in the dynamics of sexual misconduct, do not communicate effectively, and often do not offer even a face-to-face interview.

Criminalization of sexual exploitation has been enacted in a number of states, at least for mental health professionals. Criminalization has sometimes been seen as a way to underscore the seriousness of such offenses and provide a further deterrent, while gaining a measure of control over psychotherapists who are practicing legally but who are not answerable to a licensing board (Jorgenson et al., 1991).

There are times when a victim may not want to take legal action, and these wishes need to be respected (Ameringer & Plaut, 1993). People who have been sexually exploited by health professionals should have access to factual information about this issue as well as resources for psychological support. Also, professionals who may counsel people who have been sexually exploited need to be aware themselves of such resources so that they can effectively advise their clients. Although a small number of states have enacted mandatory reporting, opponents of such measures are concerned about the violation of the privacy and confidentiality of victims.

DIFFICULTY DISCUSSING SEXUAL ISSUES

In many ways, sexuality and intimacy are still relatively closed issues in our society, even between committed partners. Having sexual feelings toward a health provider or toward a client is a normal human phenomenon. However, people often do not know what to do with such feelings. Shame or guilt associated with sexual feelings may make it more difficult to discuss them openly in the educational setting, to consult with a friend or colleague when they occur, or to disclose a possibly exploitative act that has transpired. The first priority must be to make the issue of health professional-client boundaries an open one, so that it can be discussed among professionals, in health care and religious institutions, and by the public.

This Task Force represents an affirmation by the General Assembly that the time for openness has come in the State of Maryland. This report reviews the research, discusses the findings, and proposes the Task Force's recommendations for action.

REFERENCES

Ameringer, C. F., & Plaut, S. M. (1993). Advising patient-victims of sexual misconduct by mental health professionals. Maryland Bar Journal, 26, 42-44.

Apfel, R. J., & Simon, B. (1985). Patient-therapist sexual contact. II: Problems of subsequent psychotherapy. Psychotherapy and Psychosomatics, 43, 63-68.

Council on Ethical and Judicial Affairs, American Medical Association (1991). Sexual misconduct in the practice of medicine. Journal of the American Medical Association, 266, 2741-2745.

Edelwich, J., & Brodsky, A. (1991). Sexual dilemmas for the helping professional (Revised and expanded edition). New York: Brunner/Mazel.

Feldman-Summers, S. (1989). Sexual contact in fiduciary relationships. In G. O. Gabbard (Ed.), Sexual exploitation in professional relationships (pp. 193-209). Washington, DC: American Psychiatric Press.

Gartrell, N. K., Milliken, N., Goodson, W. H., III, Thiemann, S., & Lo, B. (1992). Physician-patient sexual contact: Prevalence and problems. The Western Journal of Medicine, 157, 139-143.

Jorgenson, L., Randles, R., & Strasburger, L. (1991). The furor over psychotherapist-patient sexual contact: New solutions to an old problem. William and Mary Law Review, 32, 645-732.

Jorgenson, L. M., & Sutherland, P. K. (1992). Fiduciary theory applied to personal dealings: Attorney-client sexual contact. Arkansas Law Review, 45, 459-503.

Kopp, S. B. (1976). If you meet the Buddha on the road, kill him! New York: Bantam.

Luepker, E. T. (1989). Sexual exploitation of clients by therapists: Parallels with parent-child incest. In G. R. Schoener, J. H. Milgrom, J. C. Gonsiorek, E. T. Luepker, & R. M. Conroe (Eds.), Psychotherapists' sexual involvement with clients: intervention and prevention (pp. 73-79). Minneapolis, MN: Walk-In Counseling Center.

Peterson, M. R. (1992). At personal risk: Boundary violations in professional relationships. New York: W.W. Norton & Co.

Plaut, S. M. (1995). Educational rehabilitation for boundary violations. Maryland BPQA Newsletter, 3(2), 1-2.

Plaut, S. M., & Ginter, H. B. (1995). Sexual boundaries between health professionals and clients: A blueprint for education. SIECUS Report, 23(5), 3-5.

Pope, K. S. (1994). Sexual involvement with therapists: Patient assessment, subsequent therapy, and forensics. Washington, DC: American Psychological Association.

Pope, K. S., Keith-Spiegel, P., & Tabachnick, B. G. (1986). Sexual attraction to clients: The human therapist and the (sometimes) inhuman training system. American Psychologist, 41, 147-158.

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Rutter, P. (1989). Sex in the forbidden zone. New York: Fawcett Crest.