Tuesday, February 04, 2014

Should it be a Crime for a Therapist to Have Sex with a Patient?

Currently, there is a bill before our state legislature [video testimony] that would make it a crime for a therapist to have sexual contact with a patient.  I wondered what our readers think of the idea of criminalizing sexual contact between a therapist and a consenting adult patient.

  • As it stands now, we all agree that it is unethical for a therapist to have sexual contact with a patient.  Therapists are licensed to practice by professional boards (medical, social work, nursing, psychology), and all of these Boards handle complaints about sexual contact.  They are difficult cases, because often the cases are one person's word against another's in a setting where there are no witnesses and no "proof."  The sanctions include the loss of professional license, either permanently or temporarily, sometimes requirements for counseling and/or supervision, and a record of disciplinary action in a professional newsletter and details of the proceedings on the internet.  The process includes a hearing, and the standard to sanction a therapist is lower than the standard of guilt for a crime.  And finally, therapists are sanctioned for behaviors that are not generally considered "crimes," including any type of physical contact inappropriate to the therapist-patient relationship, even if the patient has been the one who requests the contact.  So a therapist can be sanctioned for letting a patient sit in their lap or hold them if the patient insists this is what they really need, and the psychiatrist can permanently lose their license if a patient seduces them -- and we all agree that this is how it should be, the therapist is the one who is supposed to hold the boundaries. The ethics of the situation are dictated as such because the therapist-patient relationship involves an imbalance of power. 
  • There have been references to patient-therapist contact as "sexual assault."  Any type of forced sexual contact is a crime.  The new law would extend the issue of criminalization would include contact with to competent, consenting adults.  (I don't know the legal code, but I do assume it is already a crime to have sex with a compromised patient-- one who is psychotic, delirious or demented, just as it illegal to have sex with a "consenting" adult who is compromised at a frat party).
  • Obviously, sexual contact between an adult therapist and a minor is already a crime.
  • A patient who feels injured by a sexual relationship with a therapist can also file a civil malpractice suit against the therapist. 
Here are my thoughts, and then I'd like to hear yours:
  • Using patients for sexual gratification is absolutely unethical.  To deem such behavior with a competent, consenting adult to be a crime seems to me to say that the patient is not capable of any role in making the decision.  It feels like it infantilizes the patient and I wonder what else this means that psychiatric patients are incapable of deciding?  
  • Do we extend this to other situations where there is an imbalance of power-- so does it become a crime, punishable by jail time, to have sex with an employee ?  Or an adult student?   What about a patient who is not in therapy? (It's unethical and a cause for Medical Board investigation for any doctor to have sex with any patient).  What if a surgeon has sex with a patient he knows has a psychiatric disorder?  Should that be a crime, rather than an ethical violation?
  • It's a tougher standard to put someone in jail then it is to remove a professional license.  In settings where "proof" may be difficult, especially since patients often come forward years later, will therapists be found "innocent" (because the evidence is not strong enough for criminal guilt), only to go unsanctioned? 
  • The patient needs to testify in these hearings and such testimony in a closed hearing before a professional board may be easier for patients than hearings in an open court with an aggressive cross examination.  Are there patients who would file a complaint with the board (this can be done on-line) who would not come forward if it entailed a police investigation and all the scrutiny that entails?  Again, might unethical therapists go without censure?  Will the police simply shrug, say there's no evidence if the event happened years before with no witnesses, and not prosecute?
What do you think? I understand that some states already criminalize sex with therapists.  How is that going?  How do these states divide what is matter for the police from what is a matter for their professional boards?