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?


42 comments:

PsychPractice said...

It's an interesting question, that of "consent" in a therapeutic relationship. While it's clearly a goal of therapy to foster independence and the ability to own ones decisions in our patients, I think there's a difference in fostering that independence in the patient's "real" life, and in the therapeutic setting. And I'm restricting my ideas to patients who are not psychotic or disorganized or severely ill, just basically neurotic. The paradoxical part of encouraging intrapsychic growth is allowing the patient to regress in the clinical setting, in order to access problems that are limiting the patient's life. And this regression changes the therapist/patient relationship. I'm not sure what that does to consent for sexual encounters.
A legal adult who has drunken sex at a frat party can at least be held responsible for choosing to get drunk at a frat party, arguably a poor if common decision. But a patient's choice to pursue therapy, and regress in the therapeutic setting, is usually not poor judgement. It may be a lot to ask inebriated 18 year olds not to take advantage of other inebriated 18 year olds. But it's not too much to ask a therapist not to take advantage of a vulnerable patient.
Does that make it a crime? Possibly. Should it be prosecuted? No. I don't see how that would help anyone, and as you point out, it might do harm.

matthew said...

I don't even know how therapists get sanctioned for having sex with a patient. I don't know how anyone sanctions another without witnesses (beyond the patient and therapist)?

Criminally prosecuting would be near impossible. The therapist would have to be ridiculously stupid and leave sexually explicit phone messages or start "sexting" with the patient. And then if the patient got mad, all those naked selfies of the therapist could end up on the internet.

I do wonder if the idea of police getting involved would be a deterrent to reporting it to the board if patients thought they would get caught up in a criminal trial.

But then I also think that if you're the type of person who thinks like that, then you probably weren't gonna report it anyway. I think that's why a lot of rape victims don't report being sexually molested and even take a shower afterwards. You're either either the type of person who'se gonna go to the hospital, report it, tell doctors, nurses, police, and probably your whole family; OR your the type of person who would rather pretend it just never happened.

Anonymous said...

If it makes a therapist or psychiatrist think twice about doing that to a patient, then it's worth it. It's illegal in my state. Has it decreased the incidences of sexual misconduct, who knows.

Pseudo-Kristen

Anonymous said...

I wouldn't say they are always difficult cases to prove. The medical board will ask the patient questions like does the psychiatrist have any markings on his body that you know about in a place that wouldn't be seen? If he has a mole on his butt and the patient knows, then guess who will be believed. The medical board has ways of finding out the truth even in the face of denials by the perp.

matthew said...

@Anon: Yeah, but they would have to compel the therapist to strip. Don't they have the right to say. "No way! My ass is my business!"

Anonymous said...

@Anon: Yeah, but they would have to compel the therapist to strip. Don't they have the right to say. "No way! My ass is my business!"

They can make them. They can also get subpoenas for hotel records, etc.

jesse said...

Dinah, do you have a copy of the bill?

matthew said...

"They can make them. They can also get subpoenas for hotel records, etc"

OMG! I had no idea that the medical board had that kind of power. Doctors are like their own secret society. They have their own rules, hierarchy, they can punish you, strip search you. It's like learning about the secrets of the freemasons.

Dan Brown could write a book about this. There has been a rape and Professor Langdon had been called in to identify interesting medical symbols, written in Latin left at the, and left at the scene of the crime. He must penetrate the medical board, full of secret lingo and laws. Their subpoenaed records and practices are all shrouded in secrecy due to doc/patient confidentiality. Will Langdon be able to break the code? Or will the medical board and find the perpetrator. Or will the medical board, with all their might, track down the perpetrator, strip him down in ceremonial fashion, and then subject him to ritualistic punishments that end in them revoking his medical license in all his naked humiliation.

Stay tuned.

Anonymous said...

Matthew, it depends upon the state. But, chances are if there's not some pretty substantial evidence to begin with it probably won't get that far. But, yes they can and do subpoena hotel records and I do know of a state board who does ask the question about markings on the body.

If there aren't any hotel records, then there shouldn't be any problems. If it did happen, then the doctor better hope the patient doesn't remember the room number, the layout of the room, the color of the bedspread, have a credit card receipt or phone records putting them in the area of the hotel, etc. Or, that doc has some explaining to do.

Circumstantial, but it can build up to guilty.

Anonymous said...

I think any misuse of trust and taking advantage of the vulnerable is unethical and causes damage in all situations. How many parents are in this category? If a psychiatrist, at some point, expresses their love physically - and both parties can resolve any issues that arise - why is it a crime? As in most laws, the threat of consequence is the main deterant - enforcing and actualising those laws rarely occurs. Besides, there is a bigger issue here - what if there really is noone else the patient trusts? and the therapist is genuine?

moviedoc said...

First make it a crime for a president to "have sex" (whatever that means) with an intern.

Second, it depends on which party is the victim.

Third, define "therapist." How would you draw the line as to what constitutes psychotherapist? Would this lead to more "therapists" becoming "life coaches?"

The last thing we need is more crimes and more government intrusion.

Roy said...

Jesse, I added a link to the bill's language (HB33) to Dinah's post, as well as a link to the hearing's video.

If health occupations licensing boards are not doing their jobs licensing practitioners and protecting the public, then boards need to be held accountable with changes that fix those problems.

Another bill, HB112, fixes the law such that posing as a professional counselor or therapist -- when you are not, in fact, licensed -- is a crime.

Anonymous said...

"How do these states divide what is matter for the police from what is a matter for their professional boards?"

A complaint can be made in both places, and they will both investigate. There is also a duty to report in my state for mental health professionals to report sexual exploitation by a mental health services provider to the state licensing board and to the prosecuting attorney in the county where the alleged sexual exploitation occurred. The prosecuting attorney will not do anything unless the victim is willing, even if the therapist reports.

jesse said...

@anonymous, will you tell us what state you are in?

Anonymous said...

I'm in Texas.

Here is a link to the law:

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.81.htm

Anonymous said...

Sorry, that's civil, let me look for the link to the criminal...

Sec 22.011 Sexual Assault

A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.22.htm#22.011

EastCoaster said...

I think that it would be terribly unethical under any circumstances for therapists to have sex with patients.

However, aren't there usually rules saying that it is ok (even if frowned upon) to have sex with former patients after a certain number of years have elapsed?

If you're talking about other specialties, I think it's complicated. In a rural area with only one general surgeon, it might be a bit much to ask the surgeon never to date someone s/he had operated on once.

On the criminal issue: there was an analyst in Boston, named Ed Daniels (dead now for a while, as is his wife), who had sex with many patients, even trainees, over many years (28 who came forward). At one point he claimed that it wasn't possible, because he had health problems.

He held several leadership roles within his Institute. Many of his colleagues knew of what he had done, but he threatened to sue if they reported him. AND many of them continued to refer patients to him.

I can't help but think it would have been better if there had been something illegal there.

Hell, I think that the therapists who referred people to him after they knew about his multiple transgressions should have been civilly liable.

Steven Reidbord MD said...

@eastcoaster: The ethical standards differ. According to the American Psychiatric Association, a psychiatrist should never have sexual relations with anyone who has ever been their patient, even if the treatment ended long ago. In contrast, the American Psychological Association prohibits sex between psychologists and current patients, but says that following two years after the end of the treatment, a psychologist and former patient/client may ethically have such a relationship if great care and thought are put into it beforehand. Regarding physicians who are not psychiatrists, the AMA says no sex with current patients, but says nothing about former patients. Other mental health disciplines have their own ethical codes.

Regardless of any of this, anyone can bring a civil suit alleging harm (sexual or otherwise) from another, and a court will eventually decide the merits of the case, if it gets that far. *Criminal* sanctions are yet another matter, and strike me as an unneeded measure designed to make lawmakers look "tough." Just my opinion.

Anonymous said...

When I was 23 years old, I had a surgeon whom after examining me, followed me out through the waiting room, onto the street and asked me on a date. Went on the date, had sex, played racquetball a few times together, got operated on and went my merry way. At the time, I was flattered by being asked out by this doctor whom I did discover was divorced with children. Was it harmful? Was it unethical? I never felt harmed or felt it was unethical- two consensual adults. I do think psychiatry is a whole different ball game though- definitely unethical and harming while being treated. I do believe, if a few years pass and if you are no longer a patient (and depending on what you were being initially treated for), why wouldn't it be ok for a relationship?

Anonymous said...

I agree with anon that psychiatry is a different ball game. Some of the mental health professionals in trouble for this have slept with patients they have hospitalized for depression and mania, etc. It should be illegal.

jesse said...

It is worth recalling that laws often have unintended consequences and are applied in ways that were not considered at the time. Laws often remove the possibility for individual consideration of events. There have been many comments on Shrink Rap from readers who have had regulations and laws applied to them in such ways.

There are a number of considerations here. Most of us would agree that physicians, or anyone else, should not take advantage of disadvantaged or fragile populations and should not use their positions to exploit their influence.

When one goes to see a professional one expects that all decisions will be for one’s own good, and that the professional behaves that way is imperative. This applies to a dentist, architect, car mechanic, and so on. Honesty and that the professional’s recommendations are for one’s good are expected.

Romantic involvements are complicated. The “power imbalance” argument fits certain situations but is often insufficient. It is often the customer, client, patient who has the power. A better model to consider is that of “partial relationships.” One person sees the other, consistently, behaving only in a particular manner. The executive sees his secretary always attentive. she never stays on the phone when he wants to talk with her, and she never talks back to him. The college professor who teaches medieval French poetry has a student who is fascinated by it, and she listens carefully whenever he is talking about it. Is it any wonder they are attracted to each other, and can be disappointed when they have a “real” relationship?

The relationship with a psychiatrist, counselor, and minister can be similar. These are (or should be) careful listeners. A psychiatrist who only does “med management” is more like an internist or surgeon. It is unfortunate that the drive to criminalize relationships between a psychiatrist and a patient comes at a time when most psychiatrists are much more like internists than therapists.

Many people who have commented here have pointed out that regulations made in a good effort to help the mentally ill are applied in ways that are abusive. Similarly, laws that criminalize behavior can have the same consequence: imagine a psychiatrist who saw a patient one for anxiety and then twenty years later meets that patient at a party and they get married. That psychiatrist would have broken that APA rule and be liable for censure, and now possibly criminal prosecution.

It is often helpful in examining rules to use extreme examples because it helps expose the unintended consequences.

Dinah said...

Bravo, Jesse!

The intent of the law is to criminalize sex with therapists specifically, and psychiatrists get pulled in and out of the legislation.
In the case -- which the legislation is modeled after-- if a therapist is preying upon patients for sexual gratification, then I would not have a problem with criminalizing such behavior.

The issue gets stickier when the two end up having some type of relationship or when the patient is requesting something unusual like to be held, or the patient initiates some type of sexual contact (some of the complaints are not intercourse, but touching, or a kiss)...obviously these become complaints because the patient later feels (rightly so) injured by them, but the lines of what is right, what is human mistake, what is bending the rules for an unusual circumstance (like PK's example of the therapist hugging her and walking her dog in a crisis situation) are not so clearly fixed, and so should be ethical issues, not crimes. I'm not saying, BTW, that P-K's therapist was 'wrong' or sexually exploiting her, but if later, P-K decided that this injured her and complained, in that light, the behavior would be seen as unconventional and possibly warranting a sanction. If P-K found it helpful and never complains, then that's what it was, helpful.

Sex with a therapist is shades of gray, and while I agree with the absolute taboo nature of it, as Jesse has pointed out, there are exceptions we can see. What if a patient sees a psychiatrist in an ER for panic attacks, is given some medicine, sent on her way with a referral, and 3 years later they meet and start dating, and he has no memory of her? She remembers him and when they break up, she prosecutes. Really?

Anonymous said...

I can't imagine anything worse than my therapist/shrink being bitter, angry, jealous, manipulative, etc., of me. Or worse, vindictive. All are possible if romantic interest, let alone sex, get in the mix. We can't assume a therapist/shrink will be 100% mature through that experience; they are human, too.

I think there should be some criminal recourse available to victims (patients) for worst case scenarios where the health care provider goes wild.

Anonymous said...

"I think there should be some criminal recourse available to victims (patients) for worst case scenarios where the health care provider goes wild."

I agree with anon. Most of the time these situations end very badly for the patient, and there needs to be a way to hold them accountable for their conduct. What about the psychiatrists who sleep with patients they have hospitalized for mental illness, that is much more than an ethical issue. They know this patient came into their office with mental problems. I believe, and am glad some states at least also believe, that is criminal behavior to have sex with someone who came to you for help.


I live in a state where it's a crime, and I have never, ever read or heard of a therapist or psychiatrist being charged with a crime for hugging a patient. Not going to happen. There has to be an abundance of evidence that a sex crime occurred and a victim who is willing to press charges. A simple hug and walking a dog are not crimes.

Prosecutors aren't usually interested in taking on cases they cannot win. State boards are also not stupid. People who don't cause problems don't tend to land in front of the state board accused of sexual misconduct. You have to wonder about those who would do this knowing it is not only unethical, but in some states also illegal.
What's their problem?

Pseudo-Kristen

jesse said...

@P-K, There can easily be cases in which a doctor is convicted in a criminal trial but his victims do not get any relief for what they suffered. The recourse any patient has in such circumstances is to sue and ask for damages for the harm he or she suffered. Criminal action in itself does not recompense the patient, but a lawsuit might do so appropriately.

So there are three avenues open to the patient: going to a prosecutor to see if criminal charges are warranted, going to a professional licensing board, and starting a civil lawsuit. Only the last one can give compensation to the patient.

Please read what I posted above. The problem is how to frame the regulations/laws etc so they stop or prevent harm while not having unintended consequences to good people.

Anonymous said...

@ Jesse,

I know that criminal charges do not mean a patient is compensated monetarily, nor does censure from a state board. I don't think a patient who is harmed is always after money, I think sometimes they simply want accountability, justice for the harm caused.

I think we have to draw the line somewhere, and I just don't see all these good people finding themselves travelling to appear before state boards and/or going on trial for sexual assault. If they have sex with a patient knowing it was not only unethical but illegal, then they made their decision and took the risk. Why not allow the justice system to work for those who are victimized? If they didn't abuse anyone, then it will never get that far, because there will be no victim.

I don't agree that a psychiatrist who does med management is like an internal medicine doctor. My internal medicine doctor has never had me hospitalized against my will. I also didn't go in to a first visit with my internal medicine doctor and tell all of the embarrassing details about my life that the psychiatrist asks. The power imbalance is very real, even with a medication management psychiatrist. My psychiatrist knows much more about me than my internal medicine doctor ever will. I don't share these kind of details with someone I'm dating, I self protect until I know them. We are expected to tell all when seeing a psychiatrist.

I suspect that in the states where this is illegal, the state boards do a much more thorough investigation. For this reason, I wouldn't be surprised if people get by with it more in states where it is not illegal. Just a hunch.

Pseudo-Kristen

Anonymous said...

I agree with PK that it's not always about the money. Just an acknowledgement that what the therapist did was wrong and the revocation of license to practice would be enough for some people. I think it would haunt some people to know that a therapist was still out there hurting other patients.

Anonymous said...

Justice is healing, too. A mental health professional can harm a patient in many ways. We can't blanket accept that intentional mental harm is not legally offending but we do consider a slap during an argument, a grab of the breast by a boss, or stalking by an ex to be legally offending, can we?

EastCoaster said...

"anyone can bring a civil suit alleging harm (sexual or otherwise) from another,"

Umm, not exactly. You do need to have a cause of action, a tort in a civil suit. If the behavior doesn't constitute a recognized tort, then no dice. I mean, when Justice Traynor was alive and kicking in California, you might have gotten him to come up with a new one, but nowadays, they want one to exist in advance.

And, if you want to sue someone for negligence, there needs to be a recognized duty of care to the individual who has been harmed.

Lynette's Law said...

I'm glad to have come across your blog to address some of the issues you have raised. The APA forbids psychologists to have relationships with clients and former clients for two years. At the two year mark, the professional must prove their case to the APA that 1) no relationship existed during treatment and before two years and, 2) that a relationship with a former client will not harm or exploit the client. The ACA's code of ethics say it's NEVER ok to have a relationship with a client or former client. What you failed to mention in your post is the board of examiners of psychologists can collect up to $10k by fining the professional for sexual misconduct. These cases do not always have a hearing. The vast majority are surrendered licenses to avoid a hearing and avoid criminal prosecution.
The second degree rape and third degree sex offense statutes in Maryland make it a crime to engage in intercourse and sexual contact with a " mentally defective individual". The definition of " mentally defective individual" in criminal statue is anyone with a mental disorder whether temporary or permanent that renders them incapable of consent to sexual contact. If the client has a diagnosis, they have a mental disorder.
People who have a mental disorder whether temporary or permanent are a protected class of people under current law.
There are many different aspects to these issues. First, sexual misconducts often start out as sexual assaults and because of the dynamic of therapy they may not report the assault and try to forgive the professional. Predatory mental health professionals " groom" their clients so that the clients feel shame, guilt, fearful, love, responsibility for the attack and become a caregiver of the professional. It's called role reversal.
Boards are under no obligation to report crimes under current law. So, if a client reports sexual assaults to the board the professional may lose their license but the boards do not cooperate with police investigations. ALL the mental health boards can take up to 3 years to investigate cases. That leaves the public in jeopardy and the victim may not be able to bring charges because of a statue of limitations. Also, there is a statue of limitations when filing lawsuits. If it takes these boards 3 years to complete the case and take action it's unlikely the victim will be able to sue.
It's already a crime to accept cash, credit card or bill health insurance inexchange for sex. It's actually a federal crime. So, why are these professional boards allowing these professionals to avoid prosecution? As soon as a female is 18 and accepts cash for sex she can be prosecuted for prostitution. Why aren't these professionals who ARE billing health insurances ( Medicaid ) accepting cash and credit card being charged with prostitution? If you read through the disciplinary matters for all the mental health boards you will see sex acts happening during the billiable hour. That's a crime. One that is not being prosecuted.
These professionals are also giving controlled substances to patients inexchange for sex. Again, it's a crime and it's borderline trafficking.
Before Hb 56, none of the mental health professionals besides psychologists were required criminal background checks. Currently, only new applicants are taking background checks not ones already licensed.
Maryland has prosecuted sex abuse by mental health professionals. Sometimes as a 2nd degree rape, other times as a 3 rd degree and 4th degree sex offense. Even after a mental health professional is charged criminally and has to register as a sex offender, their license is not revoked.

Lynette's Law said...

That's not true for criminal prosecution. It's two year limit. It helps if people read the bill. It's two years because the mental health profession boards want it to be two years which is what their ethics say.

American Live Wire said...

First of all, let's get this strangely perceived notion of consent out of the way. The very nature of the mental health professional-client relationship makes it impossible for consent to occur. It it lopsidedly unequal, the therapist in such a position of power, the person who the patient has trusted with his or her deepest and darkest secrets. Secrets that even spouses don't know about. The DHMH booklet "Broken Boundaries" explains: “By its nature, the relationship between helping professionals and their clients is unequal. Trusting that professionals have their best interests at heart, clients become vulnerable in the health care setting. ... Because they depend on professionals' trustworthiness, knowledge, and authority, clients tend to not question a professional's judgment or behavior. This places the professional in a position of power and can make the client susceptible to exploitation.”
Furthermore, "Broken Boundaries" describes a sexually exploitative relationship as, “Sexual contact occurs between a helping professional and client in a relationship that, on the surface, may appear to be mutually consensual, but the patient's role make it impossible for her or him to give meaningful consent.” Hey, guess what? Sex without consent is... rape! That's a crime.(http://www.examiner.com/article/sexual-exploitation-not-consent)
Long term effects of sexual contact with a mental health professional are similar to that of rape victims. Kenneth S. Pope, Phd., ABPP, author of Ethics in Psychotherapy and Counseling and considered one of the foremost experts on therapy sex abuse, provides the following statistics of a national study: “The findings suggest that about 90% of patients are harmed by sex with a therapist; 80% are harmed when the sexual involvement begins only after termination of therapy. About 11% required hospitalization; 14% attempted suicide; and 1% committed suicide.” The most common effects of victims that have been involved with therapist-patient sex include ambivalence between escaping the abusive therapist and protecting him or her, cognitive dysfunction, intense emotional eruptions, emptiness and isolation, impaired ability to trust, guilt, increased suicidal risk, role reversal and boundary confusion, sexual confusion (including believing their only worth is to provide sexual gratification to others), and suppressed anger which may lead to self-loathing, self-punishment, and self-destructive behaviors. (http://www.kspope.com/sexiss/sexencyc.php)
So a mental health professional's sexual exploitation can cause a person to try to murder themselves, among other things that have them hurt for life. How is that not a crime?

advocate for Lynettes Law said...

When we went to introduce Lynette's Law for Maryland House Bill 33 on Tuesday, Julia Pitcher from Maryland Psychological Association came to oppose the bill. She stated how bill 33 was about consensual relationships between a professional and a client but from everything that I have read a patient can not consent to a relationship with their doctor, therapist, psychologist, or anyone who has power over them.

In the broken boundaries pamphlet we were given, it states that: "sexual exploitative relationship is sexual contact occurs between a helping professional and client in a relationship that, on the surface, may appear to be mutually consensual, but the patient's role makes it impossible for her or him to give meaning consent.

http://www.lynetteslaw4maryland.com/wp-content/uploads/2013/12/BrokenBoundaries.pdf

As with a sexual relationship between a parent and their child, a teacher and their student, and/or a boss and their employee. They have the power over you to make you feel it is ok to get into a relationship with them.

This should not be a consideration with this bill as it is never a good idea to have sex with your client.

The Professional boards in Maryland would like you to think that they could do a better job at disciplinary actions against their own and that a law is not needed. They want you to think that they can protect the public better then a law.

This is further from the truth. If the boards were doing their jobs then these professionals wouldn't be running rampant on their clients and taking advantage of them.

One such event is the case of Heather Sinclair and her therapist Richard Omeara. The therapist took advantage of his patient, threaten her several times about reporting it, threaten her family. Because of his threats the board allowed him to surrender his license as they feared that if they did anything else he would make good of those threats. After, two months of him surrendering his license he opened up a practice in his home and he is saying he is a health psychologist. Check out one of his articles here: http://www.examiner.com/article/exercise-and-weight-management How are the Professional Boards helping the public when this monster is still out there doing what ever he wants? Why do you think that this is ok? We need a law against therapy abuse so that this doesn't continue to happen.

This is not consensual sex by any means and these monsters need to be off the street. All professionals who abuse their clients should be put in jail, don't you agree?

Lynetteslaw said...

Patients can't seduce mental health professionals anymore than rape victims asked to be raped. Your comments above would suggest that poor, little, mental health professionals can be taken advantage of by clients who are predators. First of all, aren't you relentlessly trained on ethics, boundaries and issues like transference before you get a license? I'm pretty sure you are and not only that but you are required continuing education on ethics throughout your career. So, do you mean to tell me that a highly, trained professional who specializes in mental health is victim of seduction to mentally ill patients? I was pretty sure that most mental health professionals disowned seduction theory ( rape apologia).
The responsibility is always on the professional who has a fiduciary duty to act in the patient's best interests and even if the higher level professionals such as yourself didn't have to swear by the Hippocratic Oath, I'm sure you have read it. It very specifically states do no harm and do not have sex with patients.
Masters and Johnson were one of the first in their research on human sexuality to find that the harms of sexual exploitation by mental health professionals reaches the level of a crime. The large network of professionals who went from state to state to pass this type of legislation are mental health professionals. The two task forces that have recommended criminalization for this are mental health professionals. The first task force for sexual exploitation was in 98. The second in 2008-2009. Both task force reports and the sunset reviews recommend criminalization along with several other major improvements with boards and patient safety.

Criminalization acts as a deterrent for the behavior, it also provides another means of " justice" for victims and it also makes it substainally easier to sue civily. Being reconized as a victim of a crime also provides victims with services through the state that currently, are not available to them.
Not all victims will want to go the route of the criminal justice system but who are you to decide they shouldn't have a choice? Criminalization will not fix the problems but it will help. As far as advocating making it a crime makes it harder on patients, can't we the say the same of rape and incest? No doubt it's horrific to have children in court testifying against their parents about their victimization. Should we decriminalize rape and incest?
Once victimized, the quickest path to healing is being able to choose what path you want to take whether, criminal, mediation, tort, board report etc. Right now, without criminal sanctions, victims are powerless. Pick up the phone and call as many lawyers as you can find and ask if they will take a sexual misconduct case. They won't! Every state that has made this a crime has lawyers that specialize in civil tort for sexual exploitation.
A national nonprofit is forming in Maryland to rate mental health professionals based on their professional record, criminal record and client reviews. The nonprofit will most likely be forming partnerships and alliances with goodtherapy dot org and healthgrades to weed out both predatory mental health professionals and those who condone the behavior.
The nonprofit will also push to open the national practioner databank to the public. It's time for transparency within the mental health profession.
We have several bills in several states that are pushing the standards as high as possible including but not limited to prohibition on licensure once found guity of sexual misconduct, no license for violent, convicted felons, no previous sex crimes including 4th degree sex offense, no license if you've surrendered a license or it was revoked for any reason besides failure to renew a license.

advocate for Lynettes Law said...

Do you really think the boards can protect victims better then a law? Wow, the same boards that allow them to just surrender their licenses? The same board that hides cases from the public because they decide to do it? The same board that because of a therapist threats of violence they allow them to surrender instead of charging them? Check out what the boards have said about this law and how they think they can protect the victims better then a law and then tell me it doesn't need to be law. http://www.youtube.com/watch?v=FuX5w5FU1TE http://www.youtube.com/watch?v=vcpzHnFaQ8Y http://www.youtube.com/watch?v=SubROV8fu6g http://www.youtube.com/watch?v=g8g97kGpV4o
And, then you have this one: http://www.oregonlive.com/portland/index.ssf/2014/02/counselor_on_state_oversight_b.html Are these the people you want to make the decisions or is it time to stand up and take charge of it by making it a law? Don't let people like this decide if a victim is really a victim. The same people that are abusing victims could be on the boards.

Anonymous said...

I have read through all of the many comments regarding the questions at hand. Some very thoughtful and challenging questions. What comes to my mind is the concept of "consentual" and how some consider some clients more able to consent than others. I can understand how some providers may consider short-term or "generic" diagnoses clients as having full consent ability (like a brief period of generalized anxiety or depression due to specific circumstances like loss of a job) versus those who have chronic sexual abuse histories, however as some mentioned above, I believe also that the power differential inherent in the therapeutic relationship is enough to create such an environment that the client does not feel like he or she can say no or perhaps they believe that because the provider has a license and training, what they recommend must be for their best interest. Another caveat to what I believe is the inability for any client to give consent to sex with their provider which has also been mentioned above is that psychiatric providers on a regular basis provide reports and evaluations to have a client's children taken away, have a client imprisoned, or deported from the country all on the words of their degree and training. That is a lot of power that can intimidate any client, no matter their reason for coming to therapy or their history. I have seen even the most educated, intelligent and insightful clients succumb to the grooming and love bombing techniques that providers who sexually violate their clients do. For those providers who may not be considered "predators" by other providers, should their boundaries be so limited or fragile that they cannot control their sexual urges and the emotional intimacy that comes from working so closely with a client and their struggles, by ethics and just by good judgment they are to talk with their supervisor and decide whether they need to transfer the client to another provider or get the help and accountability they need to not trespass the sexual boundary. I also am glad that some providers from states who have sex with a therapist as a crime stating that it does not create problems in false reporting or victims not wanting to report. That makes sense to me as false reporting is very rare in my experience and as was said before, those who don't want to report won't pursue criminal charges either. Making sex with a therapist doesn't seem to change those dynamics per the responses I read above. Also, one other thing I wanted to clarify is that in this particular bill being presented, the term "therapist" is being used as a term to refer to any provider. It is my understanding that the term "therapist abuse" was used only because most people understand what that means and that it makes it a better catch all because "new" provider names seem to pop up every day like "life coach" or whatever and any time you are dealing with legal documents, loopholes come from terminology or lack thereof. Thanks everybody for such thought-provoking questions! I am glad to know that there are providers in many areas who are open to consider all sides to a situation and not just take the instinctual emotional response that we all as humans can have for such emotionally charged concepts.

Margaret said...

I noticed that you stopped posting comments to this blog, is this because you really don't want to hear the other side of the coin and it is more important to get your point of view public but not others? Why would you finish posting all the comments, like some of my friends have wrote in? If you would like to take it to a private talk be my guest and you can respond to me alone at inspiredghst@aol.com anytime. I think if you are going to put it out there then you should be ready to hear all comments and allow others to see them too. Thanks

ClinkShrink said...

Lynette and advocate for Lynette's Law:

I and my colleagues work in public institutions with seriously mentally ill patients who also may be violent offenders. Under your bill, if I or one of my colleagues get raped by a patient, I would be the sex offender. How do you plan to address that problem?

soulofaphoenix said...

To use your colleagues words in one of the blogs above (a position that we at LL do not agree,) "The new law would extend the issue of criminalization would include contact with to competent, consenting adults." In the example you are presenting, you as a competent, consenting adult (hopefully you are as a mental health provider), you would have the ability to ward off the sexual advances of a client whether they are violent or not, especially because you as a provider have the upper hand of the power differential. That is the insinuation by several mental health providers who want to block this bill: if you are an adult and have the mental functioning to think clearly, it must be your fault or you had the resources to defend yourself against your provider. It doesn't make sense, does it? We as clients are no more able to ward off the advances of a sexual predator who is our mental health provider than you would in this hypothetical situation you have offered. Yet, in your case, this situation would never happen if the facility is following protocol. For those abused sexually by providers, we don't have the "back up" of others to protect us from such advances, whether done by grooming or by violent action. I worked in a facility with violent offending mentally ill clients, so I know what happens in those situations. If a client attempted to attack a staff member or even another client, they were immediately "taken down" by multiple staff members in a method they had practiced many times that does not harm the client. Within 60 seconds, the client was on the ground incapable of doing harm and then shuffled into a solitary room to cool off, whether shot up with disabling drugs or not. What you are suggesting would not happen to you unless your facility is not competent to do the same. Clients do not have control or safety within the "therapeutic" relationship. Providers use their power and rules to protect themselves, often at the expense of the clients who are being victimized by them or their colleagues.

LynettesLaw said...

You raise a good question and one that I will address head on. Firstly, I believe you meant my colleagues and I work in public institutions with seriously mentally ill patients.
If it's true that you do indeed work with mentally ill patients who are institutionalized probably involuntarily then you would never have questioned the issue of consent in your original post.
You've also censored our informative replies to you explaining the bill, scope of the problem and the history behind such legislation.
At this point, I do not believe you are a psychiatrist but I'll answer your question anyway. Rape is rape and there are very specific codes for rape under current law. Sexual contact is also well defined under the law. In the hypothetical you give, the patient forcing sexual contact or intercourse is rape. You would not be charged with rape if you were not the one who raped.
The Hippocratic Oath forbids doctors from having sex with patients. It also instructs them to " Do No Harm". If you are a psychiatrist then you fall under the medical board and you are a licensed doctor and the Hippocratic Oath applies especially to you.

Trying to twist the bill into something that it isn't is an injustice to the very people you are charged with caring for.
Hopefully, you post this comment. If not, I will post all comments here onto our mediums with our replies. We've done our research and have been advocating for legislation and helping victims for two years with the help of doctors, lawyers, psychologists and therapists.
We always welcome questions and open dialogue but you have made erronous statements about my bill, the disciplinary processes, and legal redress for victims.
The research by professionals ( apparently, such as yourself) is on our side. I hope one day you decide to get on board and be a support for these victims.

ClinkShrink said...

Soul: No one at this blog is suggesting that nonconsenting sex shouldn't be a crime. The scenario you're presenting is completely different than the one I'm talking about. The bill we're talking about here doesn't even actually address the scenario you're talking about. Lynette's Law only addresses victims who are "mentally defective."

Under Maryland Criminal Law §3-301 the term "mentally defective individual" means an individual who suffers from mental retardation or a mental disorder, either of which temporarily or permanently renders the individual substantially incapable of:
•(1) appraising the nature of the individual's conduct;
•(2) resisting vaginal intercourse, a sexual act, or sexual contact; or
•(3) communicating unwillingness to submit to vaginal intercourse, a sexual act, or sexual contact.

Lynetteslaw said...

Lynette's Law covers anyone with a mental disorder as a protected class of people under current law. The bill is being revised by a strike and insert amended to point to the second degree rape statute and third degree sex offense statute adding the language " mental health practioner" in place of " agent". Any patients on medication by a mental health practioner" will also fall under the same statues because of the definition of mentally incapacitated individual.
Twenty seven states have passed this as a felony. This isn't a new law, it's closing a loophole in existing code.