A relationship between a therapist and a patient does not have to culminate in sexual activity in order to sustain a malpractice claim against the therapist. It is a generally accepted rule among psychotherapist that any interaction between a patient and a therapist that goes outside of established professional boundaries is inappropriate and may be harmful even without blatant sexual contact. Some courts have concluded that therapist malpractice may arise from boundary violations such as socializing, gift-giving, and even inappropriate telephoning. A claim of malpractice for sexual or boundary abuse may be strengthened by evidence of other non-sexual acts of malpractice such as overmedicating a patient, breaching confidentiality, failing to refer a patient when appropriate, or practicing while under the influence of alcohol or drugs.
In a claim for sexual or boundary abuse by a therapist, expert testimony is generally required to establish that the conduct in question is a violation of the applicable standard of care. Detailed expert testimony is necessary in overcoming inevitable juror bias against a patient who consented to the sexual activity.
In addition to malpractice claims, a therapist who engages in sexual activity with a patient may be held liable for damages under claims of intentional or negligent infliction of emotional distress, breach of fiduciary duty, and breach of contract.
In an assessment of damages in a medical malpractice claim resulting from sexual contact, the entire course of treatment should be carefully evaluated. Boundary violations will often lead to other violations of the standard of care, either because the therapist is trying to avoid outside knowledge of the sexual activity or because the therapist is unaware of the patient’s needs arising from the improper relationship. Specific harm resulting from sexual and other boundary violations may include: psychological disorders; aggravation of existing disorders; problems in marital or other family relationships; difficulty trusting professionals; psychosomatic symptoms; difficulty concentrating; impaired social functioning; mood disorders; lack of self-confidence; loss of employment; or emotional breakdown.
Patients who are sexually abused or exploited by therapists are usually classic “thin-skull” patients, which means that they may have come to the therapist with significant pre-existing injuries. However, if the therapist’s conduct would have created liability for injury to a person of normal sensibilities, he or she is liable for all damages to an unusually susceptible patient.
Therapy Never Includes Sexual Behavior
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California’s lawmakers and licensing boards want the public to know that professional therapy never includes sexual contact between a therapist and a client. It also never includes inappropriate sexual suggestions, or any other kind of sexual behavior between a therapist and a client. Sexual contact of any kind between a therapist and a client is unethical and illegal in the State of California. Additionally, with regard to former clients, sexual contact within two years after termination of therapy is also illegal and unethical. It is always the responsibility of the therapist to ensure that sexual contact with a client, whether consensual or not, does not occur.
Table of Contents
Sexual behavior between a therapist and a client can harm the client. Harm may arise from the therapist’s exploitation of the client to fulfill his or her own needs or desires, and from the therapist’s loss of the objectivity necessary for effective therapy. All therapists are trained and educated to know that this kind of behavior is illegal and unethical.
Therapists are trusted and respected by their clients, and it is not uncommon for clients to admire and feel attracted to them. However, a therapist who accepts or encourages the expression of these feelings through sexual behavior with the client—or tells a client that sexual involvement is part of therapy—violates the therapeutic relationship, and engages in conduct that may be illegal and unethical. This kind of abusive behavior can cause harmful, long-lasting, emotional, and psychological effects to the client.
DEFINITION OF TERMS
Throughout this booklet, the terms “therapist,” “therapy,” and “client” will be used. “Therapist” refers to anyone who is licensed to practice psychotherapy, or is training to become licensed, and includes:
- Physicians and Surgeons (Psychiatrists are Physicians and Surgeons)
- Registered Psychologists
- Psychological Interns
- Psychological Assistants
- Licensed Clinical Social Workers
- Registered Associate Clinical Social Workers
- Social Work Interns
- Licensed Marriage and Family Therapists
- Registered Associate Marriage and Family Therapists
- Marriage and Family Therapist Trainees
- Licensed Professional Clinical Counselors
- Registered Associate Professional Clinical Counselors
- Professional Clinical Counselor Trainees
- Licensed Educational Psychologists
- Registered Research Psychoanalysts
“Therapy” includes any type of counseling from any of the licensed or registered professionals listed above1.
“Client” refers to anyone receiving therapy, or counseling, or other services.
“Sexual contact” means the touching of an intimate part of another person, including sexual intercourse.
“Sexual behavior” means inappropriate contact or communication of a sexual nature. This definition does not include the provision of appropriate therapeutic interventions relating to sexual issues.
“Touching” means physical contact with another person either through the person’s clothes or directly with the person’s skin.
“Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
“License” includes certificate, registration, or other means to engage in a business or profession regulated by Chapter 1, General Provisions, section 475 of the Business and Professions Code.
1Social Work Interns, Marriage and Family Therapist Trainees, and Professional Clinical Counselor Trainees are still in their master’s degree program and have not yet earned their graduate degree. They also are not registered with the Board of Behavioral Sciences yet. Complaints about these individuals should be directed to their supervisor, the agency that employs them, or their academic institution.
You, as a client, have the right to:
- Request and receive information about the therapist’s professional capabilities, including licensure, education, training, experience, professional association membership, specialization, and limitations.
- Be treated with dignity and respect.
- A safe environment, free from sexual, physical, and emotional abuse.
- Ask questions about your therapy or other services from your provider.
- Decline to answer any question or disclose any information you choose not to reveal.
- Request and receive information from the therapist about your progress toward your treatment goals.
- Know the limits of confidentiality and the circumstances in which a therapist is legally required to disclose information to others.
- Know if there are supervisors, consultants, students, or others with whom your therapist will discuss your case.
- Decline a particular type of treatment, or end treatment without obligation or harassment.
- Refuse electronic recording.
- Request and (in most cases) receive a summary of your records, including the diagnosis, your progress, and the type of treatment.
- Report unethical and illegal behavior by a therapist (see “What You Can Do”).
- Receive a second opinion at any time about your therapy or your therapist’s methods.
- Receive a copy of your records or have a copy of your records transferred to any therapist or agency you choose.
In most sexual misconduct cases, other inappropriate behavior comes first. While it may be subtle or confusing, it usually feels uncomfortable to the client. Some clues or warning signs are:
- Telling sexual jokes or stories.
- Sending obscene images or messages to the client.
- Unwanted physical contact.
- Excessive out-of-session communication (e.g., text, phone, email, social media, etc.) not related to therapy.
- Inviting a client to lunch, dinner, or other social and professional activities.
- Changing the office’s business practices (e.g., scheduling late appointments when no one is around, having sessions away from the office, etc.).
- Confiding in a client (e.g., about the therapist’s love life, work problems, loneliness, marital problems, etc.).
- Telling a client that he or she is special, or that the therapist loves him or her.
- Relying on a client for personal and emotional support.
- Giving or receiving significant gifts.
- Suggesting or supporting the client’s isolation from social support systems, increasing dependency on the therapist.
- Providing or using alcohol or drugs during sessions.
If you are experiencing any of these warning signs, you have the right to file a complaint with the appropriate licensing board and consult with another therapist.
COMMON REACTIONS TO SEXUAL MISCONDUCT BY A THERAPIST
If a therapist has engaged in any sexual behavior or contact with you, you may experience some or all of the following feelings or reactions:
- Intimidated or threatened.
- Guilt and responsibility—even though it is the therapist’s responsibility to keep sexual behavior out of therapy.
- Mixed feelings about the therapist—e.g., protectiveness, anger, love, betrayal.
- Isolation and emptiness.
- Distrust of others’ feelings or intentions, or your own feelings.
- Fearful that no one will believe you.
- Feeling victimized or violated.
- Experiencing traumatic symptoms, e.g., anxiety, nightmares, obsessive thoughts, depression, or suicidal or homicidal thoughts.
WHAT YOU CAN DO
Report the Therapist—What happened to you may be illegal and unethical and you should report it to the appropriate licensing board as soon as possible in order for the board to take appropriate action within the statute of limitations.
In California, there are four boards that license and regulate therapists.
Board of Behavioral Sciences 1625 North Market Blvd., Suite S-200,Sacramento, CA 95834
(916) 574-7830 www.bbs.ca.gov
This board licenses and regulates Licensed Educational Psychologists; Licensed Clinical Social Workers; Registered Associate Clinical Social Workers; Licensed Marriage and Family Therapists; Registered Associate Marriage and Family Therapists; Licensed Professional Clinical Counselors; and Registered Associate Professional Clinical Counselors.
Board of Psychology 1625 North Market Blvd., Suite N-215,Sacramento, CA 95834
(916) 574-7720 www.psychology.ca.gov
This board licenses and regulates Psychologists, Psychological Assistants, and Registered Psychologists.
Medical Board of California 2005 Evergreen Street, Suite 1200,Sacramento, CA 95815
(916) 263-2389 www.mbc.ca.gov
This board licenses and regulates allopathic (MD) Physicians and Surgeons (Psychiatrists are Physicians and Surgeons) and Research Psychoanalysts.
Osteopathic Medical Board of California 1300 National Drive, Suite 150, Sacramento, CA 95834-1991
(916) 928-8390 www.ombc.ca.gov
This board licenses and regulates Osteopathic (DO) Physicians and Surgeons (Psychiatrists).
The purpose of these licensing boards is to protect the health, safety, and welfare of consumers. Licensing boards have the authority to discipline therapists by using the administrative law process.
HOW TO FILE A COMPLAINT
You can submit your complaint online or in writing using the forms on the respective board’s website to start the process. You should provide as much information as possible, but it is especially helpful to provide the following information, if available:
- Detailed description of the conduct you are reporting.
- Copies of materials that support your complaint, e.g., emails, text messages, correspondence between you and the therapist, photographs or other images you shared with or received from the therapist, etc.
The board will require a signed release form, authorizing it to obtain your records from the therapist. These records are required for official use, including investigation and possible administrative proceedings regarding any violations of the law. Your complaint will be evaluated, investigated, and you will be notified of the outcome.
The following are possible outcomes of your complaint:
- Revocation or surrender of the therapist’s license: This results in the loss of license and right to practice.
- Probation: The therapist’s license may be placed on probation for a defined period of time, with terms and conditions that must be complied with, in order to continue to practice.
- Case is closed and no action taken against the therapist’s license: The board could not substantiate a violation of the laws and regulations.
It is board policy to use only initials, rather than full names, to identify clients in public disciplinary documents. However, hearings are open to the public, and you may be asked to testify. All disciplinary actions are public information.
In addition to filing a complaint with the appropriate regulatory board, you may also have civil remedies and criminal recourse available to you in regard to this incident.
WHERE TO GET HELP
Therapy may be an important tool in your recovery. Before selecting a new therapist, here are a few suggestions to support that process:
- Ask someone you know and trust for a referral.
- Search online for a local sexual assault center or crisis intervention service. These centers can refer you to therapists experienced in dealing with those who have suffered sexual misconduct by a therapist.
- Contact professional associations and ask for referrals to therapists who specialize in helping those who have suffered sexual misconduct by a therapist.
- Seek a referral from your primary care physician or insurance provider.
Visit the board’s website to verify the status of the therapist’s license.
FREQUENTLY ASKED QUESTIONS
Is it normal to feel attracted to a therapist?
Yes, it is normal to feel attracted to someone who is attentive, kind, and caring. This is a common reaction toward someone who is helping you. However, all therapists are trained to be aware of this and to maintain a professional therapy relationship that is beneficial to the client.
What if the client initiated sexual behavior?
The therapist is the one who is responsible for ensuring that sexual behavior or contact is not part of therapy.
Why do I feel scared or confused about reporting my therapist?
In most cases, the therapist is an important person in the client’s life. Therefore, feelings such as fear, confusion, protectiveness, shame, or guilt are common.
Can I file a complaint if there is or has been a civil case between myself and the therapist?
Yes, you may file a complaint at any time, whether the case is ongoing or concluded. A civil settlement cannot preclude you from filing a complaint against a licensee.
Is there a cost associated with filing a complaint?
No, filing a complaint is free and can be filed via telephone, email, mail, or online.
Can I file a complaint if I had a personal relationship with my therapist?
Can I contact the therapist after I file a complaint?
In order to preserve the integrity of the investigation, it is strongly recommended that you do not initiate contact with the therapist once you have filed a complaint.
What if the therapist contacts me after I file a complaint?
Once you have filed a complaint, notify the board right away if the therapist contacts you.
The 2019 edition of “Therapy Never Includes Sexual Behavior” is published by the California Department of Consumer Affairs. This publication is a joint project of the California Board of Psychology, the California Board of Behavioral Sciences, the Medical Board of California, the Osteopathic Medical Board of California, and the Department of Consumer Affairs’ Office of Publications, Design and Editing.
This publication, and its previous versions, are the result of the dedicated work of former Senator Diane Watson, whose Senate Task Force on Psychotherapist and Patient Sexual Relations prompted the development of the original “Professional Therapy Never Includes Sex” brochure in 1990.
This booklet is available in the “Publications” section of the Department of Consumer Affairs’ website at www.dca.ca.gov.
Single copies of the publication are available at no charge from the boards listed above. For larger quantities, please contact the Office of Publications, Design and Editing, California Department of Consumer Affairs, 1625 North Market Blvd., Suite N-119, Sacramento, CA, 95834, or call (866) 320-8652 or (916) 574-7370.
This booklet may be copied, if (1) the meaning of copied text is not changed or misrepresented, (2) credit is given to the California Department of Consumer Affairs, and (3) all copies are distributed free of charge.
Department of Consumer Affairs
1625 North Market Blvd.
Sacramento, CA 95834