Therapist-Patient Sex Twenty Years Later: A View From The Courtroom

Twenty or so years have passed since therapist-patient sex came squarely to the attention of the psychotherapy professions.  In 1986, Kenneth Pope and Jacqueline Bouhoutsos published their book, “Sexual Intimacy Between Therapists and Patients” (Praeger).  The publication of this book marked the end of an era—an era during which famous and respected psychotherapists married their patients, during which a surprisingly large number of psychotherapists became sexually involved with their patients, and an era during which this could be done without adverse repercussions to the therapists’ careers.  For the past twenty years, every psychotherapy profession—psychologists, clinical social workers, marriage and family therapists, and psychiatrists—has decried and denounced this behavior, a behavior that is a crime in some states and leads to nearly automatic revocation of one’s professional license.  For twenty years, psychotherapists have been exposed and re-exposed to redundant educational messages, at mandatory continuing education programs, telling them that sex with a patient is indefensible, inexcusable and is professional suicide.

For most of this twenty year period, I have testified or consulted as an expert witness on the standard of care in therapist-patient sex and other ethics matters that have involved psychologists, clinical social workers, marriage and family therapists and psychiatrists.  I have seen remarkably egregious violations—not only of professional ethics but of ordinary human decency.  I have seen a male therapist, while treating a couple, initiate a sexual relationship with the wife in the couple he is treating—despite the fact that the couple had come to the therapist hoping to save their marriage.  I have seen a similar case in which the male therapist began a clandestine sexual relationship with the wife of the couple but actually continued simultaneously to treat the dyad—while secreting advising the wife to get a divorce.  I have seen a psychiatrist exchange sex for drugs in the case of a substance-abusing patient, and I have seen a psychologist form an overly close relationship and borrow an inordinately large sum from a wealthy patient—only to claim later that it had been a gift.  Also during this period, I have seen changes in the types of claims that are filed and in the circumstances in which therapists and patients become sexually involved with each other.

Despite the current ethics and enforcement climate—a climate that can best be described as zero tolerance for sex with patients—cases of therapist patient sex still occur.  But while the cases continue to arise, they are different in certain regards from the earlier cases that came to light in the 1970’s and 1980’s.  What follows is a description of some differences I have observed in my own consulting practice between therapist-patient sex as it occurred in the earlier, more naive era (let’s say, before 1980) and the current era (let’s say after 1995).  One caveat is that numerous types of sampling error and bias are built into any such first-person account.  I hope to provide illustrative examples that might lead to further discussion, and I acknowledge this is by no means a scientific survey.

1. In the earlier era, the therapist could convince himself—the male pronoun is used intentionally because most of the offenders were men—that the sexual behavior might be a helpful part of treatment. I believe that some, if not most of the offenders, who pitched this line to their female patients, actually believed it themselves.  They told their patients that the patients needed to open up to intimacy, needed to overcome their fears regarding their sexuality, needed to break out of their shells, needed to learn body-acceptance, trust and so on.

While these arguments in support of sex with the therapist may have been cynical manipulations created by the therapist merely to seduce the patient, they also may have been sincerely stated—however false such arguments may be viewed by the rest of the professional community.  Because in the former era there had been so little discussion of therapist-patient sex, the therapist could convince himself, as he convinces his patient, that this particular intervention had not been studied, could result in benefits to the patient, and had been rejected out of hand due to an anti-sexual, puritanical bias.  Note that many of the known cases of therapist-patient sex occurred during the so-called “sexual revolution,” a time in our society when sexual experimentation of all kinds was seen as more acceptable.  Indeed, during the 1970’s, Masters and Johnson and other sex therapists incorporated “sex surrogates” into their treatment.  Perhaps, at the time, it was seen as only a short leap for the therapist himself to offer to serve as a male sex surrogate as a way to directly resolve the patient’s sexual issues.  The therapist may have told himself that he was forward-thinking, if not cutting edge, and that lowering the barriers to sexual expression would benefit both therapist and patient.  Like much else that went on in the name of the sexual revolution, today these ideas seem dated, wrongheaded and destructive.

Today’s cases are different.  They occur in a climate in which every therapist has attended compulsory continuing education workshops and has been taught that absolutely no benefit, and likely harm, befalls patients after sex with their therapists.  One difference, then, between previous cases and current cases, is a change in the likelihood that the therapist stumbled into this misbehavior with a belief that it might prove helpful to the patient.  Today, no therapist can reasonably entertain that belief, as it has been so forcefully rejected by his or her peers and that rejection has been so well documented and thoroughly promulgated.  Today’s offenders are different:  They know full well there is no excuse or justification for what they are doing, they know their careers will be over if they get caught, yet they proceed anyway.  Certainly, today’s offenders make a clear choice that their predecessors may not have knowingly made.

2. In the current era, the patient, like the therapist, is probably aware that sexual behavior in the context of psychotherapy is considered unacceptable. Patients are more sophisticated today.  They have likely read newspaper or magazine articles about therapist-patient sex or heard discussions on television talk shows, and are aware of the low regard with which the psychotherapy professions greet this behavior.  Because no scientific methods of survey research can possibly determine how many unreported cases of therapist-patient sex exist, the following is my own unsubstantiated speculation.  Therapist-patient sex, when it occurs, is more likely to be reported today than in the earlier era because patients are more likely to know that it is a licensing violation.  Nowadays, I suspect there are far fewer victims of this practice who, believing themselves to have been harmed by the sexual relationship, elect to go off and suffer in silence without filing a licensing complaint.  For one thing, in California, any subsequent therapist who treats a victim and learns of a prior instance of therapist-patient sex is required by law to provide a pamphlet that describes courses of legal and professional action that are open to the victim.

In an unusual case about which I testified at a California Board of Psychology hearing, the female patient intended, for whatever psychological reason, to have a sexual relationship with her male psychologist.  She was knowledgeable about the laws and actually went to an attorney and attempted to draw up papers that would make it impossible for her later to sue or file a licensing complaint. Her purpose in creating this document was to reassure her intended sex partner, her therapist, that he could proceed without fear of subsequent repercussions.  She was unable to find an attorney who would draw up such papers and was apparently legally unable to waive those rights. Ultimately, the two did become sexually involved, and she did later file a licensing board complaint.

One potential consequence of a more knowledgeable population of consumers is the possibility of false complaints being filed.  Unfortunately, with more patients being aware of the massive harm that can be done by a compliant—even an unsubstantiated complaint must be reported to professional staff associations and malpractice insurers—the likelihood would seem to increase for false complaints.  Why would someone file a false complaint?  A variety of factors could serve as motivation: hope of financial gain, acting-out of the patient’s pathological anger or of other aspects of a personality disorder, or freeing the patient from unwanted, or court mandated, treatment.  I cannot say for certain how many cases of false complaints I have consulted on.  After all, the jury’s verdict for the defense does not necessarily resolve such questions, as juries are fallible.

In one remarkable San Francisco case, the female patient suddenly initiated kissing the male therapist during a therapy session.  The male therapist briefly responded, and they mutually kissed.  The therapist quickly ended the session and, the next day, wrote a letter of apology to the patient.  The therapist, a psychiatrist, stated that he had erred and that he and the patient should resolve this therapeutic error in subsequent sessions.  The patient used the letter to substantiate that the kissing occurred, filed a lawsuit the day after receiving the letter, and was ultimately awarded a large sum of money by the jury.  Was the entire scenario initiated by the patient as a contrived way to reap a financial reward?  One can never know, but that certainly is one way of explaining the known facts.

This is the second part of a two-part series on changes over the years in litigation concerning therapist-patient sex.

3. One of the most significant changes over the years has been the advent of malpractice attorneys becoming knowledgeable about non-sexual boundary violations. Indeed, a specialty of lawyers has emerged—lawyers who sue psychotherapists—and these attorneys tend to know more about the ethics codes and practice guidelines of the American Psychological Association and other relevant professional organizations than many, if not most, of the professionals belonging to these associations.  These attorneys file suits over non-sexual boundary violations—non-sexual touching, excessive self-disclosure, sessions outside the office, and non-sexual multiple relationships.  A lawsuit against a psychotherapist for a non-sexual boundary violation was unheard of twenty years ago.

One very significant causal factor in the rise of lawsuits over non-sexual boundary violations was the termination or limitation of professional liability coverage for sex claims.  One of the reasons attorneys took on the earlier cases of therapist-patient sex was the profit motive.  Therapist-patient sex cases would reap million dollar or even multi-million dollar awards for plaintiffs.  Large attorney fees came to an end when the malpractice insurers, who typically wrote policies with million dollar or higher coverage limits, recognized that therapist-patient sex was not a reasonable risk of psychotherapy, was not part of psychotherapy, and, consequently, did not need to be covered as part of the malpractice policy.  Most malpractice policies today have a coverage limit of $25,000 for damages resulting from therapist-patient sex.

With the new coverage limits in place, the lawsuits for therapist-patient sex did not stop.  Instead, attorneys adapted to the language of the new malpractice policies.  Because numerous ethics experts have opined that non-sexual boundary violations precede therapist-patient sex, and because these non-sexual boundary violations are seen by many as harmful in and of themselves, a new kind of lawsuit arose:  Therapists who had been sexually involved with patients began to be sued for all the non-sexual boundary violations that had preceded the sexual involvement.  These boundary violations included sessions that focused on the therapist’s problems rather than the patient’s (excessive self-disclosure), meetings that were social and of no therapeutic benefit, exchanging gifts of substantial value as the relationship devolved from therapeutic to social, and a host of other activities that were incompatible with meaningful psychotherapy.  The case was made that these non-sexual boundary violations had caused great harm to the patient—at minimum, depriving the patient of the needed treatment.  The result of this new strategy was that cases of therapist-patient sex came to trial with hardly any mention of the sexual aspect of the relationship.  Instead, they were tried based on the non-sexual boundary violations—the violations that werecovered by the malpractice policy.

Not only did this provide attorneys with a new strategy to sue for sexual violations and recover damages, it opened the door for these same attorneys to become knowledgeable about non-sexual forms of malpractice and negligence.  This, in turn, gave rise to a new set of lawsuits that focused on claims of harmful non-sexual boundary violations or non-sexual multiple relationships.  These behaviors had always been unethical when they were harmful or exploitative, but they had not previously been the focus of lawsuits because attorneys and patients had been unaware that they could be.

4. A conservative, risk management backlash against unethical psychotherapists has developed. Because of the increased number of lawsuits against psychotherapists over the past twenty years, malpractice insurance companies have led the charge to bring continuing education on ethics and risk-management to all psychotherapists.  Numerous such courses are offered, some resulting in a discount on the therapist’s malpractice policy and some required for state license renewal.  This represents a substantial change from the approach to ethics in the earlier era.  Many psychotherapists of the Baby Boom generation, who trained in the nineteen sixties and seventies, had never even been exposed to a course on ethics, let alone risk management, as part of their professional training.  The insurance companies support today’s continuing education courses, or even sponsor them themselves, in the hope that those who complete such courses will engage fewer of the behaviors that resulted in lawsuits and insurance payouts.

Risk management training is somewhat different from ethics education.  Ethics, briefly, is about doing what is right.  Risk management is about avoiding doing that which is risky—meaning that which is likely to provoke a lawsuit.  Risky behavior by a psychotherapist is not necessarily unethical.  Indeed, under certain circumstances, risky behavior may be the most ethical course of action.   (See the recent book by Ken Pope and Melba Vasquez, “Ethics in Psychotherapy and Counseling: A Practical Guide,” Jossey-Bass, 2007, for a more complete discussion of the interplay between ethics and risk management.)

For example, having meetings with the patient outside the office is a behavior that is considered “risky.”  Outside of office meetings can be part of a breakdown of boundaries in a relationship that is exploitative or harmful for the patient.  Complying with risk management advice, however, does not always lead to more ethical behavior.  Not all out of office contacts are unethical.  I testified in a boundary-violation lawsuit that involved substantiated claims of out of office contacts and was successfully defended.  The plaintiff testified that the therapist came to her house, at her request, and fed her dog while the plaintiff was hospitalized.  The plaintiff also produced a series of small gifts that had been given to her by her therapist over the years.  The plaintiff’s attorney attempted to characterize these and other behaviors as signs of an overly close, exploitative and sexual relationship.  The jury was ultimately convinced, though, that the therapist’s actions—feeding the dog, for example—were simply acts of kindness towards the patient and were neither unethical nor exploitative and were not indicators that the relationship had become sexual.  Indeed, from the defense point of view, the therapist’s kind and caring behavior had been a key ingredient in building the therapeutic alliance and keeping this very ill patient in treatment.  The jury ultimately decided that the patient’s case was a fraudulent attempt at financial gain.

While decreasing the likelihood of a lawsuit, a commitment to risk management also decreases therapeutic flexibility, humanness and spontaneity.  (For a discussion of this and similar quandaries, see Ofer Zur’s 2007 book, “Boundaries in Psychotherapy: Ethical and Clinical Explorations,” American Psychological Association Press, also see the book “Assessing and Managing Risk in Psychological Practice: An Individualized Approach,” by Bruce Bennett and associates, The Trust, 2006.  The latter book was provided to all malpractice policy-holders by the American Psychological Association Insurance Trust.)

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