This course is intended to assist Texas Licensed Social Workers in understanding and complying with state law and professional ethics guidelines prohibiting sexual misconduct.

Applicable state law includes: Texas Occupations Code Chapter 50512 (hereafter, "Chapter 505"); and the Code of Conduct and Professional Standards of Practice, codified at Texas Administrative Code Title 22, Part 34, Chapter 781, Subchapter D, Rule §781.405, Sexual Misconduct3 (hereafter, "§781.405").

Section I provides a historical overview of the problem of professional sexual misconduct. Section II reviews existing studies and other data to place the problem in context. Section III identifies characteristics common to professionals who are at risk of engaging in sexual misconduct, as well as classifications of offenders. Section IV discusses the harmful effects of licensee/patient sexual contact, including gender disparities and other issues. Section V reviews the relevant statutes and professional ethics guidelines that apply specifically to licensees in Texas. Section VI identifies relevant legal issues and potential consequences of professional sexual misconduct (including professional discipline, malpractice litigation, and criminal penalties), and discusses steps for prevention, enforcement, and rehabilitation.


Concerns about sexual misconduct by mental health professionals are hardly new: According to Schoener, the earliest published text to address the issue is the Corpus Hippocratum, "a body of about 70 medical texts compiled by the Library of Alexandria during the 4th and 5th centuries B.C." that includes the "Hippocratic Oath."4 Schoener cites the oath's "original Greek version," which provides: "I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free."5 Citing Brodsky, Pope dates the first such code to the even earlier "code of the Nigerian healing arts."6

Traces the issue through subsequent centuries, Schoener notes earlier writers' tendency to blame professional sexual misconduct on seductive female patients and parishioners. By the 1880s, he concludes sardonically, "[W]e know what the problem is . . . it is women."7 Schoener's "Overview" makes clear that this tendency informed the approaches and actions of the founders of the modern mental health fields: Freud, Jung, Breuer, Ferenczi, and countless others either engaged in or sanctioned what today would clearly be regarded as sexual misconduct.

Citing Ernest Jones's biography of Freud, Schoener notes that Freud used as a treatment model the 1880 case of "Anna O.," one of Joseph Breuer's hypnosis patients. In treating Anna O., Breuer reportedly did not handle effectively what today would be called the countertransference process. Breuer's wife reacted badly to her husband's infatuation with his patient, and Breuer, in turn, did not cope well with his wife's response: He terminated Anna O.'s treatment, only to rush to her bedside during a "hysterical childbirth."8 Jones reports that Breuer "fled [Anna O.'s] house in a cold sweat" and the next morning decamped with his wife for a second honeymoon in Venice.9

Although Schoener insists that Breuer's relationship with Anna O. "did not involve sexual activity," the record seems less clear.10 And Schoener offers a troubling coda of his own to Anna O.'s case, asking, "And what happened to Anna O., that troubled young woman? She grew up to be Bertha Pappenheim, a leading feminist, social reformer, and a pioneer in the field of social work in Germany."11 His conclusion appears to imply that, since Pappenheim became such a productive member of society, Breuer's conduct not only did not harm her but may even have helped her � a conclusion that seems unsupported, at best.

Freud reportedly drew on Breuer's hypnosis practice, including his treatment of Anna O., in developing his psychoanalytic approach. Freud coined the term "transference" to describe the displaced feelings (including romantic and sexual feelings) that his patients developed for him during the analytical process. However, while he asserted that analysts should not become romantically or sexually involved with their patients, he excused such conduct by his male colleagues.

In the most glaring example, Freud inserted himself into a romantic relationship between one of his former students, Horace Frink, and one of Frink's patients. Freud not only urged Frink to leave his wife and marry the patient, but he evidently did so in the service of his own financial interests.12 The patient's family was wealthy, and Freud apparently believed that if Frink married the patient, her family would make a significant financial contribution to Freud's own work.13

Another incident involved Freud's former student, Ferenczi. One of Freud's former patients, Elma Palos, later commenced therapy with Ferenczi; at the same time, her mother, Gisella Palos, was romantically involved with Ferenczi and eventually would become his wife.14 However, while treating Elma, Ferenczi became sexually involved with her as well as with her mother.15 While Freud had warned Ferenczi that he should avoid sexual activity with patients, with regard to his involvement with Elma and Giselle Palos, he also reportedly tried "to influence [Ferenczi's] choice of a mate."16

Even in his criticisms of Ferenczi's sexual entanglements with patients, Freud appears to have dismissed such sexual contact as "old misdemeanors."17 For his part, Ferenczi contended that those "old misdemeanors," which he characterized as "[t]he sins of youth," "can make a man wiser . . . . Now, I believe, I am capable of creating a mild, passion-free atmosphere, suitable for bringing forth even that which had been previously hidden."18

Several years earlier, Carl Jung had likewise become sexually involved with a patient. Sabina Spielrein, a 19-year-old medical student in "desperate mental distress," first came to Jung for analysis and therapy in 1905.19 Jung treated her over the next four years � and according to Gay, "[took] advantage of her dependency [and] made her his mistress."20 At one point, Jung wrote to Freud that "the situation had become so tense that the continued preservation of the relationship could be rounded out only by sexual acts."21 In other correspondence, he justified this sexual relationship by alleging that Spielrein was "systematically planning [his] seduction."22 Freud responded in kind: Writing of "[t]he way these women manage to charm us with every conceivable psychic perfection until they have attained their purpose," he excused Jung's conduct by faulting Spielrein.23

However, Jung's exploitation of his young patient did not stop with the affair: Rumors of the affair began to circulate, and Jung assumed that Spielrein was responsible. He later admitted: "Caught in my delusion that I was the victim of the sexual wiles of my patient, I wrote to her mother that I was not the gratifier of her daughter's sexual desires but merely her doctor, and that she should free me from her."24 In that same letter, he justified shifting from a doctor/patient to a social relationship "the more easily" because he had not been charging Spielrein professional fees.25 He then suggested that if his patient wanted him "to adhere strictly to [his] role as doctor," he was entitled to receive "a fee as suitable recompense for [his] trouble."26 As the situation worsened, Jung even asked Freud to intervene by writing to Spielrein's mother. Freud did so, and subsequently advised Jung not to blame himself for the mess, asserting, "[I]t was not your doing but hers."27

In discussing Jung's affair, Bettelheim later argued that, regardless of whether Jung behaved badly toward Spielrein, the "most important consequence" of Jung's relationship with her was that "he cured her."28 Bettelheim wrote: "True, Spielrein paid a very high price in unhappiness, confusion, and disillusion for the particular way in which she got cured, but then this often true for mental patients who are as sick as she was."29 However, after Bettelheim's death, his former patients and staff went public with accounts of "emotional and psychological abuse" at his hands.30

Freud biographer Ernest Jones also allegedly became sexually involved with a patient while on the faculty at the University of Toronto.31 Jones denied the allegations and went on the offensive, accusing the former patient and her medical doctor, also a woman, of engaging in a lesbian relationship themselves.32 "However, his defense was seriously undermined by revelations that he had attempted to pay money to the former patient to stay quiet about the matter."33

Psychoanalyst J.L. McCartney also apparently acknowledged engaging in sexual activity with female patients, although he used the deceptively benign term "overt transference" to describe his conduct.34 According to Schoener, McCartney admitted to such activity with "30% of his female patients, including undressing, genital touch, or sexual intercourse with 10%."35 Despite the fact that none of his patients filed a formal complaint, his tactics led the American Psychiatric Association to expel him.36

Analyst Margaret Mahler wrote of her own experience in training with Aichhorn, which she described as "far from 'classical.'"37 Mahler seemed to recognize that the fact she and Aichhorn were "very much in love with one another" was not particularly healthy:

In taking me under his wing and vowing to see me restored to the good graces of the Viennese psycholanalytic establishment, Aichhorn only buttressed my self-image as an "exception" . . . . Under Aichhorn's analytic care, I became a sort of Cinderella, the love object of a beautiful Prince (Aichhorn) who would win me the favor of a beautiful stepmother (Mrs. Deutsch). At the same time, my analytic treatment with him simply recapitulated my [O]edipal situation all over again . . . .38

Women were not exclusively victims, however: Some of the early female professionals in the mental health field likewise engaged in sexual activity with patients. Karen Horney reportedly was involved in what she characterized as "restricted relationship[s]" with patients.39 Her biographer, Susan Quinn, describes a "romantic relationship" between Horney and a young male patient, which Quinn appears to rationalize as an example of "old impulsive ways [that] survived into middle age."40 Horney allegedly became sexually involved with patients and students with some regularity; Paris reports that one patient, Leon Saul, "was traumatized by the experience."41 Schoener describes Horney as having regularly "played favorites" with her lovers, temporarily elevating one to favored status, then suddenly replacing him with another.42 Melanie Klein engaged in a variety of boundary violations: She invited patients to go "on holiday" with her; she would then conduct "therapy sessions" in her hotel room, with the patient lying on Klein's own bed.43 Klein is also known for having "psychoanalyzed her own children."44 Freida Fromm-Reichmann acknowledged engaging in a romantic relationship with a patient: her future husband, Erich Fromm. According to Schoener, Fromm-Reichmann congratulated herself for having the "common sense" to end the professional/patient relationship before they married.45


Despite (or perhaps because of) these transgressions by the pioneers of psychotherapy, no serious, systematic study of therapist sexual misconduct was undertaken until the 1970s.46 Indeed, the profession's attitude was one of such carefully cultivated avoidance that, as Pope notes, it was possible as recently as 1977 to describe professional sexual misconduct as "the problem with no name."47 Pope also reports that a number of attempts in the 1960s to study the problem went nowhere. For example, after suggesting such a study, Greenwald reported: "I just raised the questions . . . intending, as a clinical psychologist, that it be studied like any other phenomenon. And just for raising the question, some members circulated a petition that I should be expelled from the Psychological Association."48

According to Pope, Forer "undertook the first systematic study of the phenomenon in the United States" in the late 1960s: He surveyed the members of the Los Angeles County Psychological Association and the Los Angeles Society of Clinical Psychiatrists, with both groups' approval.49 However, the survey results showed a "relatively high rate" of professional/patient sexual contact, and the organizations suppressed the findings.50 In 1968, after reviewing the results, the groups' leadership "prohibit[ed] disclosing the findings either at professional conventions or through journal publication . . ., maintaining that it was 'not in the best interests of psychology to present it publicly.'"51

Pope also cites Dahlberg's "Sexual Contact Between Patient and Professional," noting that the psychiatrist encountered difficulty in getting it published.52 In the article's introduction, Dahlberg wrote: I have had trouble getting this paper accepted by larger organizations where I had less, but still not inconsiderable, influence. I was told that it was too controversial."53

However, Pope's description of other early "research" into professional sexual misconduct is troubling for other reasons. He cites as an article appearing in a 1971 issue of American Psychologist as the first to attempt to draw conclusions from "systematically collected data regarding the phenomenon."54 The article, by Brownfain, drew on insurance data from a decade of malpractice cases. Brownfain, like his predecessors, blamed female patients:

[T]he greatest number of all malpractice actions are brought by women who lead lives of very quiet desperation, who form close attachments to their mental health professionals, who feel rejected or spurned when they discover that relations are maintained on a formal and professional level, and who then react with allegations of sexual improprieties.55

Pope adds that Brownfain "mentioned no case during this 10-year period in which a patient's claims of sexual intimacies with her therapist were considered to be truthful."56

A 1973 study of male members of the Los Angeles County Medical Society found that some 10% of the psychiatrists surveyed had engaged in sexual activity with at least one patient.57 Four years later, Holroyd and Brodsky published in American Journal of Psychiatry the results of what Pope calls "the first national incidence study of professional-patient sex."58 With a return rate of 70%, the results of their research showed that "11% of the male mental health professionals and 2% of the female mental health professionals reported engaging in erotic contact with at least one patient and that 80% of those mental health professionals did so with more than one patient."59 Pope has labeled the Holroyd/Brodsky study "a landmark in the profession's acknowledgment that a number of mental health professionals were actually engaging in sexual intimacies with their patients."60

Such research also made clear, as Pope notes, that

Sexually abusive psychomental health professionals cannot be dismissed as the most marginal members of the profession. They are well represented among the most prominent and respected mental health professionals. Cases involving therapists publicly reported to have engaged in sexual behaviors with their patients have included those who have served as faculty at the most prestigious universities (including those with APA-approved training programs), psychology licensing board chair, state psychological association ethics committee chair, psychoanalytic training institute director, state psychiatric association president, state association of marriage and family mental health professionals president, prominent media psychologist, chief psychiatrist at a prominent psychiatric hospital, and chief psychiatrist at a state correctional facility (citations omitted).61


Offender Types

Assalian and Ravart agree with other experts that "[t]here is nothing new about sexual contact between health and mental health professionals and their patients."62 They cite the estimate of Abel, et al., that "half of all psychiatrists will evaluate and/or treat at least one person who was sexually exploited by a previous professional or other health or helping professional."63 Assalian and Ravart's work describes three categories of professionals who commit sexual misconduct: the "denier," the "rationalizer," and the "repentant."64 Such professionals' susceptibility to treatment, they argue, varies by category: They suggest use of instruments such as the Minnesota Multiphasic Personality Inventory (MMPI) to diagnose "deniers" and prevent them from "gaming the system," in effect.65 While they contend that "rationalizers strongly tend to minimize their actions and avoid full responsibility for their behaviour," they may also "show remorse and victim empathy," and "are treatable."66 However, they find that those in "the repentant group are the best treatment candidates. They take full responsibility for their behaviour and present themselves as sincerely regretful and remorseful, and are willing to involve themselves in therapy to understand their behaviour and change."67

Assalian and Ravart further classify offending professionals into "'affective' and 'predatory' types."68 The conduct of "affective" types, they argue, tends to stem from "unresolved emotional problems," such as mishandling of countertransference, depression, substance abuse, and feelings like resentment or abandonment.69 "Predatory" types, on the other hand, tend to present with "major personality disorder[s]" that may include psychopathic, narcissistic, or borderline features, among others.70 They contend that sexual misconduct by predatory offenders "is part of a lifestyle of using and exploiting others to meet one's needs," making them "more dangerous and at risk for reoffending."71

Within the affective and predatory categories, Assalian and Ravart have identified seven subtypes: incidental, interpersonal, narcissistic, compensatory, exploitive, angry, and sadistic. They characterize each as follows:

§ Incidental offenders "have impulsively behaved in a sexually inappropriate manner and their [sic] is only one known occurrence of the behaviour."72
§ Interpersonal offenders "are motivated to establish a close, intimate and long-lasting relationship. The investment in the relationship seems genuine, without clear signs of exploitation or abuse."73
§ Narcissistic offenders "may or may not be seeking a close, emotional relationship," but "their behaviour more strongly suggests strong needs for attachment, admiration, approval, validation, love and attention."74
§ Compensatory offenders "are more opportunistic and impulsive," and "basically offend to fulfill unmet needs for physical closeness, affection and sexual relations."75
§ Exploitive offenders "purposely use their position of authority and power to achieve their behaviour and fulfill their needs," including "control, power, [and] domination."76
§ Angry offenders "persistently sexually harass and offend against women," "evidenc[ing] strong feelings of hostility, rage and resentment toward women."77
§ Sadistic offenders "enjoy using their power and authority to control and dominate the victim," and get "marked pleasure out of being cruel and provoking suffer[ing]."78

Assalian and Ravart are not the only experts to create a classification system for mental health professionals who commit sexual misconduct.

A 1968 article citing a sample from Australia and New Zealand grouped offenders as follows: "11% were psychotic, 11% were alcoholic, 6% were neurotic, and 44% had character disorders."79 Gabbard grouped offenders into four categories: Those with "psychotic disorders"; those with "predatory psychopathy and paraphilias"; those who engaged in "masochistic surrender"; and those he described as "lovesick."80 The last category, the "lovesick" offender, is described as encompassing such traits as anger; unresolved issues like denial, repression, or incestuous or other longings; or unrealistic fantasies. Those in the "masochistic surrender" category have "masochistic or self-destructive tendencies," and "allow clients to intimidate or control them."81 According to Schoener, Gabbard's theory regards therapists in these two categories as treatable and possibly rehabilitatable. On the other hand, "[t]he psychotics and the predators are not deemed good subjects for rehabilitation," at least with regard to the possibility of returning to practice.82

Irons focuses his system of classification on addiction. Evoking Jung, he divides offenders into what he calls "archetypal categories"83:

§ "The na�ve prince," who "tends to develop 'special relationships' with certain types of clients [and] blurs boundaries"84;
§ "The wounded warrior," who is "overly dependent" on his professional identity, and regards involvement with clients as a "temporary escape" from the feeling of being "overwhelmed by demands"85;
§ "The self-serving martyr," whose "work is primary" and who is in the later half of his career, and who tends to be "Withdrawn, angry, and resentful"86;
§ "The false lover," who tends to be a "risk-taker," and who 'enjoys living on the edge [and] the 'thrill of the chase'"87;
§ "The dark king," who tends to e "charming" but "manipulative," and who engages in "sexual exploitation as an expression of power"88; and
§ "The wild card," who "has major Axis I disorder" and "significant difficulties in functioning" both professionally and personally89.

In an 88-person sample, Irons and Schneider found that five of the six "archetypal categories" comprised sex addicts; only the group labeled "na�ve prince" included no one they classified as a sex addict.90 Of the others, they classified 14.8% of those in the "wild card" category, 37% of those labeled "wounded warriors," 62% of the "self-serving martyrs," 91% of the "dark kings," and 94% of those labeled "false lovers" as sex addicts.91 Schoener reports that Irons has continued to refine his classification systems, and has now "developed a typology for hostile and aggressive professionals."92

Schoener himself, in collaboration with Gonsiorek, has developed a classification system. He notes that, "[w]hile this assessment methodology does not focus on sorting offenders per se, the categories were created to serve an educational purpose."93 Their methodology comprises six categories of personality types, the first of which includes two subcategories:

§ "Psychotic [and] severe borderlines," including:
§ "Manic disorders"; and
§ "Organic or toxic psychoses";
§ "Sociopathic and severe narcissistic personality disorders";
§ "Sexual impulse control disorders";
§ "Chronic neurotic [and] isolated";
§ "Situational offenders"; and
§ "Na�ve."94

Gonsiorek has also refined this classification system, defining these categories more specifically. He categorizes offenders as follows:

§ "na�ve";
§ "normal and/or mildly neurotic";
§ "severely neurotic and/or socially isolated";
§ "impulsive character disorders";
§ "sociopathic or narcissistic character disorders";
§ psychotics";
§ "'classic' sex offenders";
§ "medically disabled"; and
§ "masochistic/self-defeating individuals."95

Schoener and Gonsiorek describe their system as "a rule-out approach":

[T]he assessor attempts to rule out serious pathologies (categories 1, 2, [and] 3). If the offender is probably in categories 4, 5 or 6 then the dynamics of the situation may be of importance. The assessment involves a parallel assessment of both professional history and functioning and personal history and functioning.96

They describe their system as "unique" in its "emphasis in attempting to gain detailed background data through an interview of the victim or complainant."97 This approach, they contend, improves their understanding of the circumstances surrounding an alleged incident in three ways:

  1. "It makes it less likely that one can be deceived about what happened;
  2. "Even when the professional is trying to tell the truth, defensiveness may lead to denial or minimization;
  3. "Even with a very cooperative subject the person being evaluated only knows part of the story of what happened � each person stores the information differently."98

Norris, Gutheil, and Strasburger argue that groups of risk factors exist for both mental health professionals and patients that make it more likely that professional sexual misconduct will occur. (Patient risk factors are discussed in later in this section.) They divide professional risk factors into nine groups:

§ "Life crises": Although relatively new practitioners can also be vulnerable to boundary violations, more frequently, "midlife and late-life crises in mental health professionals' development appear repeatedly as precipitants of boundary problems with patients." Norris, et al., cite "the effects of aging, career disappointment or unfulfilled hopes, marital conflict or disaffection, and similar common stress points" as typical triggers.99
§ "Transitions": "Retirement, job loss, job change � even promotion � or job transfer" may serve as a trigger "that makes a professional susceptible to crossing the line with patients." Fiscal difficulties may likewise trigger non-sexual boundary violations involving finances.100
§ "Illness of the professional": Although they describe this context as "relatively underexplored," Norris, et al., report that "[t]herapists' illness appears to increase their vulnerability to turning inappropriately to a patient for solace and support." Related factors in this category include "death anxiety" and "fears of mortality."101
§ "Loneliness and the impulse to confide": The most common manifestation in this category is inappropriate self-disclosure. Norris, et al., note that such impulses may arise when a "professional encounter[s] some life difficulty and seek[s] a 'sympathetic ear,'" or when "the otherwise laudable desire to find common ground with a patient . . . miscarry[ies]." They report: "In part, mental health professionals' uncertainty stems from the empirical observation that self-disclosure is often the final boundary excursion before sexual relations, even though self-disclosure does not in itself lead inevitably to that outcome." They also warn that professionals may confuse countertransference with "honesty," leading to inappropriate self-disclosure.102
§ "Idealization and the 'special patient'": Some "early harbingers" of boundary violations include mishandling of "countertransference attitudes," including the tendency to regard a patient as somehow "special." Norris, et al., cite as examples of characteristics that lead mental health professionals to idealize their patients "beauty, youth, intellect, fame or status in the community, or therapeutic challenge." Such idealization may be "highly threatening" to the professional, "creating anxiety that may distort clinical judgment." Mental health professionals may even handle their treatment of such patients differently: scheduling excessive or excessively long sessions, especially at the end of the day; giving permission to run up a high unpaid balance; making special allowances for the patient; and having nonemergency meetings outside the office. Mental health professionals seeking consultation on such cases often begin the request with[:] "I don't usually do this with my patients, but in this case . . . ."103
§ "Pride, shame, and envy": "[A] pitfall that is especially relevant to very senior mental health professionals, who are often sought out for consultation, is their inclination to brush aside the need to seek consultation themselves." Norris, et al., report that one professional "resisted undergoing such a review on the grounds that he knew the consultant would tell him the relationship with the patient was wrong and should be terminated. They also argue that, "[i]n its extreme form, this narcissistic difficulty supports the belief that one is above the law and that the usual rules do not apply."104
§ "Problems with limit[-]setting": Regardless of whether a patient attempts to transgress appropriate boundaries, it is the job of the professional to ensure that professional limits are maintained. Norris, et al., report that "[a] common barrier to appropriate limit[-]setting is the professional's countertransference conflicts about aggression or sadism when the prospect of the patient's expected distress, discomfort, or frustration at being told 'no' is intolerable to the professional." Such problems often arise in the context of treating a patient who displays "unrestrained rage."105
§ "'Small town' issues": In this context, the label "small town" may refer to any isolated or insular environment: an actual community with a small population; certain types of institutions (e.g., schools); or specific "subcultures" (Norris, et al., cite as an example urban gay and lesbian "subcultures"). Such small groups make it likely that professional and patient will come into contact with each other in social (or at least non-professional) settings.106
§ "Denial": Norris, et al., report that "denial about early problematic situations, which can lead to their evolving into full-fledged boundary disasters, is another common factor in clinical misadventures." This is especially true, they argue, "with more seasoned and experienced mental health professionals." Professionals who deny that the problem exists may engage in "[e]vasion, externalization, and rationalization to help maintain the pretense that boundary violations are not serious, not harmful, or even not occurring at all."107

Regardless of the classification model used to label offenders, Schoener notes that certain aspects are common to each. One such aspect is "stress[ing] the importance of clearly defining the supervision" of an offender.108 "It is critical," he argues, "that [the supervision's] goals and requirements be spelled out in detail, and that case consultation (voluntary sharing of clinical material, often termed 'supervision') be differentiated from true supervision wherein the supervisor is legally responsible for the practice oversight."109


Pope and Bouhoutsos have also created a classification system, but rather than focusing directly on types of offenders, they instead identify ten "scenarios" in which professional sexual misconduct tends to arise.110 Their system labels these scenarios as follows:

§ "Role Trading": The professional "becomes the 'patient,'" and the "treatment" focuses on his or her "wants and needs."111
§ "Sex Therapy": The professional "fraudulently presents professional-client sexual intimacy as a valid" course of treatment.112
§ "As If . . .": The professional "treats positive transference as if" it were naturally-occurring, genuine feelings rather than a result of the dynamics of therapy.113
§ "Svengali": The professional "creates and exploits an exaggerated dependence on the part of the client."114
§ "Drugs": The professional uses drugs or alcohol "as part of the seduction."115
§ "Rape": The professional "uses physical force, threats, and/or intimidation."116
§ "'True Love'": The professional "discount[s] the professional nature" of the professional/patient relationship, rationalizing it as "true love."117
§ "It Just Got Out of Hand": The professional mishandles transference and/or countertransference and the "emotional closeness" and other feelings that develop as a result.118
§ "Time Out": The professional disregards the fact that "the therapeutic relationship does not cease to exist" outside of the office.119
§ "Hold Me": The professional "exploits the client's desire for nonerotic physical contact," as well as any "difficulties" the patient may have in "distinguishing between erotic and nonerotic contact."120

However, the approach Pope and Bouhoutsos use makes clear that sexual contact between professional and patient does not necessarily occur only with a particular "type" of offender. Professional sexual misconduct does not require "a scheming, malicious professional overpowering � perhaps by physical force � a reluctant client."121 Rather, particular circumstances (or combinations of circumstances), coupled with a lack of preparation or an unwillingness to face therapeutic realities and professional responsibilities, may be at the root of many occurrences of professional/patient sexual contact, regardless of the professional's personality type.

Pope also cites a number of "contributing factors" that make it possible for incidents of professional/patient sexual contact to occur. These factors, he argues largely fall into three broad categories: "varieties of sexual involvement"; "training issues"; and "denial."122 Each of these factors is discussed in the section entitled "Prevention," below.


Finally, some experts classify incidents of professional sexual misconduct according to traits that appear to be common to particularly vulnerable victims. Citing work by Simon and by Pope and Bouhoutsos, Kuniholm and Church report that certain characteristics of vulnerability have been identified as placing the patient at greater risk of exploitation:

§ depressed patients or patients who have lost a loved one;
§ dependent personalities;
§ patients who have a history of child sexual and physical abuse;
§ patients with serious psychiatric illness or substance abuse problems;
§ patients with impaired mental and personality function (low self-esteem, dependent)
§ difficulty with reality, self-destructive, or impulsive;
§ physically attractive patients with low self-esteem;
§ patients with low intelligence; [and]
§ patients with a history of chronic illness as children.123

Norris, et al., classify patient victims into six more formal categories. These include:

§ "Enmeshment": Some patients "may seek dependency rather than autonomy" and look for a "protective" professional. During the treatment, the result can become an "intensely enmeshed, symbiotic relatedness," which makes it difficult or impossible for the patient to terminate either the sexual or the therapeutic relationship, or to report the boundary violation(s) to appropriate authorities.124
§ "Changing roles: from victim to actor": Due to transference, a patient sometimes "imbues the professional with healing powers and intent." Such a patient is unlikely to be assertive enough to challenge the professional�s prescribed course of treatment, even when that "treatment" includes sexual contact.125
§ "Retraumatization": This poses a particular problem for patients who seek therapy for earlier traumatic experiences (e.g., child abuse, etc.). One expert describes such patients' situation as "sitting duck syndrome." According to Norris, et al., "boundary violations and even outright abuse by the professional may recapitulate [the patient's traumatic] early experience, including felt helplessness to enact any escape or remedy."126
§ "Shame and self-blame": Despite the fact that professional/patient sexual contact is by definition the fault of the professional, patients who are victims of such misconduct often blame themselves. However, they blame themselves not only for "failure to know better, failure to recognize abuse," "having made foolish choices," etc., but for "causing the professional to lose control or cross the line," for "being 'too seductive,'" or for "bear[ing] full responsibility for the [professional's] conduct."127
§ "'True love'": Some patients have few or no personal relationships in their lives, leading them to focus too intensely on the therapeutic relationship. "The relationship with the professional may appear the only or the last chance for 'true love' in the patient's sphere."128
§ "Dependency": According to Norris, et al., dependency provides at least part of the context for most boundary violations. In some cases, what appears to be a boundary violation by the patient may in fact mask other problems: They recount a patient who, after entering a nursing home, began to call [her professional] 'honey' and 'dear'" rather than by his title and touched him repeatedly. When the professional told her of his concerns about her behavior, she began "sobbing that she had lost her memory and could not recall his name."129


According to Kuniholm and Church:

Sexual contact is not necessarily a prerequisite for a malpractice claim based on inappropriate boundary violations by a professional. It is generally accepted among psychomental health professionals that interaction between patient and professional that transgresses professional boundaries is inappropriate and may be harmful even without blatant sexual contact.130

Bisbing notes that many licensees engage in common practices that may actually be boundary violations themselves. Such practices, when taken individually, usually do not amount to professional misconduct; however, they may provide evidence of a pattern or practice that support later allegations of serious misconduct, including sexual misconduct. Such warning signs include:

§ Changing procedures for a patient, including extending appointments, reducing or waiving fees, etc.;
§ Mishandling or not handling "inappropriate client behavior" (e.g., missing appointments, not paying fees, etc.);
§ Inappropriate self-disclosure;
§ Attempts to influence the patient's "philosophical or political positions";
§ Nonprofessional, out-of-office contact with the patient (i.e., for non-therapeutic purposes); and
§ Failure to "terminate the relationship when the [patient] no longer needs therapy.131

Simon lists 29 separate "precursor boundary violations," any or all of which may signal impending professional/patient sexual contact. They include:

  1. Failing to maintain professional neutrality and treatment boundaries;
  2. Failure to obtain a proper psychiatric history;
  3. Failure to properly evaluate a vulnerable patient;
  4. Failure to manage the transference-countertransference;
  5. Failure to diagnose a dependent personality disorder;
  6. Failure to render appropriate treatment;
  7. Improper use of psychotropic drugs;
  8. Using alcohol with the patient;
  9. Contributing to the patient�s drug and alcohol use;
  10. Failure to monitor drug therapy;
  11. Failure to consult;
  12. Failure to refer;
  13. Treating outside of the psychiatrist�s expertise;
  14. Infantilizing the patient;
  15. Abandoning the patient . . . ;
  16. Confidentiality violations;
  17. Deception;
  18. Exploitative use of hypnosis;
  19. Improper use of somatic therapies;
  20. Encouraging acting out;
  21. Use of drugs with patient;
  22. Using patients to perform work for the professional;
  23. Failure to obtain informed consent to "innovative procedures";
  24. Failure to set limits on the patient�s behavior;
  25. Advising against education, training, and professional advancement;
  26. Exploiting the patient�s financial assets;
  27. Use of regressive techniques;
  28. Terrorizing the patient; [and]
  29. Instructing patients to engage in potentially harmful activities outside of therapy.132

Such "lesser" boundary violations may reduce inhibitions and set the stage for greater ethical lapses. Moreover, if a professional has engaged in such practices, a patient's disciplinary complaints or malpractice claims for sexual misconduct are more likely to succeed: Kuniholm and Church report that "experts observe that claims against mental health professionals for sex abuse are generally more believable in the context of other boundary violations."133


The harm caused by professional sexual misconduct falls into different categories. The most obvious is psychological and emotional harm, which may take a variety of forms, discussed in this subsection. (A second form of harm, breach of fiduciary duty, is reviewed in the ensuing subsection.)

Pope argues that "perhaps the greatest part of the problem [of professional sexual misconduct] is that most mental health professionals are unaware � in any specific and emotionally immediate way � of the damage that therapist-client sexual intimacy causes to the client."134 Despite the fact that mental health professionals realize that such behavior entails risk to themselves, both personally and professionally, and "violat[es] ethical, legal, clinical, and professional standards," many professionals "tend to be unaware of the devastating ways in which they are violating the client's welfare, trust, sense of identity, and potential for future development."135

Despite this supposed lack of awareness, however, studies conducted over the last 35 years have amply demonstrated the harmful effects of sexual contact between mental health professionals and patients. In 1980, Durre published a study, incorporating research dating back 11 years, that reviewed the effects of "amatory and sexual interaction between client and professional."136 She found that such interaction "dooms the potential for successful therapy and is detrimental if not devastating to the client."137 The array of negative effects that she reported included "many instances of suicide attempts, severe depressions (some lasting months), mental hospitalizations, shock treatment, and separations or divorces from husbands. . . . Women reported being fired from or having to leave their jobs because of pressure and ineffectual working habits caused by their depression, crying spells, anger, and anxiety."138

Another study three years later analyzed responses from mental health professionals treating patients who had engaged in sexual contact with previous mental health professionals. The authors concluded that, in those cases that had been reported, 90% of the clients suffered harmful effects.139 Such effects included:

  • "inability to trust";
  • "hesitation about seeking further help from health (or other) professionals";
  • "severe depressions";
  • "hospitalizations"; and
  • "suicide."140

A well-known 1991 study by Pope and Vetter likewise concluded that about 90% of patients who became sexually involved with a therapist were harmed by the contact.141 Perhaps more surprisingly, Pope and Vetter also reported that 80% of such patients were harmed even when the sexual relationship began only after the therapeutic relationship had been terminated.142 "About 11% required hospitalization; 14% attempted suicide; and 1% committed suicide."143 And of those patients reporting harmful effects, "only 17% recovered fully," by their own assessments.144

The same study also identified what its authors described as the "10 of the most common reactions that are frequently associated with therapist-patient sex."145 It is significant that none of these reactions is healthy or useful; the best that may be said of them is that their effects are negative. Pope and Vetter define them as follows:

  • "Ambivalence": Patients suffering from ambivalence often become "psychologically paralyzed, unable to make much progress in either direction."146 They note that "[a]mbivalence of this kind is often found among those who have experienced other forms of abuse,"147 raising the possibility that mental health professionals who engage in sexual misconduct frequently target patients whose histories of prior abuse make them particularly vulnerable.
  • "Cognitive Dysfunction": These problems may include "interference with attention, memory, and concentration. The flow of experience will often been interrupted by unbidden thoughts, intrusive images, flashbacks, memory fragments, or nightmares."148 Pope and Vetter compare the results to post-traumatic stress disorder, noting that such cognitive dysfunction may impair the patient's ability to engage in crucial day-to-day tasks: "These cognitive impairments may interfere significantly with the person's ability to work, to participate in social activities, and sometimes even to carry out the most routine aspects of self-care."149 "Emotional Lability": Patients suffering from these effects may find that "intense emotions may erupt suddenly and without seeming cause, as if they were completely unrelated to the current situation. The emotional disconnect can be profound: a person can describe a wrenchingly sad event and burst out laughing, or talk about something funny or wonderful and begin sobbing."150

Pope and Vetter add that because "emotional lability can involve interrupting the flow of experience with extreme, unpredictable, rapidly shifting feelings," it can leave a patient feeling "helpless," "out of control," or "at the mercy of a powerful, intrusive enemy, an occupying force."151 "Emptiness and Isolation": Patients may describe "emptiness" as though "their sense of self had been hollowed out, permanently taken away from them."152 According to Pope and Vetter, such feelings are often accompanied by a sense of "isolation," leaving patients feeling as though they are "no longer members of society, cut off forever from feeling a social bond with other people."153 Elma Palos, Ferenczi's patient and sexual partner, and the daughter of the woman who would eventually become Ferenczi's wife, wrote: "This being alone that now awaits me will be stronger than I; I feel almost as if everything will freeze inside me . . . . If I am alone, I will cease to exist."154 "Impaired Ability to Trust": As Pope and Vetter note, trust is the linchpin of the therapeutic relationship, a necessary condition for successful treatment:

People may walk into the offices of complete strangers and, if the stranger is a therapist, begin talking about thoughts, feelings, and impulses that they would reveal literally to no one else. Every state, appreciating the exceptionally sensitive nature of the "secrets" that patients may entrust to their therapists, have established in their laws a formal therapist-patient privilege. The ethics codes of all major mental health professions recognize the therapist's responsibility to maintain confidentiality when patients trust the therapist to the extent that they disclose personal information in therapy. Beyond investing therapists with trust regarding their own privacy, confidentiality, and "secrets," patients trust therapists to act in a way consistent with patient well-fare and to avoid intentionally engaging in any behavior that not only is unethical and prohibited by law but also places the patient at so needless a risk for harm.155
"Guilt": Patients who become sexually involved with their therapist "may become flooded with persistent, irrational guilt. The guilt is irrational because it is in all instances the professional's responsibility to avoid sexually abusing a patient."156 According to Pope and Vetter, "gender effects in this area are significant. It is possible that gender may be associated with the ways in which this irrational guilt develops and is sustained."157 "Increased Suicidal Risk": Pope and Vetter cite studies demonstrating that patients who have engaged in sexual contact with therapists have significantly increased risk of both suicide attempts and completed suicides when compared with the general population and other groups of patients. The research published in peer-reviewed journals suggests that about 14% will make at least one attempt at suicide and that about one in every hundred patients who have been sexually involved with a professional commit suicide.158 "Role Reversal and Boundary Confusion": Therapist/patient sexual relationships turn the therapeutic process upside down:
[T]he sessions and the relationship are no longer about the therapist being of use to the patient in service of the patient's welfare but rather the patient being of use to the therapist in service of the professional's sexual gratification. The fundamental clinical, ethical, and legal boundary that would prevent a professional from turning patients into sources for the professional of sexual pleasure, experimentation, relief, variety, or control is violated.159

Significantly, Pope and Vetter note that the harm to a patient from therapist sexual misconduct can be long-term:

The negative effects of the therapist's violation of boundaries and reversal of roles can generalize beyond the therapy and persist long after the termination of the therapy and the sexual relationship. The roles and boundaries that people use to define, mediate, and protect the self may become not only useless for the patient but also self-defeating and self-destructive.160
  • "Sexual Confusion": According to Pope and Vetter, it is unsurprising that patients who have been sexually involved with their therapists "wind up deeply confused about their own sexuality." This can include "significant confusion over [patients'] 'true' sexual orientation." But harmful effects can extend beyond issues of sexual identity: According to one researcher, "female patients who had been sexually involved with a prior professional 'expressed a cautiousness or even disgust with their sexual impulses and behavior as a result of sexual involvement with their previous mental health professionals.'" Pope and Vetter contend that professional/patient sexual involvement "leaves some patients believing that their only worth as human beings is to provide sexual gratification to others. Some engage in sex with others on an almost obsessional basis as re-enactment of the sexual relationship with the professional." Finally, they describe an array of other sexual dysfunctions that may result:
    Especially when the patient is experiencing feelings of emptiness and isolation, the specific sexual activities previously experienced with the exploitive professional--often re-enacted in the midst of flashbacks--may represent an attempt to fill up the self and break through the isolation. For still other patients, sex becomes associated with feelings of irrational guilt. They may engage in demeaning, degrading, joyless, painful, harmful, or dangerous sexual activities that seem to express the conviction: "I am guilty, worthless, and deserve this." Some may become so confused about sexuality that they begin labeling a variety of feelings and impulses as "sexual." They may, for example, say that they are sexually aroused whenever they are feeling intensely angry, depressed, anxious, or afraid.
  • "Suppressed Anger": It is similarly unsurprising that patients who are victims of professional sexual misconduct often become angry. However, Pope and Vetter report that such patients often suppress that anger, which may lead to greater harm yet:
    [I]t may be difficult for [such patients] to experience the anger directly. Some may feel only numbness in situations that, according to them, would have previously evoked anger. Some may turn the anger inward, becoming enraged at themselves. The anger directed inward may lead to self-loathing, self-punishment, and self-destructive behaviors including suicide.161

An essential aspect of these results is that they were provided by therapist who have treated patients who had been sexually involved with a previous professional. And despite the frequency both of therapist sexual misconduct and of denials that such conduct is harmful, these results suggest that most professionals do indeed recognize that such sexual contact does indeed cause harm.

Training and Practice Issues

Data from other studies also demonstrate that many professinals experience a significant degree of discomfort when sexual issues arise during the therapeutic relationship. Some experts suggest that this discomfort may lead mental health professionals to avoid certain patients, issues, or courses of treatment; to mishandle non-sexual aspects of treatment; to engage in sexual contact; and to result in inadequate professional training and resources with regard to sexual boundaries and issues.

Anecdotal evidence and data from a number of studies appear to support the hypothesis of "countertransference anxieties," as Tower labels this phenomenon162: For example, in 1950, Thompson noted that "many of Freud's pupils became afraid to be simply human and show the ordinary friendliness and interest a therapist customarily feels for a patient."163 In 1965, Fine discussed the potential for professional sexual discomfort to lead to misdiagnoses.164 A 1976 study "suggested that female therapists actively avoid treating attractive male clients."165 According to the results of Schover's 1981 study, male therapists "react[ed] 'with anxiety and verbal avoidance of the material' when a female client discussed sexual material."166 And Searles wrote of his own "considerable anxiety, guilt, and embarrassment when he experienced sexual reactions during treatment of patients."167

Age and Gender Disparities

As noted above, the Pope/Vetter study raises troubling questions about the extent to which mental health professionals who engage in sexual misconduct target vulnerable patients. Of the 958 patients surveyed, about 5% "were minors at the time of the sexual involvement with the mental health professionals."168 Prior to becoming sexually involved with a professional, about 10% of the patients surveyed had been raped; roughly one-third of respondents had been victims of "incest or other child sex abuse."169

Moreover, the study's use of the term "minor" to describe underage victims of professional sexual misconduct is inapt. The word "minor" may imply an older adolescent, but research indicates that, particularly with regard to female child victims, most are much younger:

One national study of professional-client sex involving minors found that the majority were female. The average age of a minor female client who had been sexually involved with a professional was 7. They ranged in age from 3 years old to 17. The average age of a minor male client who had been sexually involved with a professional was 12. The boys in this study ranged in age from 7 to 16.170

The Pope/Vetter study described as "exceptional"171 its findings on gender differences. They reported:

Data from each research approach suggest that offending mental health professionals are overwhelmingly (though not exclusively) male while exploited clients are overwhelmingly (though not exclusively) female. Each method of study has strengths and weaknesses, but in each, the number of male offenders exceeds the number of female offenders and the number of female victims exceeds the number of male victims, even after the over-all proportions of male and female mental health professionals and of male and female clients have been taken into account. The extreme gender differences led UCLA professor Jean Holroyd, principal investigator of the first national study of therapist-patient sex, to write that 'sexual contact between therapist and patient is perhaps the quintessence of sex-biased therapeutic practice': female clients do not have equal access to non-abusive therapy. The following section reviews peer-reviewed findings representing 4 of the major methods of study.172

Psychiatrists Melanie Carr and Gail Robinson wrote: "[W]omen are often programmed to take responsibility for and feel guilty about relationships and their problems. The almost universal expression of guilt and shame expressed by women who have been sexually involved with their therapists is a testament to the power of this conditioning."173

Psychiatrist Virginia Davidson, analyzing the similarities between therapist-patient sex and rape, wrote:

"Women victims in both instances experience considerable guilt, risk loss of love and self-esteem, and often feel that they may have done something to "cause" the seduction. As with rape victims, women patients can expect to be blamed for the event and will have difficulty finding a sympathetic audience for their complaint. Added to these difficulties is the reality that each woman has consulted a therapist, thereby giving some evidence of psychological disequilibrium prior to the seduction. How the professional may use this information after the woman decides to discuss the situation with someone else can surely dissuade many women from revealing these experiences.174

Ultimately, however, licensees must understand that sexual contact with patients is harmful, whatever the patient's age or gender. As Pope notes: "Adults and children who are hurting, confused, vulnerable, sometimes desperate, who come for help and place their trusts in mental health professionals deserve more than to be used to gratify mental health professionals' sexual impulses."175


One of the most troubling aspects of the history of sexual misconduct by therapists involves the consequences of such ethical violations. Professional sexual misconduct produces negative effects not only for patients but for the professionals themselves. And while mental health professions have begun to acknowledge these consequences and deal with such violations accordingly, one disturbing practice still persists: attempts by the offenders (and their colleagues) to justify their conduct.

"Therapeutic Purposes"

Some professionals attempt to deny the harmful effects that sexual relationships have on patients by arguing that such relationships are for therapeutic purposes. What Pope characterizes as "[t]his strong and persistent denial" is what, he argues, "enables a number of senior and apparently respected psychologists to use 'client welfare' as a rationale for engaging in sex with the client."176 They may insist that therapist/patient sexual contact is a valid therapeutic tool, used "for the patient's own good" because the patient would not make therapeutic progress until he or she had engaged in a "healthy" sexual relationship.177

Another variation of this "defense" occurs when the patient is a student therapist. Attorney John D. Winer reports representing a client who, as a "therapist-in-training," was undergoing analysis as part of her educational requirements. The professional who handled her analysis engaged in sexual contact with her, and her psychological state subsequently deteriorated. When she complained, the professional threatened to sue her for defamation and breach of contract. He also attempted to raise as "defenses" the arguments that he "had the [patient's] best interests at heart," and that, regardless, she "was a sophisticated analyst-in-training and knew exactly what she was doing." Ultimately, the professional agreed to a $600,000 settlement.178

"Civil Disobedience"

As Pope notes, some studies appear to show that highly-educated licensees who have undergone psychotherapy personally may actually be more likely to engage in professional/patient sexual contact. He speculates:

It is worth considering whether high educational accomplishment and professional status may not only . . . help perpetrators to avoid detection but also contribute more generally to some psychologists' sense that they and their colleagues are (or should be) above the law and beyond accountability to which other less entitled citizens are subject, that they are too elite and knowledgeable to be subject to such restraints, and that even to call their behavior formally into question is an affront and may be unethical.179

It may be this attitude of special entitlement that leads some professionals to attempt to invoke a particularly insidious "defense" to engaging in sexual contact with patients: "civil disobedience." Some practitioners appear to extend the "civil disobedience" argument to boundary violations of all kinds, as well as other ethical and legal lapses. Pope argues: "For psychologists to arrogate this term to avoid accountability for engaging in sexual abuse, keeping secret the sexual abuse of others, committing perjury, faking professional credentials and obtaining expensive gifts from clients seems, at best, misguided."180

Use of such a mild term as "misguided" to describe such flagrantly unethical behavior is perhaps itself "misguided." As Pope and Bajt report elsewhere:

[I]n one study of exceptionally accomplished and respected senior psychologists, 9% of those who reported intentionally breaking formal legal and ethical standards revealed that the standard they violated was the prohibition against sex[,] and that this violation was an act of professional responsibility (i.e., that they engaged in sex with the client to promote "client welfare").181

"True Love"

A final "defense" that some licensees attempt to use to justify sexual relationships with clients is the supposed "'true love" exception." A professional who invokes this "exception" argues that his or her sexual relationship with a patient was a product of "true love," and thus does not fall into the ethically problematic category that other therapist/patient sexual contact does.

However, as attorney Brandt Caudill notes: "Under no circumstances should any professional seriously consider a sexual relationship with a present or former patient regardless of how long the interval has been between the termination of the patient and the beginning of the relationship."182 Such a supposed "exception" does not exist; invoking it certainly will not provide any legal protection for a professional accused of sexual misconduct. Caudill, who specializes in professional malpractice cases, particularly those involving sexual contact with patients, warns:

It is almost axiomatic that what is seen as true love at the time the relationship begins is seen as mishandling of transference after the relationship ends. . . . There is no true love exception, there never has been a true love exception, and, in all probability, there never will be a true love exception.183


Chapter 505184 of the Texas Occupations Code establishes the power and duties of the Texas State Board of Social Worker Examiners ("Board"). A division of the Texas Department of State Health Service�s Professional Licensing and Certification Unit, the Board is responsible for licensing and regulating licensed social workers ("LBSWs, LMSWs, LMSW-APs, and LCSWs") who practice in the state. Board rules help to protect and promote public health and welfare and establish and administer operational functions, complaint and enforcement procedures, and disciplinary processes.

Rule §781.405

Rule §781.405 of the Texas Administrative Code185 that governs licensed social workers addresses the issue of sexual misconduct. Irons defines professional sexual misconduct as �the overt or covert expression of erotic or romantic thoughts, feelings, or gestures by the professional toward the patient, that are sexual or may be reasonably construed by the patient as sexual.�186 This definition is consistent with that found in Rule §781.405, which addresses three specific types of sexual misconduct: "sexual contact"; "sexual exploitation"; and "therapeutic deception."187

Rule §781.405 forbids Texas licensed social workers from engaging in "sexual contact" with or "sexual exploitation" of any client, any former client, any intern whom the licensee supervises, or any student at an educational institution where the licensee provides professional or educational services.188 It also prohibits "therapeutic deception" of a client or former client.189 These terms are defined below in the ensuing subsections. It also imposes reporting and other duties upon licensees; these are also discussed below.

For purposes of professional liability and the potential for disciplinary sanctions, the circumstances surrounding such conduct are irrelevant. This is true regardless of whether the conduct occurred outside the context of professional appointment sessions or off the licensee's professional premises, or even if the conduct was "consensual." Such conduct violates state law and the social worker�s Code of Conduct, and thus may subject the licensee to potential professional, civil, and even criminal penalties.

While Licensees' compliance with state regulatory and ethical requirements may be motivated in part by the possibility of lawsuits and criminal penalties, ethical issues permeate the practice and process of social work. Texas licensees must have a clear understanding both of applicable rules and guidelines and of the extent to which personal experiences and biases may influence how they understand and apply these requirements.

"Sexual Contact"

Under §781.405, "sexual contact" falls into three categories: "deviate sexual intercourse," "sexual contact," and "sexual intercourse as defined by the Texas Penal Code, §21.01."190

Texas Penal Code §21.01(1) defines "deviate sexual intercourse" as �any contact between any part of the genitals of one person and the mouth or anus of another person,� or �the penetration of the genitals or the anus of another person with an object.�191

The Penal Code defines "sexual contact" as �any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.�192 The Code also defines sexual contact with a child as:

    the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
  1. any touching by a person, including touching through clothing, with the anus, breast, or any part of the genitals of a child; or
  2. any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.193
Finally, "sexual intercourse" is defined under the Texas Penal Code as �any penetration of the female sex organ by the male sex organ.�194

"Sexual Exploitation"

Sexual exploitation can be defined as �a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person."195 Sexual exploitation thus includes much more than actual sexual contact. Licensees need to be aware that certain behaviors, comments, or gestures, however innocently intended, may be misinterpreted � particularly by patients who are unusually vulnerable with regard to such issues.

Licensees should also note the law's specific definitions of what may constitute sexual exploitation where the purpose is "sexual arousal, gratification or sexual abuse of any person." Examples include:

  1. sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, and
    1. is not bound in the therapeutic modality for the purpose of the professional services rendered;
    2. is offensive or creates a hostile environment, and the licensee knows or is told this; or
    3. is sufficiently severe or intense to abusive to a reasonable person in the context;
  2. any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual;
  3. inappropriate sexual comments about or to a person, including making sexual comments about a person's body;
  4. making sexually demeaning comments about an individual's sexual orientation;
  5. making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in counseling;
  6. requesting details of sexual history or sexual likes and dislikes when not necessary for counseling of the individual;
  7. initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;
  8. kissing or fondling;
  9. making a request to date;
  10. any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature;
  11. any bodily exposure of genitals, anus or breasts;
  12. encouraging another to masturbate in the presence of the licensee; or
  13. masturbation by the licensee when another is present.196

Sexual exploitation does not include obtaining information about a client�s sexual history within standard accepted practice while treating a sexual or marital dysfunction. However, licensees must ensure that attempts to obtain such information are limited strictly to therapeutic purposes. Making such inquiries when they are not necessary to the therapeutic process may constitute sexual exploitation. Examples of such inquiries may include items listed above such as asking the patient for details of her sexual history, asking about sexual likes and dislikes, or making comments about potential sexual performance, when such questions or comments are not pertinent to the patient's course of treatment.197

Licensees should also be aware that they may need to take special precautions in the area of self-disclosure. Self-disclosure is a valid therapeutic technique, used in various forms by many � if not most � mental health professionals. However, clients who file complaints or lawsuits against mental health professionals frequently cite inappropriate or excessive self-disclosure as one of the bases of the complaint. According to Caudill:

Mental health professionals must be conscious that excessive self disclosure can fuel a patient's perception that he or she is special to the professional, or that there is a potential for a relationship outside the therapeutic one. The problem becomes more acute when the patient is inquiring as to the professional's personal life and/or the mental health professionals relationships with his or her family and/or lovers. At that point the professional should be inquiring as to what purpose this information would serve for the patient to know.198

Before engaging in any self-disclosure, a licensee should determine whom such disclosure benefits� i.e., is the licensee making the disclosure for the patient's benefit, or for her own? In determining whether self-disclosure would be appropriate, she should weigh the client�s psychological condition in making the decision.199

"Therapeutic Deception"

A third category of sexual misconduct is "therapeutic deception." The statute defines therapeutic deception as a representation by a licensee that sexual contact with, or sexual exploitation by, the licensee is consistent with, or a part of, a client�s or former client�s social work services."200 In other words, if a licensee convinces a patient to engage in sexual contact by telling the patient that such contact is part of the social work services, the licensee commits therapeutic deception.

As noted below, another term for "therapeutic deception" is "fraudulent misrepresentation."201 In addition to subjecting a licensee to professional discipline, engaging in therapeutic deception may also expose the professional to civil liability for negligence and even criminal penalties.


Under §781.405, if a licensee has reasonable cause to suspect that a client has been victimized by another mental health services provider, or if a client alleges such victimization, the licensee is required to report the suspicion or allegation.202 Such reports must be made within 30 days of the date the social worker becomes aware of the allegations or conduct.203 Before fling the report, the licensee must inform the alleged victim of this to report, and must determine whether the victim wishes to remain anonymous.204 If so, she must withhold the alleged victim's identity from the report; if not, she must identify the victim.205 The licensee must also identify herself in the report (as the person filing it); she must clearly articulate her suspicion that sexual exploitation, sexual contact, or therapeutic deception has occurred; and she must identify the person who has allegedly engaged in the misconduct.206

Texas licensees must file such reports of alleged sexual misconduct with the prosecuting attorney in the county where the violation allegedly occurred.207 If the alleged misconduct involves a licensed social worker, the report must also be filed with the Texas State Board of Social Worker Examiners and any other state agency that licenses the provider.208

A study by Pope, Tabachnik, and Keith-Spiegel demonstrates the level of discomfort mental health professionals feel with regard to reporting obligations. Of those surveyed, 2.4% responded that "formally report[ing] a colleague's harmful behavior under any circumstances was inherently unethical behavior on the part of the psychologist filing the complaint."209 Another 12.8% of respondents in the same study described such reporting as "ethical only under rare circumstances."210 However, Rule §781.405 makes clear that Texas licensees have a legal duty to report suspicions or allegations of sexual misconduct by another professional, regardless of their own sense of discomfort in doing so.211


Licensees who engage in sexual conduct with clients expose themselves to specific potential legal consequences. According to Pamela Sutherland, these fall into three major categories: licensure actions, civil litigation, and criminal charges.212 Regardless of the form any sanction may take, from a legal standpoint, professional sexual misconduct is unethical as a matter of law, and is likely to constitute malpractice.

Professional Discipline and Enforcement

With regard to social worker licensure in Texas, Title 22, PART 34, Chapter 781, Subchapter H of the Texas Administrative Code213 defines levels and severity of sanctions and provides guidelines for enforcement. There are five levels of sanctions:

  1. Level one: revocation of license;
  2. Level two: "extended suspension of license";
  3. Level three: "moderate suspension of license";
  4. Level four: "probated suspension of license"; and
  5. Level five: a reprimand.214

If a social worker's license is revoked, the state will take the practitioner's license away from him or her. The licensee will also be ordered to cease his or her professional practice. Level one violations evidence intentional or gross misconduct on the part of the licensee and/or cause or pose a high degree of harm to the public and/or require severe punishment as a deterrent to the licensee, or other licensees. The fact that a license is ordered revoked, however, does not necessarily mean the licensee can never regain licensure.

Suspensions vary in length and degree. A level two violation � extended suspension of license, involves less misconduct, harm, or need for deterrence than Level One violations, but requires termination of licensure for a period of not less than one year. Level Three violations - moderate suspension of license, involve less misconduct, harm, or need for deterrence than Level Two violations, but require termination of licensure for some period of time. As a general matter, a suspension operates like a revocation, but the licensee's license to practice is removed for a specific period of time, during which the licensee may not engage in practice. In Level two and three, the practitioner often will be required to undergo education and training and/or therapy during the term of the suspension. Under a "probated suspension," a level four violation, on the other hand, a licensee may continue to practice, provided that he or she meets specific requirements during the suspension period.

Licensees on probation must meet the Board�s General Conditions of probation which entail 12 specific conditions including periodic reports to the board, participation in the board�s probation surveillance program, interviews with the board at various intervals, notification of practice setting of the licensee�s probationary status, responsibility for all costs of compliance with probation terms and other conditions. The board may also require probationary licensees to complete up to thirteen �Special Conditions� for probation that include conditions such as body fluid testing, community service, medical evaluation, psychiatric evaluation, supervision of the licensee�s practice, psychotherapy, and other stipulations as set forth in §781.806 of Title 22. Finally, Level Five violations involve minor misconduct not directly involving the health, safety or welfare of the particular member of the public at issue. Licensees are reprimanded, but may still practice.215

The Web site of the Texas State Board of Social Worker Examiners provides the final adverse actions taken by the board against social workers. The name and license number of each licensee who has been subject to any form of professional discipline, as well as the type of discipline imposed, are listed for a period of seven years. Of the 43 final adverse actions listed against licensees from 2003 to 2005, five cases involved sexual misconduct resulting in either surrender or probated suspension of license. Although the specific details of each case are not revealed, the violations indicate that four of the five involved sexual contact while one of the cases did not specify the nature of the sexual misconduct. Other Texas boards also report violations by licensees. During the same period, 2003 to 2005, at least eight of the thirty final adverse actions (some cases did not indicate the type of rule violation) taken against Licensed Professional Counselors (LPCs) involved sexual misconduct. Of the sexual misconduct violations, one license was revoked, four were surrendered, two received probated suspension, and one received a reprimand. 216

If a licensee has committed any criminal act, the Board will notify, with the approval of the executive director or Ethics Committee, the appropriate law enforcement officials. The notification takes place at the time of the original investigation of the complaint; not after sanctions by the board have been taken against the licensee. A discussion of civil and criminal litigation for licensees� sexual misconduct follows.217


Across the country, attorneys and even entire law firms specialize in professional misconduct lawsuits. Some have practices devoted exclusively to defending mental health professionals; others limit their practices exclusively to representing plaintiffs in suits against mental health professionals. And as Schoener reports, "more than 50% of legal costs on behalf of psychologists in the U.S. are accounted for by sexual misconduct cases."218 However, he also notes that this "does not mean that the sexual activity per se was the major cause of the damages."219 "[A] great range of non-sexual misconduct is present in most 'sex cases,'" and actual liability may instead be caused directly by the non-sexual misconduct, such as breach of fiduciary duty or mishandling of the transference phenomenon.220 In such instances, "damage would have been done even had the sexual contact not occurred."221

Jorgenson and Sutherland identify seven categories of "causes of action," or grounds for a lawsuit, under which mental health professionals who commit sexual misconduct may be sued: 1) negligence and malpractice; 2) breach of fiduciary duty; 3) negligent infliction of emotional distress; 4) intentional torts; 5) breach of contract or breach of implied warranty; 6) "spousal claims"; and 7) "employer liability."222 With regard to patient lawsuits against licensees, malpractice is by far the most common cause of action, and negligence is by far the most common type of malpractice alleged in such suits.

Negligence and Malpractice

Negligence generally requires four basic elements: The defendant must 1) owe a duty of care; 2) must breach that duty; 3) harm must occur; and 4) the harm must be a result of the defendant's breach of duty.223 The Social Worker�s Code of Conduct outlines the duties a professional owes to patients. Breach of any of these duties risks harm to the patient � and legal liability to the social worker.

Increasingly, professional malpractice suits involve allegations of professional sexual misconduct. The first successful patient lawsuit to allege negligence based on therapist/patient sexual contact was decided in 1968. It was also the first such suit to ground its theory of negligence explicitly in the notion of mishandled transference. Despite the fact that the case is nearly 40 years old, in many ways it remains a standard in professional sexual misconduct litigation.

Zipkin v. Freeman224

Because of the transference that occurred during the course of treatment, Mrs. Zipkin developed romantic feelings for her psychotherapist, Dr. Freeman. Freeman embarked upon a romantic relationship with her that transgressed a number of professional boundaries.225 During the course of the relationship, they engaged in "nude swimming" with a number of Dr. Freeman's other patients, overnight trips, and sexual contact.226 Dr. Freeman convinced Mrs. Zipkin to leave her husband and children, steal her husband's clothing for Dr. Freeman's use, use her savings to buy him a farm, and work the farm as one of his employees.227

Eventually, the relationship ended, and Mrs. Freeman sued Dr. Zipkin for negligence, alleging that she had suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, was irritable and suffered financially."228 The Missouri Supreme Court agreed229 � and its decision also foreshadowed Kuniholm and Church's assertion that "interaction between patient and professional that transgresses professional boundaries is inappropriate and may be harmful even without blatant sexual contact."230 The court concluded: "It is pretty clear from the medical evidence that the damage would have been done to Mrs. Zipkin even if the trips outside the state were carefully chaperoned, the swimming done with suits on, and if there had been ballroom dancing instead of sexual relations."231

John D. Winer, a California plaintiff's attorney who specializes in such cases, claims to have obtained millions of dollars' worth of verdicts and settlement agreements in professional sexual misconduct cases.232 One settlement, for half a million dollars, was awarded to a client who had lived briefly with her psychiatrist after the psychiatrist terminated her two-year course of treatment. According to Winer, "[i]t became clear that the [psychiatrist], through inappropriate psychotherapy techniques and abuse of the transference phenomenon, had been 'setting up' the plaintiff to engage in the sexual relationship for the last eight months of therapy."233

In another case involving a professional/patient sexual relationship that began after the termination of treatment, the patient was awarded a $490,000 settlement. According to Winer, "expert witnesses" who "debriefed" the patient "indicated that the psychiatrist had committed multiple acts of negligence and malpractice during the time of treatment which 'set the plaintiff up' for the sexual relationship which was to follow." Moreover, as in Zipkin, the sexual contact was far from the only problem: Testimony "indicat[ed] that the damage to the [patient] was not caused by the sexual relationship which, in fact, did not injure her, but was caused by the professional's malpractice[,] which destabilized the plaintiff and her relationship with her own family and caused her to become addicted to prescription medication."234

Malpractice Insurance Issues

Professional malpractice insurance policies frequently include clauses providing that the insurance company is not liable for claims arising from the professional's sexual misconduct. Courts vary in their application of such clauses: Some uphold them, finding that the professional is personally liable for any damages arising out of sexual misconduct claims; others refuse to enforce such clauses, holding the insurance company liable, at least in part, for such damages.

Such a clause played a role in the case discussed above, involving the patient who was awarded a half-million dollars when her psychiatrist used the "last eight months of therapy" to "set her up" for the subsequent sexual relationship. The insurance company argued that "sexual misconduct was excluded under their insurance policy," it ultimately paid a portion of the overall settlement. The professional was personally liable for the balance.235

In a 1998 Texas case, however, the court held that an insurance policy provision limiting liability to $25,000 in cases arising out of professional sexual misconduct was valid, and superseded any public policy interest in removing such caps as a way of encouraging sexual abuse victims to report the abuse. In American Home Assurance Company v. Stephens236, professional Billy Stephens's malpractice insurance company sued him to recover damages awarded to one of Stephens's patients for sexual misconduct. The original malpractice suit was brought by Rory Ross, who had undergone four years of treatment and sexual contact with Stephens. Ross subsequently filed a malpractice claim, on grounds that he had negligently misdiagnosed her and that his course of treatment had been negligent. American Home defended Stephens at arbitration, but lost: Ross was awarded $2.9 million. 237

American Home contested the award in federal court, arguing that a clause in Stephen's policy capped coverage for any claims arising out of professional sexual misconduct at $25,000. The court agreed, concluding that the insurance company could be held liable only for a maximum of $25,000.238 On appeal, the Fifth Circuit Court of Appeals found that the state's public policy interest in encouraging victims of professional sexual misconduct to report the abuse was better served by refusing to enforce such caps. Holding that such a public interest superseded the private contractual provisions of the insurance company's policy, the Fifth Circuit initially overturned the trial court's decision.239

However, the appellate court then asked the Texas Supreme Court to issue its interpretation of Texas law with regard to the competing interests of encouraging reporting of sexual misconduct and upholding private contractual agreements. The Texas Supreme Court held that, under Texas law, American Home's policy provisions superseded public policy interests in encouraging reporting by refusing to enforce coverage caps.240 Ultimately, American Home's $25,000 cap was enforced, leaving Stephens personally liable for the balance of the $2.9 million award.241

As noted above, the pervasiveness of exclusionary clauses and coverage caps makes it unwise for licensees to assume that their malpractice insurance will cover all damages arising out of claims of sexual misconduct; malpractice insurance is likely to cover only a portion of the award at best, and indeed may cover none of it at all. However, as the wide disparities among the decisions in the American Home litigation makes clear, insurance companies likewise should not assume that the presence of such a clause in an insurance policy will insulate the company against damage awards for professional sexual misconduct. In most cases, whether damages will be assessed against professional, insurer, or both, and in what proportions, is likely to vary widely according to jurisdiction, the wording of the insurance policy and any applicable laws, and the individual facts of each case.

Breach of Fiduciary Duty

Many different kinds of relationships, particularly professional relationships, may involve a fiduciary duty. A fiduciary duty is a duty imposed, generally, on the more powerful party to act in the best interest of the less powerful party.242 A lawyer, for example, has a fiduciary duty to her clients, who place their trust and confidence in her hands; she has special expertise they do not, and they retain her and pay her fees with the understanding that she will use that expertise to represent their interests. Similarly, a physician has a fiduciary duty to his patients: They seek his medical advice because he has the specialized knowledge and skill necessary to deal with their health problems in ways that they cannot � and, again, they pay his fees in the expectation that he will use that knowledge and skill to make them well.

Roy v. Hartogs243

An early therapist sexual misconduct suit based on breach of fiduciary duty was the 1976 case Roy v. Hartogs. Ms. Roy was treated by Dr. Hartogs over a 13-month period. She alleged that Hartogs purported to "'treat' [her] for her lesbianism by engaging in sexual relations with her."244 Roy claimed that sexual relations as a method of "treatment" were a breach of fiduciary duty. Hartogs claimed that her allegations amounted not to breach of fiduciary duty, but to "alienation of affection," an obsolete cause of action no longer recognized by the courts. However, the court upheld Roy's right to pursue a claim for breach of fiduciary duty, holding that she "allege[d] coercion by a person in a position of overwhelming influence and trust."245

Negligent Infliction of Emotional Distress

"Emotional distress" may be inflicted either negligently or intentionally. Negligent infliction may occur as a result of a professional's failure to do something required under customary standards of practice. However, such a failure may not involve an overt act or omission; rather, it may result from a professional's mishandling of some part of the therapeutic process, such as transference or countertransference.

As a cause of action, emotional distress encompasses a host of emotional and psychological difficulties. In Zipkin, for example, Mrs. Zipkin alleged that she suffered "remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches, [and] was irritable."246 A patient who files a claim for emotional distress might allege some or all of these difficulties. It might also include such claims as depression, anger, or thoughts of suicide, as well as an wide array of other emotional problems. And despite the fact that Mrs. Zipkin grounded her claims in negligence, it seems likely that today, the facts present in Zipkin might support a claim for intentional infliction of emotional distress, discussed in the next subsection.

Richard H. v. Larry D.247

A 1988 California case upheld a claim for negligent infliction of emotional distress where the sexual contact occurred not between professional and patient, but between the professional and the patient's spouse. In Richard H., the patient apparently initially sought treatment because of marital difficulties. In addressing his emotional distress claim, the court held: "It is readily foreseeable that a patient seeing a psychiatrist for purposes of stabilizing and improving his or her marriage would feel betrayed and suffer emotional distress upon learning that the psychiatrist has, during the course of the patient's treatment, been engaging in sexual relations with the patient's spouse."248

Negligent infliction of emotional distress is sometimes used to hold mental health professionals liable for harm to so-called "secondary victims" � third persons � resulting from the practitioner's sexual relationship with a patient. Generally, such claims apply to family members � e.g., spouses, parents, etc. In a 1989 case, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.249, a mother sued a therapist and his employer for allegedly sexual assaulting her child, who was a patient. Her suit alleged negligent infliction of emotional distress; the defendants challenged the validity of the cause of action. However, the court permitted her claim for emotional distress to go forward.250

Intentional Torts

A "tort" is an action one person commits that harms another. And "intentional tort" is precisely what its name implies: an act that a person commits intentionally to harm another person. Intentional torts take a variety of forms: Assault, battery, intentional infliction of emotional distress, and "fraudulent misrepresentation" are just a few examples that are likely to be especially relevant in cases of professional sexual misconduct. As with sexual misconduct generally, malpractice insurance policies traditionally exclude intentional torts from coverage. Licensees thus may be personally liable for intentional torts. However, insurance companies likewise should not assume that the existence of an exclusionary clause will in all cases prevent liability for an insured professional's intentional torts. As with sexual misconduct generally, some courts may hold that other laws or policy interests supersede such clauses.

As noted previously, in many jurisdictions, including Texas, any sexual contact between professional and patient is nonconsensual from a legal standpoint. The nature of the therapeutic process is so psychologically and emotionally intimate, and may involuntarily produce such great psychological dependency on the part of the patient, that the patient cannot be said to have given "consent" to such a relationship. Thus, any sexual contact by the professional may leave him or her open to claims of assault and/or battery.

In most jurisdictions, "assault" is generally defined as an act that a reasonable person would interpret as an attempt to touch him or her in an unwelcome way. In other words, the act need not necessarily be physically violent, such as a punch, nor cause demonstrable physical harm, such as a black eye or a broken nose. Something as simple as a hug, under certain circumstances, may constitute an assault. Perhaps even more important, no actual "touch" need even occur: The victim only needs to fear that the touch is going to occur, and that fear needs to be reasonable considering all the circumstances. "Battery," on the other hand, does require that a "touching" actually occur, but again, the touch may be a hug or a pat. If it occurs without the person's consent and a reasonable person would find it harmful or offensive under the circumstances, it is a battery. With regard to claims of assault and battery, context is of the utmost importance, and this is perhaps nowhere more true than in the therapist/patient relationship. (In addition to providing causes of action in civil personal injury litigation, assault and battery may also subject the licensee to criminal charges. These are discussed in the next subsection.)251

As noted in the previous subsection, emotional distress may also be an intentional tort. Because of both the imbalance of power inherent in the therapist/patient relationship and the emotional dependency created by the therapeutic process, acts that might otherwise carry no legal liability may be considered an intentional infliction of emotional distress. For example, a licensee involved in a sexual relationship with a person who is not his patient may find, when he terminates the relationship, that his former partner becomes depressed, angry, emotionally unstable, and even suicidal. In a nonprofessional context, such results are unfortunate (perhaps even tragic), but rarely involve any sort of legal liability for the person who terminates the relationship. However, suppose that the licensee embarks upon a sexual relationship with one of his own patients � knowing that the person is vulnerable, emotionally fragile, and likely to become depressed or unstable upon termination of the relationship � and yet terminates it anyway, he may be found to have committed intentional infliction of emotional distress.

Certainly, such a claim is much more likely to succeed today � for example, in cases such as Zipkin, where a therapist purposely convinces a patient to subjugate herself to him in especially humiliating ways (e.g., such as inducing her to buy him a farm and then forcing her to work it as a laborer). In a 1996 case from Pennsylvania, Corbett v. Morgenstern252, a federal court upheld a patient's claim for intentional infliction of emotional distress where it was based on allegations of a professional/patient sexual relationship during after termination of treatment.

Licensees should also be aware of another aspect of Corbett: The court also upheld the patient's right to sue for punitive damages, based upon the claim of intentional infliction of emotional distress.253 Punitive damages are financial damages that are awarded to a plaintiff in a lawsuit beyond the damages awarded to compensate her for the harm that occurred. Punitive damages are designed as a deterrent, to prevent the defendant and others from engaging in such harmful contact in the future. To accomplish this deterrent effect, punitive awards are often much higher than compensatory damages.

Finally, "fraudulent misrepresentation": Such a claim must meet five conditions.

  1. First, the defendant must have made a "false representation";
  2. Second, the defendant must have known it was false at the time she made it;
  3. Third, she must have made the false representation "for the purpose of defrauding the [patient]";
  4. Fourth, the patient must have had a right to rely on the false representation, must have actually relied on it, and must have engaged in a course of action that he would not otherwise have taken had he not relied on the false representation; and
  5. Fifth, the fraudulent misrepresentation must have harmed the patient.254

Within the context of the therapeutic relationship, fraudulent misrepresentation provides a likely cause of action for sexual misconduct, particularly where the professional tells the patient that the sexual contact is a part of the therapy process. In Texas, fraudulent misrepresentation under these circumstances (i.e., where the licensee tells the patient that sexual contact is a part of the therapy) is known as "therapeutic deception," discussed above.

Breach of Implied Contract/Breach of Implied Warranty

Breach of contract claims are precisely what they sound like: claims that one party has not lived up to his or her end of a contract. Licensees must be aware that a contract may exist even if there is no agreement that is labeled a "contract." Indeed, there need not even be a formal agreement, either written or verbal. In some contexts, courts may deem interactions between parties to be governed by an "implied" contract, particularly where one party has a fiduciary duty to the other.255

Because a licensee does have a fiduciary duty to patients, even if no written agreement exists, courts are likely to find that an implied contractual arrangement does exist. A claim for breach of implied contract may arise a number of ways � for example, in the context of the fee-for-service arrangement. Despite the fact that the patient has paid all fees as agreed, he has not received the treatment promised.

Many jurisdictions now also codify "patients' rights," in codes of ethics, statutes, or both. Usually, such rights include the right to be treated without sexual contact or pressure to engage in such contact. Many individual practitioners also adopt a "patients' bill of rights," which is prominently displayed in their offices and printed on intake forms or other documentation. As a result, even where there is no explicit contract covering potential professional/patient sexual contact, the existence of either mandatory or voluntary "patients' rights" codes may create an implied contract not to engage in such misconduct.

Moreover, as with intentional torts and negligence, the unique characteristics of the therapeutic relationship may also support a cause of action for breach of implied contract. Mental health professionals are trained to treat patients who are emotionally vulnerable and psychologically dependent; that training includes handling boundary issues that arise out of the transference and countertransference processes. Mental health professionals thus may reasonably be expected to be aware of both the possibility that such issues may arise and the harm that mishandling them may cause to the patient. And because this imbalance in power is so great, and the potential for harm so substantial, even in the absence of a "patients' bill of rights," courts may conclude that an implied contract exists.

Jorgenson and Sutherland report that a breach of contract claim succeeded in a professional sexual misconduct case as early as 1972. In Anclote Manor Foundation v. Wilkinson256, a widower sued his late wife's professional (and employer) for breach of contract. During the course of treatment, the professional had engaged in a sexual relationship with the patient; she subsequently committed suicide. The court ruled in favor of the patient's husband, although it awarded him only the amount of the therapy fees and hospital bills.257

Breach of warranty involves the failure to provide a product or service of the quality or for the use promised. In the professional/patient context, such claims may arise where the treatment process does not produce the results for which the patient visited the professional in the first place. While most licensees are unlikely to provide explicit warranties that their services will achieve particular results, the very fact that they are engaged in practice may "imply" a warranty that those services will at least help, rather than harm, their patients.

For example, a patient who goes to a professional seeking help for depression quite reasonably expects that the course of treatment the professional prescribes will, if followed, reduce or eliminate the depression. By taking on the patient, the licensee may effectively "warrant" (or guarantee) that her services, if the patient complies with the course of treatment, will obtain the desired result. However, if the professional's course of "treatment" includes sexual contact, the sexual relationship may lead the patient to become more rather than less depressed. A court may conclude that, by engaging in conduct she knows has the potential to cause harm, the professional has breached an implied warranty to provide helpful, not harmful, treatment.

Jorgenson and Sutherland report that, in cases of therapist sexual misconduct, breach of implied warranty claims have so far been less likely to succeed. They cite a 1985 Texas case, Dennis v. Allison258, as an example of courts' refusal to recognize such claims. In Dennis, however, the court apparently did not reject the patient's breach of implied warranty claim on its merits. Rather, it held that because other remedies were available to the patient in her suit for professional sexual misconduct, it did not need to consider breach of implied warranty.259

Spousal Claims

Spousal claims � and other third-party claims, such as those by parents � may encompass a variety of causes of action. Examples include breach of contract (as in Anclote Manor260, discussed above), negligent infliction of emotional distress (as in Marlene F.261, above), loss of consortium (in the case of a spouse), and wrongful death (e.g., in the case of a patient suicide).

A spouse may be able to sue for breach of contract if, as in Anclote Manor262, the spouse has paid the therapy fees and attendant expenses. The same may be true in the case of a parent who pays for therapy for a minor child. Depending upon the circumstances, either a spouse or a parent may be able to sue for negligent infliction of emotional distress. In Marlene F.263, a parent's right to sue was upheld because it was reasonably foreseeable that a parent would suffer emotional distress upon hearing that her child's professional had allegedly molested his minor patients.

In Richard H.264, a patient was permitted to sue for emotional distress, which the court found "readily foreseeable," because his therapist had engaged in a sexual relationship with the patient's wife. It is likely that a court would likewise find it "readily foreseeable" that a patient's spouse would suffer emotional distress to learn that the therapist engaged in sexual contact with the patient. Likewise, in Mazza v. Huffaker265, a 1983 North Carolina case, a therapist was found negligent for engaging in sexual contact with his patient's spouse. As in Richard H., Mr. Mazza had confided to Dr. Huffaker that he was having difficulties in his marriage. He subsequently discovered his wife and Huffaker in bed together. 266 Jorgenson and Sutherland also cite a 1991 case from Maryland, Figueiredo-Torres v. Nickel267, in which a professional was treating both husband and wife. During the course of treatment, he not only engaged in sexual contact with the wife, but also told the husband that "he should stay away from his wife because he had bad breath, [that he] was a '"codfish" and that his wife deserved a fillet [sic].'"268

With regard specifically to spousal claims, some courts will also permit claims for loss of consortium (loss of the spouse's companionship and/or sexual relations), and, in a few jurisdictions, alienation of affection. A cause of action for alienation of affection, traditionally brought against the third party with whom a spouse engaged in an adulterous relationship, no longer exists in many states. However, Jorgenson and Sutherland report that Utah, for example, still recognizes such claims: In 1991, after a professional embarked upon a sexual relationship with a patient and she subsequently left her husband and children, a Utah court upheld the husband's right to sue the professional for alienation of affection.269 However, Jorgenson and Sutherland also note that some courts will not permit a patient's spouse to sue for negligence. For example, in another Maryland case, Homer v. Long270, the court refused to recognize a spouse's claim on grounds that "the professional owe[s] no duty to the spouse 'even if, as here, the spouse is the one who initially employed the professional and is paying the professional's fees.'"271

In medical malpractice cases, wrongful death claims by survivors have long been accepted by the courts when a patient dies. For purposes of wrongful death, a "survivor" who has standing to bring such a claim may include a spouse, a child's parent or guardian, or a patient's own children. Definitions of who qualifies as a survivor vary by state.

Employer Liability

When a licensee is employed by, or affiliated with, a hospital, clinic, group practice, or other organization, that organization may also be liable for the licensee's sexual misconduct. Exceptions sometimes exist for public entities, such as government-run hospitals, or charitable institutions: In such cases, the employers may be entitled to "immunity" from liability. However, even under such circumstances, employers may be entitled only to "qualified immunity": Depending upon the specific circumstances of the individual case, the plaintiff may be able to prove that because of the employer's actions or involvement, it is not entitled to immunity from liability.

With regard to sexual misconduct cases, the extent to which jurisdictions are willing to grant either full or qualified immunity to employers varies widely. The key is usually "agency" � i.e., the extent to which the professional acts as an "agent" of the employer when he or she engages in the misconduct.272 Determining whether the licensee acted as an agent of the employer often turns on whether the misconduct occurred "within the scope of employment."273

Some states use what is known as the "motivation to serve" test. In such jurisdictions, courts will find an employer liable only if the licensee's misconduct was "motivated at least in part by a desire" to further the employer's interests.274 In a 1984 case, Andrew v. United States275, a court found an employer not liable when a physician's assistant engaged in sexual contact with a patient, on grounds that the sexual contact did not further the employer's interests.276

However, Jorgenson and Sutherland report that most states have adopted some version of a general agency theory (sometimes described in terms of "master" and "servant").277 Under this theory:

Conduct of a servant is within the scope of employment if, but only if:

  1. it is of the kind he is authorized to perform;
  2. it occurs substantially within the authorized time and space limits;
  3. it is actuated, at least in part, by a purpose to serve the master; and
  4. if force is intentionally used by the servant against another, the use of force is not unexpected by the master.278

Under this theory, however, "[c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."279

Some jurisdictions use what legal experts call a "'but-for' test": in other words, evidence that "but for" the fact that the employer employed the professional, the misconduct would not have occurred.280 A Minnesota court used such a test in 1982 in Marston v. Minneapolis Clinic of Psychiatry281. In Marston, "[t]he court found that the jury could weigh the facts and determine that the sexual conduct would not have occurred but for the psychologist's employment with the clinic."282

Other states use variations of the "motivation to serve" test to interpret and apply general agency theory.283 For example, in 1990, an Alaska court found that a professional's sexual contact with a patient occurred within the scope of employment: The plaintiff met the "motivation to serve" test because the contact arose out of the employee's work and was "reasonably incidental to the employee's legitimate work activities."284 According to the court, "because an employee is never authorized to commit a tort, [agency theory] must mean 'only that the act which leads to the tortious behavior cannot be different in kind from acts the employee is authorized to perform in furtherance of the employer's enterprise.'"285

Under certain circumstances, the law also recognizes what is known as a "duty of extraordinary care" to certain types of persons. For example, "common carriers" (e.g., bus lines, railroads, airlines, etc.) have a heightened (or "extraordinary") duty of care to passengers, because of the "passengers' surrender of their ability to protect themselves from harm" while using the carrier. Jorgenson and Sutherland note that, "[m]ore recently, courts have extended this duty of extraordinary care to innkeepers, hospitals and other entities who invite the public to become, in effect, guests in their facilities."286

Courts have applied the "common carrier" theory of liability to medical and residential facilities in cases of employee sexual assault. In a 1989 Indiana case, Stropes v. Heritage House Childrens Center Of Shelbyville, Inc.287, the court found a residential care facility liable for a mentally retarded resident's sexual assault by a nurse's aide:

When Heritage accepted [the plaintiff] as a resident of its facility, it was fully cognizant of the disabilities and infirmities he suffered which rendered him unable to care for himself and which, in fact, undoubtedly formed the basis of their relationship. Their "contract of passage" [i.e., which created "common carrier" liability] contemplated that the entire responsibility of [the plaintiff's] comfort, safety and maintenance would be on Heritage . . . .288

Two elements were key in Stropes: 1) the plaintiff's particular vulnerabilities (i.e., as a mentally retarded individual); and 2) the fact that the plaintiff used the services of the residential facility specifically for the purpose of keeping him safe and secure in light of those vulnerabilities. This analysis has significant implications for licensees and their employers in cases of sexual misconduct, since patients who retain a professional's services are likely to be emotionally and psychologically vulnerable, and since they retain those services specifically to help them overcome those vulnerabilities.

In certain circumstances, an employer may also be "directly liable" when an employee engages in sexual contact with a patient or client. Direct liability generally applies in cases where the employer's recruitment, training, supervision, or retention of the employee in question is at issue. For example, a hospital, clinic, treatment facility, or other similar institution has a specific duty to ensure that it does not hire employees who pose a demonstrable risk to patients. In other words, such institutions must be diligent in reviewing potential employees' backgrounds, so that they do not hire employees with criminal records, demonstrated psychological problems, or a history of misconduct. 289

If an employer fails to screen potential employees' backgrounds and subsequently hires a licensee with a history of sexual assault, the employer is much more likely to be held directly liable for "negligent hiring" if that professional subsequently engages in sexual contact with a patient. Likewise, if an employer learns that a professional has engaged in sexual misconduct and fails to take appropriate measures to prevent such misconduct in the future, the employer may be directly liable for "negligent supervision" and/or "negligent retention."

In a 1986 case, Andrews v. United States290, the Fourth Circuit Court of Appeals found the federal government liable in a suit filed by a patient and her husband. In Andrews, the court found that the supervising physician was negligent in "fail[ing] to terminate the relationship between the physician's assistant and the patient after receiving information as to the assistant's sexual impropriety with the patient at an early stage."291

In a 1985 case, Thelen V. St. Cloud Hospital292, a Minnesota court found the hospital directly liable for negligence because it "fail[ed] to report an employee's sexual abuse of a patient."293 Similarly, in Copithorne v. Framingham Union Hospital294, a 1988 Massachusetts decision, the court found the hospital liable for a staff doctor's rape of a patient. The court held that the hospital was negligent in allowing the doctor to retain staff privileges when "it knew or should have known that the physician 'posed a risk of harm to women' based upon prior conduct."295


Professional/patient sexual contact may subject licensees to criminal penalties, including imprisonment. Texas is one of many states that has criminalized therapist/client relationships in recent years.296 In addition to notifying the board of any civil lawsuits related to social work duties filed or settled against a licensee, the Texas Administrative Code Rule §781.316 requires that Texas licensed social workers make a written report to the board office within 30 days of any arrest or criminal convictions (except Class C misdemeanor traffic offenses) or the filing of a criminal case against the licensee. Thus, in many cases, the criminal conviction of a sexual offense may precede any investigation made, or sanctions imposed, by the board. Occupations Code § 53.021 states that any conviction of a felony or misdemeanor that directly relates to the duties and responsibilities of a licensee�s occupation can result in suspension, revocation, or denial of a license. Also, a social worker�s license �shall be revoked� on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.

In Texas, a person commits sexual assault when he intentionally or knowingly has sexual contact with another person without that person�s consent. It is important to note that, according to Texas Penal Code 21.011, licensed social workers and other mental health providers can never have consensual sex with a current or former client.297 As a writer at Advocate Web writes:

In Texas, sexual exploitation of patients by mental health service providers is already a second degree felony, defined as a form of sexual assault. The Texas Civil Practices and Remedies Code permits a client to sue a mental health service provider who sexually exploits them.298

A second degree felony carries a sentence of no more than 20 years or less than 2 years in an institutional division (prison). Mental health providers, such as Mental Health Deputies who transport clients in crisis situations, who do not hold a license and may not be �in trouble� with a board, may still be criminally charged for sexual exploitation of clients.299

Whether a complaint by a client will result in the conviction of a licensee, however, depends on the individual circumstances of the case. Patients who are victims of professional sexual misconduct often suffer from mental illness, including schizophrenia and other delusional disorders. Such patients' psychological condition may make authorities less likely to believe their allegations of sexual abuse in the face of denials by an articulate mental health professional. One law firm that represents clients alleging sexual misconduct by mental health professionals acknowledges: �The sexual contact itself is usually difficult to prove�the jury, however, is more likely to believe that if the therapist acted inappropriately or behaved negligently with other boundaries, it is possible that he/she acted out sexually as well.� 300 Based on the cases involving sexual misconduct of the licensees in one state, usually a trail of boundary violations are left that make the charge of sexual contact more credible. With the recent trend of greater sensitivity by law makers to the issue of therapist/client sexual contact, it will become increasingly difficult for licensees in all mental health professions to escape criminal charges associated with sexual misconduct.


The attitudes of mental health professionals with regard to sexual misconduct and boundary violations affect both their individual behavior and the prevention of sexual misconduct in the profession as a whole. Pope argues that three categories of "contributing factors" lead to the problem of sexual misconduct in the profession.301 Each of these factors are key elements in any effort to prevent professional sexual misconduct, and must be taken into account in education and training programs.

"Varieties" of Sexual Involvement

"One part of the problem may be that mental health professionals are unaware of the variety of ways in which sexual intimacy with a client can occur."302 According to Pope, mental health professionals may assume that the dynamic that leads to such misconduct occurs in the context of the "scheming, malicious professional" and "reluctant client" described above.303 Such assumptions, he argues, may be dangerously simplistic, and may leave a professional "unprepared to recognize and handle safely and therapeutically a client who is experiencing an intense sexual transference or an attractive client who is expressing a need for nonerotic closeness."304

With regard to this set of factors, Pope concludes that mental health professionals must recognize � and accept � two crucial elements of the therapeutic relationship. First, "[i]t is crucial that mental health professionals be aware of the diverse paths to intimacy."305 Second, "[i]n every instance and without exception, it is always the professional's responsibility to ensure that sexual intimacies with a client do not occur."306

Training Issues

"Another part of the problem seems to involve training programs, which spend relatively little time addressing issues of sexual contact with or even sexual attraction to clients."307 Pope blames this in part on the "sexualization of the student-teacher and student-supervisor relationships in training programs," which, he argues, "tends to prohibit open and honest discussion of the sexual feelings that are a normal part of many therapies."308

And professional sexual misconduct is not confined to patients. Studies dating back to the 1970s show that significant numbers of mental health professionals engage in sexual contact with students or trainees.309 In 1979, a nationwide survey of graduate students in psychology showed that 10% had "engaged in sexual relationships with their teachers and clinical supervisors. One out of four recent female graduates had engaged in such sexual relationships. Thirteen percent of the educators engaged in relationships with their students and supervisees."310 Interestingly, however, only 2% of respondents "believed that such relationships could be beneficial to trainees and educators."311 Such data may indicate that, even where training includes discussion of the problem of professional sexual misconduct, the example set by those doing the training may undermine the message.

A 1979 study by Pope, Levenson, and Schover also indicates that sexual contact between professional and student may have what Pope calls a "'modeling effect' for later professional behavior": Under this theory, students who engage in sexual contact with educators are more likely to engage in such contacts with patients when they become mental health professionals.312 While the sample of male students who engaged in sexual contact with educators was too small to be predictive, the sample of women who had been sexually involved with an educator was large enough to be measurable. Of women who had engaged in such contact as students, 23% reported that they had subsequently engaged in sexual contact with patients.313 Of women students who did not engage in such contact with educators, only 6% subsequently reported engaging in sexual contact with patients.314


"Still another part of the problem has been the massive denial of this problem among many professionals."315 As noted above, early attempts to study the phenomenon of professional sexual misconduct were met with what may be described at best as disinterest and distrust; in many instances, such efforts ended in deliberate stonewalling and attempts to suppress research and results.

"This couldn't happen to me" is how Norris, Gutheil, and Strasburger label the denial phenomenon in the context of professional sexual misconduct.316 Pope argues that this "denial is complicated by the discomfort most mental health professionals feel in a response to a very common phenomenon: sexual attraction to clients."317 Noting the results of studies cited above, he reports:

Research indicates that the vast majority (87%) of mental health professionals experience attraction to some of their clients, [and] most (63%) feel guilty, anxious, or confused about the attraction. So troubling is the attraction that about 20% of mental health professionals do not acknowledge it or discuss it with anyone. Thus, mental health professionals may experience difficulty in responding sensitively, professionally, and therapeutically to their own feelings of attraction to clients and may resist making use of resources developed to help mental health professionals who feel overwhelmed by such attraction and tempted to act it out with the client.318


Experts vary with regard to the possibility of rehabilitation for professionals who engage in sexual misconduct. Schoener appears to believe that some offenders can be rehabilitated; Pope, on the other hand, appears to believe that rehabilitation is unlikely, at least in the vast majority of cases. Schoener argues that "faulty assumptions" underlie the notion that mental health professionals who engage in sexual misconduct cannot be rehabilitated.319 Among these, he lists the following:

  • that "sexual misconduct is more harmful than other misconduct";
  • that most mental health professionals who engage in sexual misconduct are "sexual predators" or "compulsive sex offenders";
  • that any "clear and generally accepted definition of sexual misconduct" exists and that such a definition will clearly distinguish between those mental health professionals who can be rehabilitated and those who cannot;
  • that rehabilitation is impossible unless there is "a clear-cut therapeutic prescription" for handling sexual misconduct; and
  • that a professional who has engaged in sexual misconduct, once rehabilitated, must disclose those offenses to every potential patient or client.320

Schoener concedes that "public safety" must play a role in decisions that concern "client welfare."321 He also admits that "[t]here are professionals who should not be practicing . . . and who are not candidates for rehabilitation with current methods. As a matter of public safety, they should be removed from the field." However, he insists that, at least with some offenders, professional discipline can lead to "successful rehabilitation."322

Alternatively, Pope seems to view the concept of rehabilitation with general skepticism, pointing to underlying pathologies, high recidivism rates, and the lack of success of education and therapy in preventing professional sexual misconduct.323 He refers to a high-profile case reported by Bates and Brodsky:

One psychologist gained publicity by reporting a "nationwide survey" based on the conceptualization that sexually abusive mental health professionals were in fact "impaired professionals"; the survey findings, which received newspaper coverage, supported efforts to "rehabilitate" these professionals. The psychologist also made a presentation on the subject of rehabilitating perpetrators at an annual meeting of the APA. The general public and the professional community, however, were probably not aware that this psychologist had been engaging in therapist-patient sexual intimacies and, several years after the APA presentation, pleaded guilty to a sex abuse charge.324


Pope has perhaps summarized it best:

The therapeutic relationship is a special one, characterized by exceptional vulnerability and trust. People may talk to their mental health professionals about thoughts, feelings, events, and behaviors that they would never disclose to anyone else. Every state in the United States has recognized the special nature of the therapeutic relationship and the special responsibilities that mental health professionals have in relation to their clients by requiring special training and licensure for mental health professionals, and by recognizing a professional-patient privilege which safeguards the privacy of what patients talk about to their professional.325

It is this vulnerability that makes professional/patient sexual contact so uniquely harmful. Licensees ostensibly choose social work as a profession for the purpose of helping people deal successfully with mental, psychological, and emotional difficulties; they thus have a special obligation not to engage in conduct that seems virtually guaranteed to increase those difficulties.

Moreover, simply from the standpoint of the licensee's own self-interest, avoiding professional/patient sexual contact is the only reasonable course of action. Doing so avoids the possibility of numerous adverse consequences: professional sanctions, up to and including license revocation; civil litigation, including malpractice awards that can run to millions of dollars; and criminal penalties, which may include expensive fines, felony convictions, and even imprisonment.

A licensee who finds him- or herself in a situation that appears to have the potential to lead to professional/patient sexual contact should take affirmative steps to prevent it, including additional education and training, consultation with other professionals, and even transfer of the patient to another professional, if necessary. Taking such steps avoids potential harm to professional and patient alike.

End of text. Now take the course quiz.


[1] Tex. Occ. Code § 505 (1999).

[2] Id

[3] 22 Tex. Admin. Code Part 34, § 781.405 (West 2004).

[4] Gary Richard Schoener, Sexual Exploitation: A Historical Overview, The Walk-in Counseling Center, Minneapolis (1998).

[5] Id., citing Reiser, Dyck and Curran, quoting The Hippocratic Oath, W.H.S. Jones, trans., at 5 (1977).

[6] Kenneth S. Pope, Sex Between Mental health professionals and Clients, Encyclopedia of Women and Gender: Sex Similarities and Differences and the Impact of Society on Gender (Judith Worell, ed.) (Academic Press 2001).

[7] Schoener, supra note 4.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Gary Richard Schoener, Assessment & Rehabilitation of Psychomental health professionals Who Violate Boundaries With Clients, from a paper presented to the Norwegian Psychological Association (September 3-4, 1997) (available online at

[13] See id.

[14] See id.

[15] See id.

[16] See id., citing Gabbard, The Early History of Boundary Violations in Psychoanalysis, 43 J. Am. Psychoanalytic Assn. 1115-1136 (1995), and Gabbard and Lester, Boundaries and Boundary Violations in Psychoanalysis (Basic Books 1995).

[17] See id., citing Mason, The Assault on Truth (Farrar, Straus & Giroux 1984), 159-60.

[18] See id., citing Mason at 160.

[19] See Schoener, supra note 4, citing Peter Gay, Freud: A Life for Our Times (W.W. Norton 1988), 396.

[20] Id.

[21] Schoener, supra note 4, citing William McGuire, Ed., The Freud/Jung Letters: The Correspondence Between Sigmund Freud and C.G. Jung (Harvard University Press 1988), 236.

[22] Id., citing McGuire at 228.

[23] Id, citing McGuire at 231.

[24] Id., citing McGuire at 236.

[25] See Schoener, supra note 4, citing Linda Donn, Freud and Jung: Years of Friendship, Years of Loss (Collier Brooks 1990), 93.

[26] Id.

[27] Id., citing McGuire at 238.

[28] Id., citing Aldo Carotenuto, A Secret Symmetry: Sabrina Spielrein Between Jung and Freud (Pantheon Books 1984), 38.

[29] Id.

[30] Id., see also Schoener, Bruno Bettelheim Revisited, Minn. Psychologist 22 (March 1992).

[31] See id., citing Phyllis Grosskurth, The Secret Ring: Freud's Inner Circle and the Politics of Psychoanalysis (Addison-Wesley 1991), 56.

[32] See id.

[33] Id.

[34] See id., citing J.L. McCartney, Overt Transference, 2 J. Sex Research 227-37 (1966).

[35] See id.

[36] See id.

[37] See Schoener, supra note 12, citing Stepansky, Ed., The Memoirs of Margaret Mahler (Free Press 1988), 68-69.

[38] Id.

[39] See Schoener, supra note 12, citing W. Wolff, Ed.,Contemporary Psychomental health professionals Examine Themselves (1956), 87.

[40] See id., citing Susan Quinn, A Mind of Her Own (Addison-Wesley 1988), 378.

[41] See Schoener, supra note 4, citing B. Paris, Karen Horney: A Psychoanalyst's Search for Self Understanding (Yale University Press 1994), 142.

[42] See id., citing Paris at 143.

[43] See Schoener, supra note 12, citing Grosskurth (1986).

[44] See id.

[45] See id., citing F. Fromm-Reichmann, Reminiscences of Europe, in Psychoanalysis and Psychosis (A. Silver, Ed.) (International Universities Press 1989).

[46] See, e.g., Kenneth S. Pope, Professional-Patient Sex as Sex Abuse, from 21 Professional Psychology: Research and Practice 4, 227-39.

[47] See id.

[48] See id., citing M. Shepard, The Love Treatment: Sexual Intimacy Between Patients and Psychomental health professionals (Wyden 1971).

[49] See id.

[50] See id.

[51] Id.

[52] See id., citing C.C. Dahlberg, Sexual Contact Between Patient and Professional, 5 Contemporary Psychoanalysis 107.

[53] See id.

[54] See id.

[55] See id., citing J.J. Brownfain, The APA Professional Liability Insurance Program, 26 Am. Psychologist 651 (1971).

[56] See id.

[57] See id., citing S.H. Kardener, M. Fuller, and I.N. Mensch, A Survey of Physicians' Attitudes and Practices Regarding Erotic and Nonerotic Contact With Patients, 133 Am. J. Psychiatry 1324-25 (1973).

[58] See id., citing J.C. Holroyd and A.M. Brodsky, Psychologists Attitudes and Practices Regarding Erotic and Nonerotic Physical Contact With Clients, 32 Am. Psychologist 843-49 (1977).

[59] See id.

[60] See id.

[61] See id.

[62] Pierre Assalian and Marc Ravart, Management of Professional Sexual Misconduct: Evaluation and Recommendations, 3 J. Sex Reprod. Med. at 89 (2003).

[63] Id.

[64] See id. at 91.

[65] Id.

[66] See id.

[67] Id.

[68] See id.

[69] See id.

[70] See id.

[71] Id.

[72] Id.

[73] Id. at 91-92.

[74] Id. at 92.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] See Schoener, supra note 12, citing R.W. Medlicott, Erotic Professional Indiscretions, Actual or Assumed and Alleged, 2 Australian & New Zealand J. of Psychiatry 17-23 (1968).

[80] See id., citing G. Gabbard, Sexual Misconduct, in 13 Rev. of Psychiatry 433-56 (1994); G. Gabbard, Psychotherapits Who Transgress Sexual Boundaries With Patients, in Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy (J. Gonsiorek, Ed.) (Sage Publications 1995), 133-44; G. Gabbard, Transference and Countertransference in the Psychotherapy of Mental health professionals Charged With Sexual Misconduct, 25 Psychiatric Annals 100-05 (1995).

[81] See id.

[82] Id.

[83] See Schoener, supra note 12, citing R. Irons, An Inpatient Assessment Model for Offenders, in Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy (J. Gonsiorek, Ed.) (Sage Publications 1995), 163-75.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] See Schoener, supra note 12, citing R. Irons and J. Schneider, Sxual Addiciton: Significant Factor in Sexual Exploitation by Health Care Professionals and Clergy, 1 Sexual Addiction & Compulsivity 4-21 (1994).

[91] See id.

[92] See Schoener, supra note 12.

[93] Id.

[94] Id.

[95] See generally John C. Gonsiorek, Assessment for Rehabilitation of Exploitative Health Care Professionals and Clergy, in John C. Gonsiorek, ed., Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy 145,147-154 (Sage Publications 1995), cited in Elizabeth F. Kuniholm and Kim Church, Psychoprofessional Malpractice at 7, (Kuniholm Law Firm 2002) (adapted from ATLA: Litigating Tort Cases, Ch. 55 ("Sexual Abuse") (West and ATLA 2003)).

[96] See Schoener, supra note 12.

[97] Id.

[98] Id.

[99] Donna M. Norris, Thomas G. Gutheil, and Larry H. Strasburger, This Couldn't Happen to Me: Boundary Problems and Sexual Misconduct in the Psychotherapy Relationship, 54 Psychiatric Serv. 517-22 (April 2003).

[100] See id.

[101] See id.

[102] See id.

[103] See id.

[104] See id.

[105] See id.

[106] See id.

[107] See id.

[108] Schoener, supra note 11.

[109] Id.

[110] See Kenneth S. Pope, How Clients are Harmed by Sexual Contact With Mental Health Professionals: The Syndrome and Its Prevalence, 67 J. Counseling Dev. 222, 223 (December 1988).

[111] Id. at Table 2.

[112] Id.

[113] Id.

[114] Id.

[115] See id.

[116] See id.

[117] See id.

[118] See id.

[119] See id.

[120] Id.

[121] Id. at 222.

[122] See id.

[123] See Elizabeth F. Kuniholm and Kim Church, Psychoprofessional Malpractice at 7-8, (Kuniholm Law Firm 2002) (adapted from ATLA Litigating Tort Cases, Ch. 55 ("Sexual Abuse") (West and ATLA 2003)), citing Robert Simon, Bad Men Do What Good Men Dream, (American Psychiatric Press 1996), 135-36, citing K.S. Pope & J.C. Bouhoutsos, Sexual Intimacy Between Mental health professionals and Patients (Praeger 1986).

[124] See Norris, et al., supra note 99.

[125] See id.

[126] See id.

[127] See id.

[128] See id.

[129] See id.

[130] Kuniholm and Church, supra note 95, at 2-3.

[131] See Stephen B. Bisbing, Linda Mabus Jorgenson, and Pamela K. Sutherland, Sexual Abuse by Professionals: A Legal Guide, § 12-5 (c) (1995 & Cum. Supp. 2000), 470-80.

[132] Robert Simon, Psychological Injury Caused by Boundary Violation Precursors to Professional-Patient Sex, 21 Psychiatric Annals 614, 617 (1991).

[133] Kuniholm and Church, supra note 94, at 5.

[134] Kenneth S. Pope, How Clients are Harmed by Sexual Contact With Mental Health Professionals: The Syndrome and Its Prevalence, 67 J. Counseling Dev. 222, 223 (December 1988).

[135] Id.

[136] See Pope, Sexual Attraction to Clients: The Human Professional and the (Sometimes) Inhuman Training System (available online at, citing L. Durre Comparing Romantic and Therapeutic Relationships, in On Love and Loving: Psychological Perspectives on the Nature and Experience of Romantic Love (K.S. Pope, Ed.) (Jossey-Bass 1980), 243.

[137] Id.

[138] Id.

[139] See id., citing J. Bouhoutsos, J. Holroyd, H. Lerman, B. Forer, and M. Greenberg, Sexual Intimacy Between Psychomental health professionals and Patients, 14 Prof. Psychology 185-96 (1983).

[140] See id.

[141] See id.

[142] See id.

[143] See id.

[144] See id.

[145] See Pope, supra note 6.

[146] See id.

[147] See id.

[148] See id.

[149] See id.

[150] See id.

[151] See id.

[152] See id.

[153] See id.

[154] See id.

[155] See id.

[156] See id.

[157] See id.

[158] See id.

[159] See id.

[160] See id.

[161] See id.

[162] See Pope, supra note 136, citing L.E. Tower, Countertransference, 4 J. Am. Psychoanalytical Assn. 224-55 (1956).

[163] See id., citing C. Thompson, Psychoanalysis Evolution and Development (Hermitage House 1950).

[164] See id., citing R. Fine, Erotic Feelings in the Psychotherapeutic Relationship, 52 Psychoanalytic Rev. 30-37.

[165] See id., citing S.I. Abramowitz, C.V. Abramowitz, H.B. Roback, R.T. Comey, and W. McKee, Sex-Role Related Countertransference in Psychotherapy, 33 Archives of General Psychiatry 71-73 (1976).

[166] See id., citing L.R. Schover, Male and Female Mental health professionals' Responses to Male and Female Client Sexual Material: An Analogue Study, 10 Archives of Sexual Behavior 477-92 (1981).

[167] See id., citing H.R. Searles, Oedipal Love in the Countertransference, in Collected Papers on Schizophrenia and Related Subjects (International Universities Press 1965), 284-303.

[168] See Pope, supra note 136.

[169] See id.

[170] Id.

[171] See id.

[172] Id.

[173] Id.

[174] Id.

[175] Id.

[176] Pope, supra note 136.

[177] See, e.g., Daniel Goleman, "New Focus on Preventing Patient-Professional Sex," The New York Times, Dec. 20, 1990, at B21.

[178] See John D. Winer, "$600,000 � Psychologist-in-Training Sues Psychoanalyst for Negligence and Abuse," "Significant Cases," available online at

[179] Pope, supra note 46.

[180] See id.

[181] See id.

[182] O. Brandt Caudill, Jr., Twelve Pitfalls for Psychomental health professionals, in "Legalities," Family Therapy News (October/November 2000), at 17.

[183] See id.

[184] Tex. Occ. Code § 505 (1999).

[185] See the Web site of the Texas State Board of Social Worker Examiners available online at: link to the Texas Administrative Code Rule 781.405 found at:$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti= 22&pt=34&ch=781&rl=405

[186] Irons, Richard, The Sexually Exploitive Professional: An Addiction Sensitive Model for Assessment. 2nd Monograph of the Annual Conference on Addiction: Prevention, Recognition and Treatment, November, 1991.

[187] 22 Tex. Admin. Code Part 34, § 781.405 (West 2004).

[188] See id. at subsection (2) (b) (1)(2)(3)

[189] See id. at subsection (c).

[190] Tex. Penal Code tit. 5, § 21.01 (West 2003).

[191] Tex. Penal Code tit. 5, § 21.01(1) (West 2003).

[192] See id. subsection (2)

[193] Texas Penal Code tit. 5, § 21.01(c) (West 2003).

[194] See id. subsection (3)

[195] 22 Tex. Admin. Code Part 34, § 781.405(a)(4) (West 2004).

[196] 22 Tex. Amin. Code Part 34, § 781.405 (h)

[197] 22 Tex. Amin. Code Part 34, § 781.405 (h) (1) (A) (6)

[198] Caudill, supra note 182.

[199] See id.

[200] 22 Tex. Admin. Code Part 34, § 781.405(2) (West 2004).

[201] See e.g., Linda Jorgenson and Pamela K. Sutherland, Liability of Physicians, Mental health professionals and Other Health Professionals for Sexual Misconduct With Patients, (1993).

[202] 22 Tex. Admin. Code Part 34, § 781.405(g) (West 2004).

[203] See id.

[204] See id. at subsection (g) (3).

[205] See id. at subsection (g) (4) (B)

[206] See id. at subsection (g) (4) (A)(C)(D).

[207] See id. at subsection (g)(1)

[208] See id. at subsection (g)(2)

[209] See Pope, supra note 46.

[210] See id.

[211] See 22 Tex. Admin. Code Part 34, § 781.405(g)(2) (West 2004).

[212] See Pamela K. Sutherland, Sexual Abuse by Mental health professionals, Physicians, Attorneys, and Other Professionals, (WWLIA 1996) (available online at

[213] See Title 22, PART 34, Chapter 781, Subchapter H, of the Texas Administrative Code

[214] See id.; see also "Types of Disciplinary Actions," available online on the Web site of the Texas Department of State Health Services at:

[215] See id.

[216] See web-site of Department of State Health Services, Texas State Board of Social Worker Examiners Enforcement Actions, available online at: and Texas State Board of Examiners of Licensed Professional Counselors, available online at:

[217] See See Title 22, PART 34, Chapter 781.603 (k), Subchapter F, of the Texas Administrative Code

[218] Schoener, supra note 12.

[219] Id.

[220] Id.

[221] Id.

[222] See generally, Jorgenson and Sutherland, supra note 201.

[223] See id.

[224] 436 S.W.2d 753 (Mo. 1968).

[225] See Jorgenson and Sutherland, supra note 201.

[226] See id.

[227] See id.

[228] See id. (citing Zipkin, supra note 224, at 755-56).

[229] See id.

[230] Elizabeth F. Kuniholm and Kim Church, Psychoprofessional Malpractice, adapted from "Sexual Abuse," ATLA: Litigating Tort Cases (West/ATLA 2003).

[231] Zipkin, supra note 224, at 761.

[232] See generally, "Significant Cases," Web site of John D. Winer, available online at

[233] See id. at "$500,000 � Woman's Psychological Condition Deteriorates as Result of Psychiatrist Malpractice and Abuse"

[234] See id. at "$490,000 � Psychiatrist Addicts Patients to Tranquilizers and Begins Living With Patient and Her Family."

[235] See Winer, supra note 232.

[236] American Home Assurance Co. v. Stephens, (5th Cir. 1997).

[237] See id.

[238] See id.

[239] See id.

[240] See id.

[241] See id.

[242] See Jorgenson and Sutherland, supra note 201.

[243] 381 N.Y.S. 2d 587 (1976).

[244] See Jorgenson and Sutherland, supra note 201.

[245] See Roy, supra note 195.

[246] See Jorgenson and Sutherland, supra note 201 (citing Zipkin, supra note 237, at 755-56).

[247] 243 Cal. Rptr. 807 (Cal. App. 1988).

[248] Id. at 810.

[249] 770 P.2d 278 (Cal. 1989).

[250] See id.

[251] See generally, Black's Law Dictionary, Sixth Edition (West 1990).

[252] 934 F. Supp. 680 (E.D. Pa. 1996).

[253] See id.

[254] See Jorgenson and Sutherland, supra note 201.

[255] See generally, Black's Law Dictionary, Sixth Edition (West 1990).

[256] 263 So.2d 256 (Fla. Dist. Ct. App. 1972).

[257] See id.

[258] 698 S.W.2d 94 (Tex. 1985).

[259] See id.

[260] See Anclote Manor, supra note 256.

[261] See Marlene F., supra note 249.

[262] See Anclote Manor, supra note 256.

[263] See Marlene F., supra note 249.

[264] See Richard H., supra note 247.

[265] 300 S.E.2d 833 (N.C. Ct. App. 1983).

[266] See id.

[267] 584 A.2d 69 (Md. 1991).

[268] See id.

[269] See Norton v. Macfarlane, 818 P.2d 8 (Utah 1991).

[270] 599 A.2d 1193 (Md. App. 1992).

[271] See Jorgenson and Sutherland, supra note 201 (citing Homer, supra note 283).

[272] See id.

[273] See id.

[274] See Jorgenson and Sutherland, supra note 201.

[275] 732 F.2d 366 (4th Cir. 1984).

[276] See id.

[277] See Jorgenson and Sutherland, supra note 201.

[278] Restatement (Second) of Agency, § 228 (1958).

[279] Id.

[280] See Jorgenson and Sutherland, supra note 201.

[281] 329 N.W.2d 306 (Minn. 1982).

[282] See Jorgenson and Sutherland, supra note 201.

[283] See id.

[284] See Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990).

[285] Id.

[286] Jorgenson and Sutherland, supra note 201.

[287] 547 N.E.2d 244 (Ind. 1989).

[288] Id.

[289] See Jorgenson and Sutherland, supra note 201.

[290] 732 F.2d 366 (4th Cir. 1986).

[291] Jorgenson and Sutherland, supra note 201.

[292] 379 N.W.2d 189 (Minn. App. 1985).

[293] Jorgenson and Sutherland, supra note 201.

[294] 520 N.E.2d 139 (Mass. 1988).

[295] Jorgenson and Sutherland, supra note 201.

[296] See AdvocateWeb at: (Copyright 1998-2004) AdvocateWeb. Retrieved March, 2006

[297] Texas Penal Code 21.011. See Web-Site Texas Sex Crimes Defense at: . Retrieved March, 2006

[298] AdvocateWeb, September 1, 1999. Texas Legislature Takes Action to Better Protect Mental Health Patients. Special Report. See: Retrieved March 2006.

[299] See Id

[300] From the Web-site of the Law Offices of SJ Spero & Associates, P.C. found at: . Retrieved March, 2006

[301] See Kenneth S. Pope, How Clients are Harmed by Sexual Contact With Mental Health Professionals: The Syndrome and Its Prevalence, 67 J. Counseling & Dev. 222 (Dec. 1988).

[302] Id.

[303] See id.

[304] Id.

[305] Id.

[306] Id. (emphasis added).

[307] Id.

[308] Id.

[309] See Pope, supra note 134.

[310] Id.

[311] See id.

[312] Id.

[313] See id.

[314] See id.

[315] Pope, supra note 297.

[316] Donna M. Norris, Thomas G. Gutheil, and Larry H. Strasburger, This Couldn't Happen to Me: Boundary Problems and Sexual Misconduct in the Psychotherapy Relationship, 54 Psychiatric Serv. 517-22 (April 2003).

[317] Pope, supra note 297.

[318] Id. at 222-23.

[319] See Schoener, supra note 12.

[320] See id.

[321] See id.

[322] Id.

[323] See Pope, supra note 46.

[324] Id.

[325] Pope, supra note 6.



End of text. Now take the course quiz.