Can I Sue My Therapist for Professional Misconduct?

This weeks question comes from Sheila P. in San Francisco who asks, “Amy, my best girlfriend, just confided in me that she and her therapist had sex. She went to see this therapist because of sexual trauma she suffered as a child. She’s really freaked out and confused. On one hand she doesn’t want to get the therapist in trouble but on the other hand she feels like she’s being taken advantage of. I can see that it’s tearing her apart. Isn’t this illegal? What can be done about it?”

Dear Sheila: thank you for reaching out on behalf of your friend. She really does need some guidance at this point and it’s a tragedy that the person she turned to for help took advantage of her vulnerabilities and abused their position and power. Like any profession, the majority of psychotherapists are good caring persons who enter their field so as to help people.Psychotherapy provides benefits to millions and this column, in no way, is a condemnation of the whole profession. It is a guide to help people who have been abused to assert their rights and to protect others from these predators. The law is absolutely clear, this is illegal.

Throughout my career I have handled a shockingly large number of these cases. I’ve seen predatory therapists who were both men and women. I have seen this in situations where the sex of the therapist and the patient has been the same and where they have been different.

Therapists are licensed by the State and are regulated not only by a series of ethical codes but by legal statutes contained within the Business and Professions Code (B & P) as well as the Penal Code. Section 726 of the B & P provides that the commission of any act of sexual abuse, misconduct, or relations with a patient constitutes unprofessional conduct and is grounds for disciplinary action against any licensed psychologist.

B & P Section 729, subdivision (a), states that a psychotherapist who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client is guilty of sexual exploitation which is a criminal offense. Sexual contact is defined as sexual intercourse or the touching of an intimate part of the patient for the purpose of sexual arousal, gratification, or abuse. Section 729, subdivision (b) clearly states that in no instance shall consent of the patient . . . be a defense. Other criminal statutes may also be applicable such as sexual battery, rape, etc.

As a crime has been committed, the Police Department should be notified of this conduct immediately and they will initiate an investigation. I’ve seen evidence gathered through telephone recordings, e-mails, love notes and even concealed video cameras which provided dis-positive evidence leading to conviction and license revocation.

In more than one case I have seen a psychotherapist try to avoid liability/culpability by claiming that they were engaged in a form of therapy which was not for the purpose of their own sexual arousal or gratification but, instead, was a form of therapy designed solely for the patient’s benefit and provided at the patient’s request. Shockingly, they often claim that they have been set up by the patient. Many of these therapists think that they are going to be able to talk their way out of responsibility.

The professional licensing board which governs psychotherapists is the California Board of Psychology, Department of Consumer Affairs. B & P Section 2960 empowers the Board to suspend, revoke, or place on probation, a licensed therapist for unprofessional conduct which includes any active sexual abuse, or sexual relations with a patient (or former patient within two years following termination of therapy) or other sexual misconduct which is substantially related to the qualifications or duties of a psychologist.

Sheila, your friend is being manipulated and violated. She needs your help to contact the authorities and get out of this but healthy and abusive relationship. Tell her it’s not her fault because it isn’t. Let her know you love her and support her. The police have compassionate, understanding, competent officers to support her during their investigation and prosecution.

In addition to the criminal action your friend also has rights under the civil law to prosecute the therapist for recovery of monetary damages. So, in addition to contacting the police, she should contact a trial lawyer with experience in this area of therapist sexual abuse to put an end to this abuse of power.

By attorney Christopher B. Dolan, owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com