Before answering the question—is it illegal for a therapist to sleep with a patient, we need to decipher between illegal and unethical. It is ALWAYS unethical for a therapist to sleep with a client. We will address that in a bit. But whether the abuse is illegal depends on what state you live in. Sadly, only about half of the states in the U.S. have criminal legislation against therapist abuse or therapist sexual involvement with a patient.
According to Advocate Web, 24 U.S. states have laws making it illegal for a therapist to have sex with a patient. To see where your state stands on this issue, click here: https://amynordhues.com/states-with-laws-outlawing-psychiatrist-patient-and-psychotherapist-patient-sexual-relationships/
But even more complicated, of these 24 states some do not require criminal background checks. Yes, you heard that correctly. Minnesota, Michigan, Iowa, and Illinois for example, have laws against therapist sexual involvement with clients yet they do not require therapists to have criminal background checks! This makes no sense.
Finally, many of the states without legislation do require background checks. I suppose a client can learn that the therapist they are about to see is a convicted felon, but they will still be in the dark about whether the therapist has a pattern of exploiting patients in therapy. Good grief.
Let’s Look at Colorado’s Therapist Abuse Legislation
Colorado has laws prohibiting therapists from sexually exploiting clients.
C.R.S. § 18-3-405.5. Sexual assault on a client by a psychotherapist
(1)(a) Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits aggravated sexual assault on a client if:
(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or
(II) The actor is a psychotherapist and the victim is a client and the sexual penetration or intrusion occurred by means of therapeutic deception.
(b) Aggravated sexual assault on a client is a class 4 felony.
(2)(a) Any actor who knowingly subjects a victim to any sexual contact commits sexual assault on a client if:
(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or
(II) The actor is a psychotherapist and the victim is a client and the sexual contact occurred by means of therapeutic deception.
(b) Sexual assault on a client is a class 1 misdemeanor.
(3) Consent by the client to the sexual penetration, intrusion, or contact shall not constitute a defense to such offense.
(4) As used in this section, unless the context otherwise requires:
(a) “Client” means a person who seeks or receives psychotherapy from a psychotherapist.
(b) “Psychotherapist” means any person who performs or purports to perform psychotherapy, whether the person is licensed or registered by the state pursuant to title 12, C.R.S., or certified by the state pursuant to part 5 of article 1 of title 25, C.R.S.
Note that the crime is considered a class 4 felony when the “intrusion occurred by means of therapeutic deception” which is often the case. Criminal Defense Attorney, Dan Murphy explains that Class 4 felonies include some cases of property theft, manslaughter, identity theft, sexual assault, and vehicular homicide.
It is especially important to note that therapists who engage in sex with clients are considered guilty of a crime even when the client offers consent. “Consent by the client to the sexual penetration, intrusion, or contact shall not constitute a defense to such offense.”
Therapist Sexual Involvement with Patients is Illegal Even When Patients Consent
Why is this noteworthy? Because the legislators know that a client in therapy cannot give consent. The power differential is too large. The attachment too strong. The fear of loss too great. When therapists have sex with clients who may think they are consenting, they can still be charged with a class 1 misdemeanor. A misdemeanor seems hardly fair but at least the powers that be are acknowledging that the behavior the therapist engaged in was criminal in nature.
Now let’s get back to our distinction between illegal and unethical. When I was abused by my therapist/psychiatrist in 2014, people asked me why he didn’t go to jail. They wanted to know why I didn’t go to the police. Simple. Because what Dr. Dolion did to me is not a crime in Oklahoma. Bewilderment crept across their faces. I would have to reiterate, it is unethical, yes, but in Oklahoma what Dr. Dolion did to so many vulnerable women under the guise of Christian counseling is not illegal. Alabama, Delaware, Hawaii, and Indiana are a few more states that allow therapist abuse to go criminally unpunished.
Victims May Report Abusive Therapists to Regulatory Boards
Are there avenues for justice if the criminal justice system cannot help? Yes. A victim can report to the regulatory board depending on the license the practitioner holds. Psychologists, psychiatrists, licensed professional counselors, and social workers all have their own regulations and regulatory boards. For more on reporting options, click here: https://amynordhues.com/therapist-abuse-what-are-your-options/.
I reported my abuser to the Oklahoma Medical Board because he was a psychiatrist who practiced therapy. Just be aware that although there are many positive reasons to report—justice, standing up for yourself, stopping the offender from hurting others—it can be a very stressful and arduous process. I can say that after a nine-month long investigation, my abuser surrendered his license permanently.
Considering the damage this predator did to so many, he deserved to be registered as a sex offender, but I knew that criminal charges were off the table. One of the investigators on the medical board told me that he thought I might have a strong enough case to prove rape, but several attorneys skilled in this area told me, “If you file criminal charges, it will be brutal for you and your family, and the perpetrator will likely walk.” No, thank you. I had been through enough.
But I thought you said it was not illegal in Oklahoma? To clarify, in Oklahoma there are no criminal repercussions when therapists have sex with clients. Rape, however, is still a crime, but these attorneys were essentially saying, good luck proving rape and good luck surviving the ordeal. Sad what victims are put through, especially the crime of sexual assault.
Malpractice Lawsuits are Another Avenue of Justice Available to Therapist Abuse Victims
So, what did I do? I filed a medical malpractice lawsuit. Be forewarned that many attorneys are untrained in this area which can result in further trauma for victims. Find a lawyer who specializes in abuse of power, namely therapist and clergy abuse. You can find some skilled attorneys on my website, here: https://amynordhues.com/resources/
Filing this malpractice suit provided me with another opportunity to fight for myself, to stand up to the perpetrator, and to seek justice, but any victim can tell you that civil suits are not without their stressors and are not to be taken lightly. After three long years, the suit was successful, and I was glad I fought, but I can tell you that the “win” did not take away the pain and the hurt and the anger. In fact, my healing journey probably began the day that suit ended.
Let’s recap. We have concluded that therapist sexual abuse is illegal in some states, and it is unethical everywhere. But because so many people—victims and onlookers alike—get hung up on the idea of a sexual relationship between a therapist and a client being mutual—they’re both adults—that I want to look at the ethical guidelines for therapists.
Ethical Guidelines for Therapists Regarding Sexual Contact with Patients
According to the National Board for Certified Counselors, “Counselors will not engage in any form of sexual or romantic contact with a client or former client for at least five (5) years following the date of counseling service termination.”
Michael Kocet, the ACA Ethical Code Revision Task Force Chair states, “The 2005 ACA Code of Ethics continues to recognize the harm that can be impacted upon clients when they are sexually intimate with their counselor. The counseling relationship is one based on trust, so we must respect the power differential inherent in any counseling relationship regardless of the counselor’s theoretical orientation or perspective. Engaging in any type of sexual or intimate relationship with a current client is abuse of power. Clients come into counseling emotionally and psychologically vulnerable and in need of assistance, so a counselor trying to engage in such relationships would be trying to take advantage of that client and their vulnerabilities to meet their own needs.”
Is it Ethical to Sleep with a Patient After Therapy Has Concluded?
In a Counseling Today article entitled Romantic/sexual relationships by Davd Kaplan, it states, “As mentioned earlier, the 2005 ACA Code of Ethics increases the prohibition on sexual and romantic interactions with former clients. The old 1995 code stated that counselors were to avoid sexual intimacies with former clients within two years of termination. The revised 2005 code expands the time frame to five years.”
ACA Ethical Code Revision Task Force Chair, Michael Kocet adds, “While some may see the exact number of years delineated as arbitrary, the reason a ban on sexual/romantic relationships with former clients was increased to five years was that we wanted there to be a little more time for the counselor to be reflective and to give more time for closure of the counseling relationship. It is really important that enough time has passed for the power differential to be resolved. It is also important to recognize that counselors can decide to make the personal choice to never engage in romantic or sexual relationships with former clients even though the ACA Code of Ethics allows one to do so after a five-year waiting period.”
Where Does the American Association of Christian Counselors Stand on the Issue?
1-130 Sexual Misconduct Forbidden
All forms of sexual misconduct, and every kind of sexual exploitation, deception, abuse, or harassment in pastoral, professional or lay relationships are unethical. This includes relations where the sexual involvement is invited or informed consent presumably exists—such apparent consent is illusory and illegitimate.
1-131 Sexual Relations with Former Clients Forbidden
All sexual relations as defined in 1-130 above with former clients are unethical. Furthermore, we do not terminate and refer clients or parishioners, even at first contact, in order to pursue sexual or romantic relations.
To read The Hope of Survivors article in its entirety, click here: http://www.thehopeofsurvivors.org/excerpts-aacc-christian-counseling-code-ethics/#:~:text=All%20forms%20of%20sexual%20misconduct,consent%20is%20illusory%20and%20illegitimate.
The Power Imbalance Between Therapist and Patient Rarely Equalizes
In my first-hand experience, the power differential between therapist and client rarely if ever equalizes. While waiting five years after the therapeutic relationship has ended is far better than crossing boundaries after two years or heaven forbid, during the therapy process, nothing magical happens at the five-year mark. Trying to merge the relationship into one of equals doesn’t work and usually ends up hurting the one without power, the client.
I like the way Renee Fabian explains it in her article, It’s Normal to Have Sexual Feelings for Your Therapist (But They Should Never Have Sex With You), “Keep in mind your therapist is 100% responsible for maintaining an appropriate relationship, which should never include sex. Your therapist also should not cross this boundary after you have ended the therapeutic relationship. The power imbalance doesn’t disappear when the therapy stops.”
Once your therapist, always your therapist. Once a patient, always a patient.