When someone goes to a therapist or psychologist, they are often in a vulnerable state. As treatment progresses, they may start feeling attracted to their therapist, who comforts and supports them. But no matter how strong the attraction, psychologists, therapists, and other registered mental health professionals are expected to avoid engaging in sexual relationships with their patients to avoid taking advantage of their clients. Doing so can cause severe damage to the mental health of the patient. Under California law, it is not just unethical; it’s also illegal for therapists to have sex with patients.
Why Can’t Therapists Have Sex With Patients?
To get licensed, therapists and psychologists must agree to uphold several ethical codes and legal statutes defined in the Business and Professions Code (BPC). These standards make it a crime for a therapist to break confidentiality with a patient, and also prohibit unprofessional conduct.
Business and Professions Code Section 729 (BPC) specifies that it is a crime for therapists as sexual relations between patients and their counselors. The code specifically outlaws “an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client,” stating that this is a form of sexual exploitation, a criminal offense. Sexual conduct is further defined as “sexual intercourse or the touching of an intimate part of the patient for the purpose of sexual arousal, gratification, or abuse.”
This law does not make an exception for consensual acts, even when the patient initiated the encounter. Additionally, it does specify that the parties need to have had sexual intercourse as long as one party touched the genitals of another for sexual purposes.
If the client claims the act was not voluntary, additional charges such as rape, forced oral copulation, or unlawful sodomy could also be filed.
What Happens When a Therapist Sleeps with a Client?
Violations of the Business and Professions Code can result in probation, suspension, revocation, or suspension of a professional license at the discretion of The Board of Behavioral Sciences or the California Board of Psychology.
But this act isn’t just a civil matter. If a therapist has sex with a patient, they can also face criminal charges under 729 (BPC). In most cases, this offense is charged as a misdemeanor punishable by up to 6 months in jail and a fine of $1000. For non-consensual criminal acts, the therapist must also register as a sex offender.
However, if it has been found that a mental health professional had sexual relationships with two or more victims or if the individual has a prior conviction and has at least two sexual encounters with the same patient though, the crime may be charged as a felony or misdemeanor. As a misdemeanor, these more serious charges are punishable by up to a year in jail and a fine of $1,000. As a felony, the penalty increases to up to 3 years in prison and a fine of up to $10,000.
Regardless of the licensing board’s decision, anyone convicted in the criminal courts will be prohibited from providing mental health services until they have completed the terms of their sentencing, including their probation.
Related Criminal Offenses
If you have been accused of other crimes, such as forced sex charges, statutory rape, or indecent exposure, you may face additional penalties, many of which require mandatory registration on the sex offender list. These charges require the immediate advice and support of a skilled criminal defense attorney.
Can Therapists Sleep With Former Patients?
The American Psychological Association requires psychologists to wait at least two years since they discontinued their professional relationship with a patient before they can initiate a romantic relationship. They emphasize that this is a bare minimum before this type of relationship can be considered ethical, although many in the industry claim it is never acceptable. However, like all discussions of ethics, few things are so cut and dry, and there are always exceptions to the rules. For example, it is one thing for a therapist to date a patient of ten years a day after the minimum two-year window has passed and another thing for them to start seeing someone who had one appointment with and never saw again for a decade.
As for the law, in California, a therapist will not face criminal charges for dating a former patient —as long as there is no evidence that they terminated their professional relationship primarily to engage in a romantic partnership. However, a mental health professional can still avoid legal trouble if they first refer the patient to an independent psychotherapist or counselor recommended by a third party in the same profession.
Who Else is Bound by 729 (BPC)?
Psychologists and therapists are not the only people required to follow this law. It also applies to drug and alcohol counselors, surgeons, and physicians. Surgeons and doctors, however, are legally permitted to touch the genitals of patients as long as they do so for legitimate medical purposes and not for sexual gratification. Similarly, while it is never acceptable for a mental health provider to start treating their spouse, a doctor or surgeon can provide medical services to their husband or wife.
Fighting the Criminal Charges
If you have been accused of this crime, never speak with the police or the alleged victim without an attorney present. It is easy to accidentally do something that can hurt your defense, particularly if you make the mistake of claiming the other party initiated or consented to the act.
The Business and Professions Code explicitly states that patient consent is not a defense against the sexual exploitation of a patient because it is assumed that someone providing mental health or medical services to a person in need could easily manipulate the patient into consenting to something they would not otherwise agree to. Also, while it is legal to have a relationship with a former patient, it is illegal to terminate a professional relationship solely to start dating a client, so saying that someone is a former patient may not necessarily help your case.
Like anyone else facing criminal charges, the best thing a therapist, psychologist, or doctor can do when they have been accused of having sex with a patient is to call a lawyer. The best defense will depend on the specifics of the case, and it’s best to stay silent until you and your attorney have all the facts. Just as you don’t want to confess by saying the patient initiated the contact, you don’t want to flatly deny the charges if it turns out that police have already seized emails, texts, love notes, or obtained a warrant to record a phone call or session with the patient.
Claiming that you were providing sexual therapy services is also not a good defense. While there are people known as “sexual surrogates” who work in the legal gray area between prostitution and therapy, these people are working in their own specialty, which is not bound by the Business and Professions Code that guides the conduct of therapists, psychologists, and doctors. If a psychotherapist truly believes their patient may need such a service, they must make a referral to a sexual surrogate and not attempt to do the work themselves.
If you are a therapist, counselor, psychologist, doctor, surgeon, or other professional bound by section 729 (BPC) and you have been accused of having sex with a patient, please call Peter M. Liss at (760) 643-4050 or (858) 486-3024.