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By: Ofer Zur, Ph.D.
Those parts of California Law most relevant to the topics of law and dual relationships, sexual relationships and boundaries in psychotherapy and counseling are in the following sections of the Business and Professional Code of California.
For regulations online:
For how long to keep records in California after termination, click here.
Brochure: Professional Therapy Never Includes Sex
The California Department of Consumer Affairs published the brochure, Professional Therapy Never Includes Sex, which includes the following references to termination.
Introduction: Professional psychotherapy never includes sex. It also never includes verbal sexual advances or any other kind of sexual contact or behavior. Sexual contact of any kind between a therapist and a patient is unethical and illegal in the state of California. Additionally, with regard to former patients, sexual contact within two years after termination of therapy is also illegal and unethical. (P.5)
Therapists are trusted and respected, and it is common for patients to admire and feel attracted to them. However, a therapist who accepts or encourages these normal feelings in a sexual way – or tells a patient that sexual involvement is part of therapy – is using the trusting therapy relationship to take advantage of the patient. And once sexual involvement begins, therapy for the patient ends. The original issues that brought the patient to therapy are postponed, neglected, and sometimes lost. (p. 5)
More About Criminal Action: Sexual exploitation of patients by therapists is wrong. The law makes it a crime for a therapist to have sexual contact with a patient. For a first offense with only one victim, an offender would probably be charged with a misdemeanor. For this charge, the penalty may be a sentence of up to one year in county jail, or up to $1,000 in fines, or both. Second and following offenses, or offenses with more than one victim, may be misdemeanors or felonies. The penalty in such felony cases can be up to three years in prison, or up to $10,000 in fines, or both.
This law applies to two situations:
The therapist has sexual contact with a patient during therapy, or
The therapist ends therapy primarily to start having sexual contact with the patient (unless the therapist has referred the patient to an independent and objective therapist who has been recommended by a third-party therapist). (p. 19)
Patient Bill of Rights
Patients have the right to:
Refuse a particular type of treatment, or end treatment without obligation or harassment. (p. 24)
(Emphasis in bold was added)
Brochure: A Consumer Guide to Psychological Services: For Your Peace of Mind
The California Board of Psychology published the brochure, For Your Peace of Mind, which includes the following references to termination.
Psychologists should NEVER:
Have any type of sexual contact with a patient or a former patient within two years after termination of therapy. This would include inappropriate touching, kissing and sexual intercourse. This type of behavior is NEVER appropriate, and it is cause for mandatory revocation of the psychologist’s license.
Abandon their patients. It is cause for discipline for a psychologist to abandon a patient. If your treatment is terminated abruptly and you still require treatment, your psychologist is required to provide you with the names and telephone numbers of other practitioners who have the appropriate education, training and experience to take you on as a patient and continue your treatment.
Are Psychologists Required to Report Unprofessional Conduct by Colleagues? This question is most often raised by psychologists after a patient informs them of a sexual relationship with one or more previous therapists. All psychotherapists who are advised by a patient of sexual involvement with another therapist are required by law to give that patient the pamphlet titled “Professional Therapy NEVER Includes Sex.” This pamphlet explains it is illegal for a therapist to have sex with a patient (or with a former patient within two years after the termination of therapy) and to explain the options available. You can contact the Board by telephone at (916) 263-2696 for a free copy of this pamphlet or you can download it from the Board’s Web site (http://www.psychology.ca.gov). Just click on “Publications” to access the pamphlet online.
The California Business and Professional Code on Termination and Abandonment (Board of Psychology, Board of Behavioral Sciences)
Sexual Relations with Patients
726. The commission of any act of sexual abuse, misconduct, or relations with a patient, client, or customer constitutes unprofessional conduct and grounds for disciplinary action for any person licensed under this division, under any initiative act referred to in this division and under Chapter 17 (commencing with Section 9000) of Division 3.
This section shall not apply to sexual contact between a physician and surgeon and his or her spouse or person in an equivalent domestic relationship when that physician and surgeon provides medical treatment, other than psychotherapeutic treatment, to his or her spouse or person in an equivalent domestic relationship. Subdivision (2) of Section 1103 of Evidence Code Applies
727. The provisions of subdivision (2) of Section 1103 of the Evidence Code shall apply in disciplinary proceedings brought against a licensee for acts in violation of Section 726. Provision of Brochure by Psychotherapist to Patient Alleging Sexual Intercourse or Contact With Previous Psychotherapist During Course of Prior Treatment.
728. (a) Any psychotherapist or employer of a psychotherapist who becomes aware through a patient that the patient had alleged sexual intercourse or alleged sexual contact with a previous psychotherapist during the course of a prior treatment, shall provide to the patient a brochure promulgated by the department that delineates the rights of, and remedies for, patients who have been involved sexually with their psychotherapist. Further, the psychotherapist or employer shall discuss with the patient the brochure prepared by the department.
(b) Failure to comply with this section constitutes unprofessional conduct.
(c) For the purpose of this section, the following definitions apply:
(1) “Psychotherapist” means a physician and surgeon specializing in the practice of psychiatry or practicing psychotherapy, a psychologist, a clinical social worker, a marriage and family therapist, a psychological assistant, marriage and family therapist registered intern or trainee, or associate clinical social worker.
(2) “Sexual contact” means the touching of an intimate part of another person.
(3) “Intimate part” and “touching” have the same meaning as defined in subdivisions (f) and (d), respectively, of Section 243.4 of the Penal Code.
(4) “The course of a prior treatment” means the period of time during which a patient first commences treatment for services that a psychotherapist is authorized to provide under his or her scope of practice, or that the psychotherapist represents to the patient as being within his or her scope of practice, until the psychotherapist-patient relationship is terminated.
Sexual Exploitation-Penalties
729. (a) Any physician and surgeon, psychotherapist, alcohol and drug abuse counselor or any person holding himself or herself out to be a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor, who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client, or with a former patient or client when the relationship was terminated primarily for the purpose of engaging in those acts, unless the physician and surgeon, psychotherapist, or alcohol and drug abuse counselor has referred the patient or client to an independent and objective physician and surgeon, psychotherapist, or alcohol and drug abuse counselor recommended by a third-party physician and surgeon, psychotherapist, or alcohol and drug abuse counselor for treatment, is guilty of sexual exploitation by a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor.
(b) Sexual exploitation by a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor is a public offense:
(1) An act in violation of subdivision (a) shall be punishable by imprisonment in a county jail for a period of not more than six months, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
(2) Multiple acts in violation of subdivision (a) with a single victim, when the offender has no prior conviction for sexual exploitation, shall be punishable by imprisonment in a county jail for a period of not more than six months, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
(3) An act or acts in violation of subdivision (a) with two or more victims shall be punishable by imprisonment in the state prison for a period of 16 months, two years, or three years, and a fine not exceeding ten thousand dollars ($10,000); or the act or acts shall be punishable by imprisonment in a county jail for a period of not more than one year, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
(4) Two or more acts in violation of subdivision (a) with a single victim, when the offender has at least one prior conviction for sexual exploitation, shall be punishable by imprisonment in the state prison for a period of 16 months, two years, or three years, and a fine not exceeding ten thousand dollars ($10,000); or the act or acts shall be punishable by imprisonment in a county jail for a period of not more than one year, or a fine not exceeding one thousand dollars ($1,000) or by both that imprisonment and fine.
(5) An act or acts in violation of subdivision (a) with two or more victims, and the offender has at least one prior conviction for sexual exploitation, shall be punishable by imprisonment in the state prison for a period of 16 months, two years, or three years, and a fine not exceeding ten thousand dollars ($10,000). For purposes of subdivision (a), in no instance shall consent of the patient or client be a defense. However, physicians and surgeons shall not be guilty of sexual exploitation for touching any intimate part of a patient or client unless the touching is outside the scope of medical examination and treatment, or the touching is done for sexual gratification.
(c) For purposes of this section:
(1) “Psychotherapist” has the same meaning as defined in Section 728.
(2) “Alcohol and drug abuse counselor” means an individual who holds himself or herself out to be an alcohol or drug abuse professional or paraprofessional.
(3) “Sexual contact” means sexual intercourse or the touching of an intimate part of a patient for the purpose of sexual arousal, gratification, or abuse.
(4) “Intimate part” and “touching” have the same meanings as defined in Section 243.4 of the Penal Code.
(d) In the investigation and prosecution of a violation of this section, no person shall seek to obtain disclosure of any confidential files of other patients, clients, or former patients or clients of the physician and surgeon, psychotherapist, or alcohol and drug abuse counselor.
(e) This section does not apply to sexual contact between a physician and surgeon and his or her spouse or person in an equivalent domestic relationship when that physician and surgeon provides medical treatment, other than psychotherapeutic treatment, to his or her spouse or person in an equivalent domestic relationship.
(f) If a physician and surgeon, psychotherapist, or alcohol and drug abuse counselor in a professional partnership or similar group has sexual contact with a patient in violation of this section, another physician and surgeon, psychotherapist, or alcohol and drug abuse counselor in the partnership or group shall not be subject to action under this section solely because of the occurrence of that sexual contact.
Causes for Disciplinary Action
2960, (o) Any act of sexual abuse, or sexual relations with a patient or former patient within two years following termination of therapy, or sexual misconduct that is substantially related to the qualifications, functions or duties of a psychologist or psychological assistant or registered psychologist.
Limitation Period
2960.05. (e) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging sexual misconduct shall be filed within three years after the board discovers the act or omission alleged as the ground for disciplinary action, or within 10 years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first. This subdivision shall apply to a complaint alleging sexual misconduct received by the board on and after January 1, 2002.
Decision Containing Finding That Licensee or Registrant Engaged in Sexual Contact With Patient or Former Patient; Order of Revocation
2960.1. Notwithstanding Section 2960, any proposed decision or decision issued under this chapter in accordance with the procedures set forth in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, that contains any finding of fact that the licensee or registrant engaged in any act of sexual contact, as defined in Section 728, when that act is with a patient, or with a former patient within two years following termination of therapy, shall contain an order of revocation. The administrative law judge.
§123145. Preservation of records after licensee ceases operation; Action for abandonment of records
(a) Providers of health services that are licensed pursuant to Sections 1205, 1253, 1575 and 1726 have an obligation, if the licensee ceases operation, to preserve records for a minimum of seven years following discharge of the patient, except that the records of unemancipated minors shall be kept at least one year after the minor has reached the age of 18 years, and in any case, not less than seven years.
(b) The department or any person injured as a result of the licensee’s abandonment of health records may bring an action in a proper court for the amount of damage suffered as a result thereof. In the event that the licensee is a corporation or partnership that is dissolved, the person injured may take action against that corporation’s or partnership’s principle officers of record at the time of dissolution. (c) Abandoned means violating subdivision (a) and leaving patients treated by the licensee without access to medical information to which they are entitled pursuant to Section 123110. (Amended by Stats. 1995, c. 415 (S.B. 1360), § 8.)
§43.93. Psychotherapists; patient’s cause of action for sexual contact; definitions
(a) For the purposes of this section the following definitions are applicable:
(1) “Psychotherapy” means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.
(2) “Psychotherapist” means a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, marriage and family therapist, a registered marriage and family therapist intern or trainee, an educational psychologist, an associate clinical social worker, or a licensed clinical social worker.
(3) “Sexual contact” means the touching of an intimate part of another person. “Intimate part” and “touching” have the same meanings as defined in subdivisions (f) and (d), respectively, of Section 243.4 of the Penal Code. For the purposes of this section, sexual contact includes sexual intercourse, sodomy, and oral copulation.
(4) “Therapeutic relationship” exists during the time the patient or client is rendered professional service by the therapist.
(5) “Therapeutic deception” means a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient’s or former patient’s treatment.
(b) A cause of action against a psychotherapist for sexual contact exists for a patient or former patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred under any of the following conditions:
(1) During the period the patient was receiving psychotherapy from the psychotherapist.
(2) Within two years following termination of therapy.
(3) By means of therapeutic deception.
(c) The patient or former patient may recover damages from a psychotherapist who is found liable for sexual contact. It is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions. No cause of action shall exist between spouses within a marriage.
(d) In an action for sexual contact, evidence of the plaintiff’s sexual history is not subject to discovery and is not admissible as evidence except in either of the following situations:
(1) The plaintiff claims damage to sexual functioning.
(2) The defendant requests a hearing prior to conducting discovery and makes an offer of proof of relevancy of the history, and the court finds that the history is relevant and the probative value of the history outweighs its prejudicial effect. The court shall allow the discovery or introduction as evidence only of specific information or examples of the plaintiff’s conduct that are determined by the court to be relevant. The court’s order shall detail the information or conduct that is subject to discovery.
ARTICLE 2. DENIAL, SUSPENSION, AND REVOCATION §4982. UNPROFESSIONAL CONDUCT
(k) Engaging in sexual relations with a client, or a former client within two years following termination of therapy, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist.
§4982.26. DECISION CONTAINING FINDING THAT liCENSEE OR REGISTRANT ENGAGED IN SEXUAL CONTACT WITH PATIENT OR FORMER PATIENT; ORDER OF REVOCATION
Notwithstanding Section 4982, any proposed decision or decision issued under this chapter in accordance with the procedures set forth in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, that contains any finding of fact that the licensee or registrant engaged in any act of sexual contact, as defined in Section 729, when that act is with a patient, or with a former patient when the relationship was terminated primarily for the purpose of engaging in that act, shall contain an order of revocation. The revocation shall not be stayed by the administrative law judge.
§4986.71. DECISION CONTAINING FINDING THAT liCENSEE OR REGISTRANT ENGAGED IN SEXUAL CONTACT WITH PATIENT OR FORMER PATIENT; ORDER OF REVOCATION
The board shall revoke any license issued under this chapter upon a decision made in accordance forth in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government any finding of fact that the licensee engaged in any act of sexual contact, as defined in Section 729, patient, or with a former patient when the relationship was terminated primarily for the purpose of engaging contain an order of revocation. The revocation shall not be stayed by the administrative law judge.
(Emphasis in bold was added)