Psychotherapist Sexual Abuse - Melmed Law Group P.C.

I. Professional Therapy Never Includes Sexual Contact Between a Therapist and a Client

Professional therapy never includes sexual contact between a therapist and a client. [1] Courts across California have recognized that “psychotherapist-patient sexual contact is a matter of serious concern.” [2] In fact, the State of California Department of Consumer Affairs has publicly decreed:

Sexual contact of any kind between a therapist and a client is unethical and illegal in the State of California. Additionally, with regard to former clients, sexual contact within two years after termination of therapy is also illegal and unethical. It is always the responsibility of the therapist to ensure that sexual contact with a client, whether consensual or not, does not occur. [3]

Sexual behavior between a therapist and a client can harm the client. [4] Harm may arise from the therapist’s exploitation of the client to fulfill his or her own needs or desires and from the therapist’s loss of the objectivity necessary for effective therapy. [5] All therapists are trained and educated to know that this kind of behavior is illegal and unethical. [6]

As a result, there are numerous civil claims (also called “causes of action”) that a patient-victim of sexual abuse can bring against a therapist. These claims are:

Sexual Abuse by a Therapist (California Civil Code § 43.93)
Common Law Negligence
Professional Negligence
Negligent Misrepresentation
Negligent Infliction of Emotional Distress
Intentional Infliction of Emotional Distress
Assault and Battery (Sexual Battery Under California Civil Code § 1708.5)

In addition to potential claims against the offending therapist, a patient-victim may have claims against the facility or the company that employs an offending therapist. These claims are:

Vicarious Liability
Negligent Hiring, Supervision, or Retention of Employee
Ratification
Fraudulent Concealment
Negligent Failure to Warn
Premises Liability

The above lists of claims are not exhaustive. Other claims may arise in certain circumstances (for example, if the therapist is an employee of a public school receiving federal funds, or other unique circumstances). The above lists of claims are, however, a general overview of the most common examples of claims that a patient-victim may assert against an offending therapist and their employer. This article explores each of the above claims.

A. Sexual Abuse by a Therapist (California Civil Code § 43.93)

Because of the seriousness of sexual abuse of patient-victims by therapists, the California legislature enacted California Civil Code § 43.93 to specifically address this type of sexual abuse. This civil code section has two main functions.

The first function is to create the ability for a patient-victim (typically referred to as the plaintiff) to file a civil lawsuit against a psychotherapist for unwanted or offensive sexual contact. [7]

The second function is to place certain limitations on the admissibility of evidence of a plaintiff’s sexual history. These limitations are discussed below.

Pursuant to California Civil Code § 43.93, a patient or a former patient may bring a civil cause of action against a psychotherapist for any injuries (physical or emotional) caused by sexual contact with the psychotherapist if the sexual contact occurred under any of the following three conditions:

during the period the patient was receiving psychotherapy from the psychotherapist; [8]
within two years following the termination of therapy; [9] or
by means of therapeutic deception. [10]

This article provides the legal definitions of a few key terms, including the definitions of “psychotherapist” and “sexual contact.”

1. California Civil Code § 43.93’s Definition of “Psychotherapist”

The statute defines a “psychotherapist” as any of the following:

a physician and surgeon specializing in the practice of psychiatry
a psychologist
a psychological assistant
a marriage and family therapist
a registered marriage and family therapist intern or trainee
an educational psychologist
an associate clinical social worker
a licensed clinical social worker
a professional clinical counselor
a registered clinical counselor intern or trainee [11]

2. California Civil Code § 43.93’s Definition of “Sexual Contact”

For purposes of this civil code, the term sexual contact “means the touching of an intimate part of another person.” [12] The statute refers to the penal code to define intimate part and touching as follows. [13] An intimate part “means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.” [14] A touching is “physical contact with the skin of another person whether accomplished directly or through the clothing.” [15] For further clarification, the civil code also specifies that “[s]exual contact includes sexual intercourse, sodomy, and oral copulation.” [16]

3. What Is Therapeutic Deception?

As described above, a patient or a former patient may bring a civil cause of action against a psychotherapist for any injuries (physical or emotional) caused by sexual contact with the psychotherapist if the sexual contact occurred under any of the following three conditions: during the period the patient was receiving psychotherapy from the psychotherapist, [17] or within two years following the termination of therapy, [18] or by means of therapeutic deception. [19]

The statute defines therapeutic deception as “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.” [20] For example, a therapist’s representation that cuddle therapy, described as “his kissing, cuddling, and cupping her breasts [that] were a necessary component of her therapy, part of some special adoptive therapy technique that would help re-wire her brain[,] help her form better attachments and cure her depression[]” may give rise to a cause of action for therapeutic deception. [21]

4. What If the Sexual Contact Occurred Outside of a Therapy Treatment Session?

A psychotherapist may try to defend himself or herself by claiming that the sexual contact occurred outside of a therapy or treatment session. Also, a psychotherapist may try to defend himself or herself by claiming that the sexual contact occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions. However, California law is clear that this defense will fail. Specifically, the statute states that “[i]t 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.” [22]

5. Can a Psychotherapist Bring Up a Patient’s Sexual History to Defend Against a Sexual Abuse Lawsuit?

Generally, California’s evidence laws protect plaintiffs alleging sexual misconduct by not allowing the defense to present evidence of the plaintiff’s sexual history. This can help prevent the defendant from victim blaming, attacking the victim’s moral character, and distracting the jury from the issues at hand. One of California’s evidence laws bans this evidence in civil actions alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery with limited exceptions. [23] But when it comes to a civil case against a psychotherapist for sexual contact, the applicable civil law is somewhat more lenient about allowing this kind of evidence. This is because a plaintiff in a therapy sexual assault cause of action “will likely have had some emotional disorder that predated the [alleged] sexual contact and led to psychotherapy in the first place.” [24]

However, the California civil law is clear that “[i]n 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) [t]he plaintiff claims damage to sexual functioning, or (2) [t]he defendant requests a hearing prior to conducting discovery and makes an offer of proof of the relevancy of the history, and the court finds that the history is relevant and the probative value of the history outweighs its prejudicial effect.” [25]

In other words, “the trial court has discretion to admit evidence of plaintiff's sexual history for the purpose of determining proximate cause, but only to the limited extent the history is relevant and its probative value outweighs its prejudicial effect.” [26] “[I]n actions for psychotherapist-patient sexual contact a countervailing consideration—the special likelihood of preexisting emotional disorder and the potential relevance of sexual history—militates against an absolute bar and in favor of discretionary admissibility as prescribed by Civil Code section 43.93 where sexual history is relevant and its probative value outweighs its prejudicial effect.” [27]

The courts “certainly do not mean to erode [the] statutory protection against unwarranted intrusion into [a] victims’ personal affairs. A patient subjected to sexual contact should not be discouraged from bringing such an action out of fear sexual history will become the issue to be tried. In adopting section 43.93, the Legislature recognized the potential for abuse and responded by limiting the admission of evidence of sexual history to situations of established relevancy. Such evidence should be admitted only when probative value outweighs prejudice, and only to the extent necessary to afford the defendant a fair trial.” [28]

The defense may present evidence about a plaintiff’s sexual history only if it is highly relevant to proving something important in the case, such as that the plaintiff was “psychotic and delusional and had not been injured by the alleged sexual contact.” [29] Ultimately, the court must determine that the value of the evidence is greater than the risk of biasing the jury against the plaintiff.

6. Can a Spouse Bring a Claim Against a Spouse?

A spouse may not bring a claim under California Civil Code § 43.93 against their spouse. The statute is clear that “[n]o cause of action [under Civil Code section 43.93] shall exist between spouses within a marriage.” [30]

B. Common Law Negligence

Even though sexual abuse by a therapist is an intentional act, many courts recognize that a patient-victim may bring a claim for negligence against an offending therapist. [31]

Moreover, the California Supreme Court has recognized that:

[a] number of out-of-state decisions have explained that even when a psychiatrist intentionally abuses the therapist-patient relationship for his own personal sexual desires, there is no reason why the injured patient may not maintain both an action for an intentional tort and an action for professional malpractice or negligence. In such a case, the psychiatrist has breached both the duty imposed on everyone to refrain from intentionally injuring another and the special duty that a psychiatrist owes to his patient to use due care for the patient’s health in the conduct of the therapist-patient relationship…Thus, even if we could legitimately assume that the earlier complaint's allegations of intentional misconduct on the part of the psychiatrist were true…we still could not rule out…a theory of professional negligence. [32]

The California Supreme Court has held that for a patient-victim to bring a civil claim for negligence, “[t]he traditional elements of duty, breach of duty, causation, and damages apply.” [33] For example, the California Supreme Court found that by treating a patient by providing psychotherapy, a therapist clearly knew (or should have known) that his sexual molestation of the patient would directly injure and cause severe emotional distress to the patient. The Court found that the therapist’s abuse of the therapeutic relationship and molestation of the patient breached his duty of care. [34]

C. Professional Negligence

Professional negligence is a “negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” [35] The term health care provider includes marriage and family therapists, social workers, and professional clinical counselors licensed under the Business and Professions Code. [36]

“[T]wo requirements for such an independent duty of care: (1) a genuine professional relationship must exist between the plaintiff and the defendant, and (2) the wrongful conduct must have a meaningful connection to the purpose of that professional relationship.” [37] In other words, there must be a professional relationship giving rise to a duty and a connection between the allegedly negligent conduct and professional services rendered.

In some cases, this cause of action may extend to the spouse of a patient-victim. For example, in one case, “the court concluded the plaintiff could state causes of action for fraud, professional negligence, and negligent infliction of emotional distress against the psychiatrist who had a sexual relationship with the plaintiff's wife because the misconduct took place while the psychiatrist was treating the couple for marital problems.” [38] Yet in another case, the court “concluded a therapist who engaged in sexual conduct with a patient did not owe a duty of care to her husband because the husband was not a patient and the therapy was not intended to improve the marriage.” [39] In this case, the spouse attended two therapy sessions and spoke with the therapist on the phone “a number times” but did not remember filling out a patient questionnaire for the therapist and there was no written contract with the therapist establishing a patient-therapist relationship. [40] Therefore, in certain limited circumstances, a spouse may have a claim against a therapist that sexually abuses or assaults the other spouse.

D. Fraud and Negligent Misrepresentation

The “elements necessary to plead a cause of action for fraud…are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity...; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” [41] Considering these elements, a California appeals court found a therapist’s cuddle therapy representation, discussed above, “falls squarely within the elements necessary to plead a cause of action for fraud.” [42]

In addition, that patient-victim also demonstrated a cause of action for negligent misrepresentation. “The elements of fraud and negligent misrepresentation are very similar with the exception that negligent misrepresentation requires a positive assertion as opposed to an omission and does not require knowledge of falsity.” [43] For example, a therapist that implements so-called “cuddle therapy” with a patient and tells her it’s a treatment to resolve her issues arising from her adoption could be liable for negligent misrepresentation even if the therapist personally actually believed it was a legitimate therapy. [44]

E. Negligent Infliction of Emotional Distress

The doctrine of ‘negligent infliction of emotional distress’ is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. [45] For example, a husband whose wife is incorrectly diagnosed with a sexually transmitted disease who must also be tested and tests negative may have a cause of action against the healthcare provider for negligent infliction of emotional distress. [46] This is because the risk of harm to a spouse for an incorrect diagnosis of a sexually transmitted disease was reasonably foreseeable to the defendant and “under these circumstances defendants owed plaintiff a duty to exercise due care in diagnosing the physical condition of his wife.” [47] This point is further illustrated by another case in which a court found a cause for negligent infliction of emotional distress stated when mothers and sons were seeing a therapist for intra-family difficulties and the therapist sexually molested the sons. “[T]he therapist, as a professional psychologist, clearly knew or should have known in each case that his sexual molestation of the child would directly injure and cause severe emotional distress to his other patient, the mother, as well as to the parent-child relationship that was also under his care.” [48]

By contrast, a spouse—who had no established relationship with the therapist and did not witness the sexual relations between the therapist and his spouse—would likely not have cause of action against the therapist for negligent infliction of emotional distress. [49] “Where there is a claim for the negligent infliction of emotional distress, the plaintiff must be either a direct victim of the wrongful conduct or, with certain qualifications, a bystander, that is, a percipient witness to the injury of another.” [50]

F. Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress requires: “(i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress.” [51] Outrageous conduct is behavior so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” [52]

However, “[t]here is no bright line standard for judging outrageous conduct.” [53]

For example, in a case involving a doctor and a minor (not in a therapeutic setting), an appellate court found that a plaintiff’s cause of action for intentional infliction of emotional distress was triable because “reasonable minds could certainly differ whether it is beyond the bounds of conduct to be tolerated in civilized society for a 48-year-old medical doctor to initiate and conduct an extended sexual relationship with a minor while encouraging her to break the law by providing her with alcohol and controlled substances and paying her to purchase such substances for him.” [54]

This court provides further instruction on intentional infliction of emotional distress, stating that while a special relationship between plaintiff and defendant or a special susceptibility on the plaintiff’s part to emotional distress and defendant's knowledge of such susceptibility may be “factors that may be considered in determining whether conduct is ‘outrageous,’ they are not required elements of the tort.” [55] In other words, the nature of the therapeutic relationship between a patient-victim and therapist may help the patient-victim prove defendant’s outrageous conduct.

G. Assault and Battery

Assault and battery are two civil causes of action potentially available to a patient-victim of therapist sexual misconduct. The main difference between the two is that battery requires an unconsented touching whereas assault requires the defendant’s intent or threat to touch the plaintiff without consent—no actual contact is required in the elements of an assault case. Note that the touching need not be sexual contact.

An action for battery requires the patient-victim (plaintiff) to prove: “(1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” [56]

An action for assault requires the patient-victim (plaintiff) to show: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she [or he] was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” [57]

H. Sexual Battery (California Civil Code § 1708.5)

A cause of action under California Civil Code § 1708.5 requires that the defendant intend to cause a “harmful or offensive” contact and the plaintiff suffer a “sexually offensive contact.” Further, the law has been interpreted to require that the plaintiff did not consent to the contact. [58]

However, while consent to a touching might bar a plaintiff’s recovery in an action for sexual battery “it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.” [59]

Under California law, any of the following acts may give rise to a sexual battery cause of action, with (4) and (5) showing how the actor may exceed any terms or conditions of consent:

1. Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.
2. Acts with the intent to cause a harmful or offensive contact with another by use of the person's intimate part, and a sexually offensive contact with that person directly or indirectly results.
3. Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.
4. Causes contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.
5. Causes contact between an intimate part of the person and a sexual organ of another from which the person removed a condom without verbal consent. [60]

II. What Is Transference and How Does It Affect a Civil Lawsuit?

As a result of transference, a patient-victim of sexual assault or sexual abuse by a therapist may be “especially vulnerable to the added stress created by the feelings of shame, guilt, and anxiety produced by the…relationship, and by the sense of betrayal that is felt when the client eventually learns that she is not ‘special’ as she had been led to believe, and that her trust has been violated.” [61]

As the Ninth Circuit has explained:“[t]ransference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is generally applied to the projection of feelings, thoughts and wishes onto the [therapist], who has come to represent some person from the patient's past.” [62] “Transference is perhaps regarded as the most significant concept in psychoanalytical therapy, and one of the most important discoveries of Freud.” [63] In other words:

[w]hat the notion of transference assumes is that as therapy develops, and if therapy is working, the client comes to either consciously or unconsciously, or both, regard the therapist as a child might regard the parent. This is important because in order for a therapist to have positive powerful impact in helping the client to change and heal, the therapist has to have the same kind of authority power in a positive way with the client that the parents once had, or the parental figures once had in a negative way with the client while the client was growing up. And, so what happens when therapy is working ... is that this transference relationship grows so that the client comes to experience the therapist as a powerful, benevolent parent figure. And, what that means is that you've got a symbolic, sometimes conscious sometimes not, parent-child relationship existing in the therapy setting, even though you have two adults there. [64]

This concept is crucial to a civil lawsuit for the following simple reason: “When the therapist mishandles transference and becomes sexually involved with a patient, medical authorities are nearly unanimous in considering such conduct to be malpractice.” [65] “The experts...agree...that there are absolutely no circumstances which permit a psychiatrist to engage in sex with his patient. All such instances constitute misuse of the transference.” [66]

Ultimately, “the reason sexual involvement with a patient is so harmful is due to the ‘parent-child’ relationship symbolized by the transference…‘were a therapist to be sexual with a client it would be replicating at a symbolic level the situation in which a parent would be sexual with a child. The kinds of harm that can flow from those sorts of violations of trust are very similar.’” [67]

While “courts do not routinely impose liability upon physicians in general for sexual contact with patients,” [68] they do uniformly regard mishandling of transference as malpractice or gross negligence. [69]

III. If a Patient-Victim Files a Civil Claim Against a Psychotherapist, Will the Psychotherapist Be Sent to Jail?

If a patient brings a civil claim against their therapist, a successful outcome will be civil liability in the form of financial damages. A civil court does not have the authority to send the therapist to jail. However, the patient-victim can press criminal charges if the therapist has also violated a criminal statute. A patient-victim can seek advice from their local district attorney or police if they are interested in pressing criminal charges. These two courses of action are not mutually exclusive—a patient-victim who files a civil lawsuit may also initiate a criminal proceeding against the therapist.

IV. If a Patient-Victim Files a Civil Claim Against a Psychotherapist, Will the Psychotherapist Lose Their Professional License?

A patient-victim’s civil claim against a therapist may jeopardize the therapist’s professional license. A plaintiff who files a civil lawsuit may also choose to initiate an administrative proceeding against the therapist. This entails reaching out to the appropriate licensing board to initiate a complaint against a therapist. The four California boards that license and regulate therapists are the Board of Behavioral Scientists (marriage and family therapists and associates, clinical social workers and associates, educational psychologists, and professional clinical counselors and associates); the Board of Psychology (psychologists and psychological associations); the Medical Board of California (physicians and surgeons, which include psychiatrists; licensed midwives, polysomnographic trainees, technicians, and technologists; research psychoanalysts); and the Osteopathic Medical Board of California (osteopathic physicians and surgeons). [70]

V. Can a Patient-Victim File a Lawsuit Against a Facility That Employs an Offending Therapist?

In some cases, a therapist’s employer, the facility where the therapist works, or even both may be liable for the acts of the therapist. Here is a look at some of the theories of liability that may permit a patient-victim to file a lawsuit against the employer or the facility that employs an offending therapist.

A. Vicarious Liability

Can an employer be responsible for an employee-therapist’s sexual misconduct against a patient-victim? The legal doctrine of respondeat superior holds employers responsible for their employees’ acts when those acts happen within the scope of employment. [71] In one case involving a counselor’s sexual assault against a resident in a residential treatment center, a California appeals court held that an employer was not vicariously liable for its employee’s actions because sexual misconduct was outside the scope of employment. [72] However, in another case, a federal appellate court found the employer liable for an employee’s sexual conduct with a patient who he was providing mental health counseling to, finding that the abuse of transference occurred within the scope of the counselor’s employment. “[W]e believe the centrality of transference to therapy renders it impossible to separate an abuse of transference from the treatment itself.” [73]

B. Negligent Hiring, Supervision, or Retention of Employee

Similarly, in the case of therapist sexual assault, a victim-patient may have a cause of action against the therapist’s employer for negligently hiring, supervising, or retaining the therapist. “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” [74] The employer’s liability is “based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” [75] The “should have known” language creates a requirement for employers to have a proactive awareness of their employees’ fitness or competence for employment.

“[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him.” [76] For example, if a church hiring committee knows a candidate had “some difficulty with [] reappointment to the active ministry and understood he had been on a sabbatical of some kind” but hires him as a youth director without conducting a background investigation and the youth director sexually abuses a youth, the youth may have a viable cause of action against the employer for negligent hiring. [77]

C. Ratification

Ratification is a principle of agency law. [78] Like respondeat superior, it is a cause of action against an employer for their employee's misconduct. “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” [79] An employer’s ratification of a therapist’s sexual misconduct can look like implicit approval—potentially adding to a patient-victim’s confusion about an already confusing situation.

D. Fraudulent Concealment

Fraudulent concealment can be both a cause of action available to a patient-victim and a potential way for a plaintiff to prevent a defendant from asserting a time-limit defense to a cause of action.

As a cause of action against a therapist’s employer for fraud and deceit based on concealment, a patient-victim must prove: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” [81] Further, the “[f]raud must be pleaded with specificity rather than with ‘general and conclusory’ allegations.” [82]

Fraudulent concealment is also a tool that a patient-victim may be able to use to prevent a statute of limitations defense from barring a cause of action against a therapist filed outside of the time limit. “[D]efendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it.” [82] For example, a California appellate court declined to extend the statute of limitations for a negligent retention cause of action against an employer-church based on fraudulent concealment because the priest’s sexual abuse was “discovered” by the plaintiff at the time it occurred. In other words, the priest’s “sexual misconduct put plaintiff on inquiry notice regarding the potential liability of the church for acts of its negligence or intentional misconduct....” [83]

E. Premises Liability

Generally speaking, premises liability is a cause of action that holds a property owner liable for “injuries on land they own, possess, or control…[but] [a] defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” [84] Like general negligence, the patient-victim, must prove: (1) a duty on the part of the defendant to use due care; (2) a breach of this legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. [85]

VI. What Types of Evidence Does a Patient-Victim Need to Prepare Prior to Filing a Civil Lawsuit for Sexual Abuse by a Therapist?

To properly prepare for a civil lawsuit against a therapist for sexual abuse, a patient-victim must be prepared with all available potential evidence and information. At a bare minimum, this should include all the following:

Information about other patient-victims, if any;
Information about the therapist, including their name, contact information, physical address, any background information available about the therapist (including their social media, if available);
Information about the therapy itself;
Information about the nature of the sexual relationship;
Copies of all text messages, emails, phone records, and all other communications;
All relevant documents. These documents may include all agreements the patient-victim signed when first signing up with the therapist and all journal entries and calendar entries concerning the treatment or the therapist. [86]

The patient-victim can also provide information about other witnesses who may support his or her version of critical events, such as the therapist’s former colleagues, employees, and/or former patients or clients. In some instances, the patient’s family, friends, and coworkers may also provide testimony supporting the patient-victim. [87]

According to 28 Causes of Action for Sexual Contact During Therapy or Counseling 2d 343 (originally published in 2005), a patient-victim should be prepared with the following information:

The date on which any sexual improprieties began, such as sexual comments, gestures, touchings, and/or advances between the patient victim and the therapist;
Whether it was the therapist or the patient victim made the initial suggestion regarding sexual contact;
If the patient victim initiated sexual contact with the therapist, whether the therapist discussed concepts of transference and counter-transference with the patient victim, or otherwise endeavored to convey to the patient victim in another way that sexual contact was inappropriate;
If the therapist initiated sexual contact, a detailed description of the therapist’s specific words and conduct;
Whether the patient victim made any objection to the therapist’s conduct at its outset;
Whether the patient victim agreed to become sexually involved with the therapist, and the nature and terms of that agreement;
Whether the professional treating relationship between the therapist and the patient victim continued after sexual contact began;
Whether the therapist suggested that sexual contact was necessary for the patient victim’s progress in treatment and whether the patient believed any such representation;
Whether the therapist advised the patient victim not to tell others of their sexual involvement;
Whether the patient victim reported the therapist’s conduct to anyone else (such as a friend, a family member, an administrative body, a lawyer, or a police officer);
The frequency of sexual contact between the therapist and the patient victim;
Whether sexual contact occurred in the therapist’s office, at other locations, or both;
What prompted the patient victim’s recognition that sexual contact with the therapist was inappropriate;
Circumstances under which the sexual relationship between the therapist and the patient victim ended;
Reasons for the patient victim’s delay, if any, in reporting the therapist’s conduct and/or investigating their legal rights. [88]

VII. What Types of Emotional Distress Might a Patient or Client Who Is a Victim of Sexual Abuse by a Therapist Experience?

Therapists are trusted and respected by their clients, and it is not uncommon for clients to admire and feel attracted to them. [89] However, a therapist who accepts or encourages the expression of these feelings through sexual behavior with the client—or tells a client that sexual involvement is part of therapy—violates the therapeutic relationship and engages in conduct that may be illegal and unethical. [90] This kind of abusive behavior can cause harmful, long-lasting, emotional, and psychological effects to the client. [91] A patient-victim of sexual misconduct by a therapist may experience some or all these feelings or reactions:

Intimidated or threatened.
Guilt and responsibility—even though it is the therapist’s responsibility to keep sexual behavior out of therapy.
Mixed feelings about the therapist—e.g., protectiveness, anger, love, betrayal.
Isolation and emptiness.
Distrust of others’ feelings or intentions, or your own feelings.
Fearful that no one will believe you.
Feeling victimized or violated.
Experiencing traumatic symptoms, e.g., anxiety, nightmares, obsessive thoughts, depression, or suicidal or homicidal thoughts. [92]

These feelings and reactions can give rise to emotional distress.

VIII. What Are Some Early Warning Signs That a Therapist Is Engaging in Inappropriate Behavior?

The State of California has explained that in most sexual misconduct cases, other inappropriate behavior may come first. [93] While it may be subtle or confusing, it usually feels uncomfortable to the patient-victim. [94] The State of California provides the following examples of clues or warning signs:

Telling sexual jokes or stories.
Sending obscene images or messages to the patient.
Unwanted physical contact.
Excessive out-of-session communication (e.g., text, phone, email, social media, etc.) not related to therapy.
Inviting a patient to lunch, dinner, or other social and professional activities.
Dating.
Changing the office’s business practices (e.g., scheduling late appointments when no one is around, having sessions away from the office, etc.).
Confiding in a patient (e.g., about the therapist’s love life, work problems, loneliness, marital problems, etc.).
Telling a patient that he or she is special, or that the therapist loves him or her.
Relying on a patient for personal and emotional support.
Giving or receiving significant gifts.
Suggesting or supporting the patient’s isolation from social support systems, increasing
dependency on the therapist.
Providing or using alcohol or drugs during sessions. [95]

IX. Conclusion

Professional therapy never includes sexual contact between a therapist and a client. In California, a patient-victim may allege several different civil claims against an offending therapist—and potentially the employer or facility—to recover financial damages. A patient-victim who is able to prove one or more causes of action against a therapist and employer and overcome any defenses raised may be entitled to financial damages.