Sexual Misconduct in the Therapist-Client Relationship, Part I | Sexual Misconduct Defined

Sexual misconduct is an unfortunate issue among Licensed Clinical Social Workers (LCSW), Licensed Marriage & Family Therapists (LMFT), and Licensed Mental Health Counselors (LMHC). If you are a licensed therapist who has been accused of sexual misconduct, you should take immediate action and seek counsel from an experienced health care attorney.

The Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling (called the Chapter 491 Board or Therapy Board) has often punished sexual misconduct severely, and you should take steps to protect your license. In this article, we’ll review the rules regarding sexual misconduct. In Part II of this blog series on sexual misconduct in the therapist-client relationship, we’ll discuss the disciplinary guidelines for sexual misconduct.

What is Sexual Misconduct?

Chapter 491 Board defines sexual misconduct in its rules. The definition can be found in Florida Administrative Code, 64B4-10.002(1), which states:

64B4-10.002 Definition of Sexual Misconduct.

(1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior, or any behavior, whether verbal or physical, which is intended to be sexually arousing, including kissing; sexual intercourse, either genital or anal; cunnilingus; fellatio; or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed.

This rule obviously applies to a very broad set of behaviors and includes physical and verbal sexual activity. Virtual sexual activity (sexting) would also be included in this definition.

Note that the rule does not discuss whether or not the sexual relationship between the therapist and the client was consensual, or if the client initiated the sexual relationship. The rules explicitly state that consent is not a defense in the context of sexual contact with clients.

The rule goes on to describe additional actions that constitute sexual misconduct, in 64B4-10.002(2), FAC:

(2) It is sexual misconduct for a psychotherapist to encourage the client to engage in sexual conduct with a third party unless:

(a) Such encouragement is consistent with the planned treatment of the client’s specifically diagnosed mental, social, or sexual dysfunctions or disorders; and,

(b) Treatment is provided in accordance with generally accepted professional standards for psychotherapy in this State.

What we learn from this rule is that if there is a sexual component to your client’s treatment, it is important that you properly justify and document that treatment. This will help you later on if you receive a complaint, as you will need to explain to the Board why the treatment was “in accordance with generally accepted professional standards for psychotherapy.”

Sexual Misconduct | Who is Considered a Client?

The answer can be found in 64B4-10.003, FAC. According to the Board “a psychotherapist-client relationship is established between a psychotherapist and a person once a psychotherapist renders, or purports to render, clinical social work, marriage and family therapy or mental health services including, but not limited to, psychotherapy, counseling, assessment or treatment to that person.” Again, we see the Board has created a very broad definition.

NOTE – there does not need to be a formal contract, a scheduled appointment, or payment for services for the Board to find that a therapist-client relationship exists.

How long does the therapist-client relationship last? At a minimum, two years after the “termination of psychotherapy or the date of the last professional contact with the client.” After those two years, the Board looks at multiple factors for determining whether the therapist-client relationship has ended, including:

• Whether the relationship underwent formal termination procedures, like the ending of a formal contract.
• Whether the client’s case was transferred to another therapist.
• How long have the therapist and client had a professional relationship.
• How long it’s been since the client last visited the psychologist for treatment.
• The extent to which the client has confided personal or private information to the therapist.
• The nature of the client’s psychological problem(s).
• The degree of emotional dependence that the client has on the therapist.

Even if you can show that the therapist-client relationship has ended per the Board rules, there is one final rule regarding sexual relationships with former clients:

(3) The psychotherapist shall not engage in or request sexual contact with a former client at any time if engaging with that client would be exploitative, abusive, or detrimental to that client’s welfare or if the sexual contact is a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.

An experienced health care attorney would be able to review the facts of your case and know how to best present it to the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling. Sexual misconduct with a client is a serious allegation that can result in harsh penalties against your license. To learn more about what the possible penalties are for sexual misconduct, read Part II of this blog series.

If you are a licensed therapist (LCSW, LMFT, LMHC) who has received an Administrative Complaint, you should act immediately. Our firm represents physicians, nurses, psychologists, therapists, and other licensed professionals statewide. Our goal is to successfully defend you so that you can keep your professional license.