“Most counsellors like to be dominant, that’s why they’re counsellors. It turns them on.”     n      Interviewee, practicing male psychologist (7th June 2000)

 

 

 

 

 

 

 

 

 

 

Sex Relations in Patients/Psychotherapist Relations: Consensual consent?[1]

 

Peter Pullicino[2]

 

Psychotherapists are utterly unlike healers who care for the body, instead they care for their patients’ perceptions of the world, and in many cases they hold the key to their patients’ sexuality. Often the disclosures of patients made in the private offices of therapists are those which would never have been uttered to a friend of lover. They are given in the hope that they will be interpreted objectively and help the patient move towards a more fulfilled life.  It is particularly worrying when a psychotherapist takes advantage of his superior position in order to gratify his sexual desires, to the detriment of his patient. This occurs mainly between male therapists and female clients[3]. Although, arguably, not all sexual contact is harmful to the patient, it has long been seen as unethical to have sexual relations with patients because of the danger of harm. The Hippocratic Oath includes the lines,

 

“…into whatever houses I enter I will go into them for the benefit of the sick and will abstain from every voluntary net of mischief and corruption; and further from the seduction of females or males, bond or free.”[4]

 

These sentiments are echoed by ethical codes around the world,

 

A.7. Sexual Intimacies With Clients

1.       Current Clients. Counselors do not have any type of sexual intimacies with clients and do not counsel  persons with whom they have had a sexual relationship.

 

2.       Former Clients. Counselors do not engage in sexual intimacies with former clients within a minimum of 2 years after terminating the counseling relationship. Counselors who engage in such relationship after 2 years following termination have the responsibility to examine and document thoroughly that such relations did not have an exploitative nature, based on factors such as duration of counseling, amount of time since counseling, termination circumstances, client’s personal history and mental status, adverse impact on the client, and actions by the counselor suggesting a plan to initiate a sexual relationship with the client after termination. [5]

 

The Australian version is published by the Australian Psychological Society (APS) and is more verbose and much more thorough, although the general gist of the above quote is replicated.

 

The occurrence of this particular brand of unethical behaviour is uncertain. Definitions of sexual relations vary (verbal, fondling, intercourse etc…) and may be interpreted differently by respondents. Many respondent psychiatrists and assorted therapists show they do not even like to discuss this issue:

 

“A survey of 1000 psychologists came back with 666 unusable questionnaires (1977)…. Similar results were obtained from another questionnaire designed by a task force of the California State Psychological Association sent to 4,385 licensed psychologists in California; except this time only a 16% response rate was obtained (1981). ”[6]

 

The truthfulness of the respondents who do reply must therefore be doubted too. Keeping in mind all these warning about data, the phenomenon has been shown to be somewhere between 5% and 15% for male therapists and 0.5% to 5% for female therapists[7]. For feminists the statistics lead to an inference of a “gendered” issue. The figures point out that there is a significant problem with older male therapists having sex with young female patients. It “almost always” is the case[8]. This conclusion is inescapable although the actual percentages are not totally accurate. The Australian Psychological Society has recognised this and has a separate set of guidelines specifically for women clients, “Guidelines for Psychotherapeutic Practice with Female Clients”[9] in addition to its “Guidelines on the Proscription of Sexual Relationships with Clients”[10] and “Ethical Guidelines Relating to Procedures/Assessments That Involve Psychologists-Client Physical Contact”[11].

 

In Australia a breach of APS ethical guidelines can result in an order that the member cease his conduct, that a 3^rd party be present during his sessions, or that the member undertakes more training or evaluation. The member may also be suspended, or expelled[12].

 

The legal support for abused patients is, in contrast to the well-crafted guidelines from the APS, unruly and irrational. When a psychotherapist wants to undertake a ‘sexual therapy’[13] the legal fear revolves around the concept of a lack of “informed consent”[14]. This is a civil law concept; it does not exist in the criminal law. In Rogers v. Whitaker[15], a leading civil decision, The High Court said “a patient's choice to undergo medical treatment is meaningless unless it is made on the basis of relevant information and advice”. In the same way, if a client cannot comprehend the context of the sexual act the consent will be invalid. The ethical prohibitions are much clearer and easier to use in order to de-register the offender, however the civil courts have the power to award damages, and this is useful for victims. To use the tort action requires the prosecution to prove duty of care, lack of informed consent, causation, damage to the person’s health. This is an effective way that victims can validate their experiences and get a monetary pay-out in recognition of what they have suffered. Consider the recent case of B v. Marinovich[16] , in the Northern Territory Supreme Court, where amongst other things a psychiatrist provided personal massage services and sexual intercourse with his client.  Riley J said,

 

“….permitting, indeed encouraging her [the first plaintiff’s] dependence upon him and allowing the relationship to become sexualised leading to sexual intercourse occurring between a psychiatrist and a patient. He did this by adopting pharmacological treatment referred to and by fostering an inappropriate close personal relationship with his patient. Examples of that relationship can be seen in the many visits to her hospital which I find went beyond what was necessary or appropriate. It has also been seen in the social contact outside of the doctor/patient relationship, the passing of compliments of an inappropriate kind, the making of negative remarks relating to her husband, the encouraging of the relationship with X, the fact of an the nature of the massages and, ultimately, the request for and participation in the act of sexual intercourse. The sexualisation of the therapy had the effect of negativing any benefit that the first plaintiff may have derived from her treatment with the defendant… He knew that the first plaintiff had suffered childhood sexual abuse and that, along with her psychological condition at the time of seeking his professional assistance, made her vulnerable to the sexual advances he subsequently made. She was at the time in a very confused state.”

 

The seriousness of the breach of duty was so severe that Riley J awarded punitive damages with relation to the negligence claim of $30,000.

 

Criminal law is less fruitful for the prosecution. The area is littered with arcane technical terms that have special meanings according to precedent. Legal “consent” stems from the law of trespass with a simplistic common law definition of “consent” as consent to actual bodily touching. The Victorian criminal legislation has overturned this common law definition (presented in Mobilio[17]) which said that sex through fraud was not rape if the woman consented to the character of the actual physical act. In the ACT Crimes Act, a comparable act to the Victorian statute, three sections might be relevant:

 

“ s.92P...

  (g)  by a fraudulent misrepresentation of any fact made by the other

        person, or by a third person to the knowledge of the other person;

 

   (h)  by the abuse by the other person of his or her position of authority

        over, or professional or other trust in relation to, the person;

 

   (i)  by the person's physical helplessness or mental incapacity to

        understand the nature of the act in relation to which the consent is

        given;”[18]

 

Legislation is based on the developing case law, broadening a very narrow definition of non-consentual rape, and making it broader, but still quite technical. Lack of consent is still seen as a more specific agreement that goes along with each specific sex act,

 

“In every rape trial the prosecution must prove, as an ingredient of the offence, that intercourse occurred without the victim's consent. Consequently, the victim's state of mind before and during intercourse with the accused will always be relevant…”[19]

 

From the language used in the Act as well as academic commentary[20], it is obvious that the Crimes Act is ineffectual when it comes to abused clients, as they often realise the rape much later on[21]. This is analogous to the fact that rape legislation/limitation legislation is inadequate to properly cover child sex abuses and highlights the need to address the problem in a more holistic way. “Consensual consent”, the concept this essays wishes to dwell upon, goes beyond the current technical views of consent. It implies a wide-ranging consent to the ramifications of the relationship, not merely the physical acts. The failure of the law to recognise the practical problems of victims in mounting a case, even after recent reforms, is a matter of concern[22].

 

The issue of sexual relations and the framework under which abuse is prevented has been established by the above paragraphs. At his point it is worthwhile to note that therapists having sex-oriented contact with patients need not always be unethical or illegal. For instance consider the case of Maxine, a friend of mine:[23]

 

Maxine grew up in a very religious household in the rural countryside where sex was classed as obscene. Her father used to watch her have her baths and no door in the house was allowed to be closed. Her mother told her that men were evil and never referred to sexuality in anything than desultory terms. Maxine was told by her family GP when she was 15 that her sexual organs were malformed and that she would never have any kind of pleasurable intercourse. This was untrue. Maxine left her country town and her family when she was 22 and moved to the city where she had her first boyfriend. She was scared and confused about sex, and her capacity to function. Before disclosing her fears to her boyfriend she went to a doctor who reassured her that everything was perfectly formed. From then on she had a more or less normal sex life, although she described her ordeal in very unpleasant terms, and was still “getting over it”.

 

Consider Maxine’s trip to the second doctor. If he had handled her organs in a abrupt fashion which many doctors do to appear “uninterested” he might have further alienated her rather than reassured her In a similar way too, we can see how a psychiatrist would want to assure Maxine in the way her mother should have so many years ago: “go on – it is yours to explore, to use, love with, just like your lips or hands: a decent, beautiful organ of pleasure”[24] . In these situations it is clear that making strict rules about consent in the therapist/patient interaction may not have allowed Maxine to receive a beneficial therapy. Ongoing sex-oriented therapy may involve touching of the clitoris in order to determine the state of a patient’s reactivity, or their progress in therapy. There is potential for much emotional healing to occur through positive sexual experiences although the practice must be strictly monitored to prevent abuse[25].

 

In most situations, however, therapists do not want to feel guilty when they hug a crying patient, or put a hand on the person’s lap as a gesture of comfort and solidarity. Often patients have stories that move therapists to emotion too. It is worthwhile to have a sympathetic ear rather than a robotic one. There is a need to keep a certain flexibility for the use of touching in the non-sexual context, but there is also a pull the other way to expose improper touching and prevent it. In the light of the public spotlight the general therapeutic community sees touching as a risky business. From 1976 to 1988 the American Psychological Association trust fund spend 53.2% of its money on sex related complaints[26]. Some professionals express a fear a histrionic account of the touching may be given after innocent touching – that all it takes is one  “crazy” woman[27].For instance, this is a  bona fide account given by a woman patient,

 

 "For example, an expressed wish for a birthday kiss, with no expectation of such action from him, was with met with a statement 'You know I can't do that' followed by a sudden passionate kiss. To say I was confused was an understatement."[28]

 

Although no aspersion is cast on the above account I have rephrased it from the therapist’s viewpoint,

 

“She expressed a wish for a birthday kiss. I knew it was out of bounds, and that I shouldn’t because of our professional relationship. That said, she was not an unattractive woman, despite her age, and on the spur of the moment I gave her a kiss, on the side of her mouth. I would not have called it passionate, and I was worried about damage to her self-esteem, and further awkwardness, if I had refused.”

 

Some psychotherapists have defended their sexual relationships as therapy[29], but obviously they do not extend such favours to their ugly, old, fat, moth-eaten clients. Therapists may start touching their clients in order to help them overcome frigidity, but the situation could easily progress to sex with a pretence therapy. That kind of behaviour is obviously unethical because the patient’s wellbeing is conflict with the therapist’s sexual appetite. The patient is never the winner in such a relationship, unless it is purely by accident. Therapy has by that stage has “gone out the window”.

 

The burning question is whether it is possible for patient’s to be give full consent for sex in the same way a woman can in a normal adult-adult relationship. At a fundamental level we must respect a person’s autonomy to engage in sexual acts. To say that they cannot give consent is to take away a crucial freedom, the freedom to flirt, to love, and to have consensual sex with anyone they choose. One side of the coin there is patient autonomy; on the other psychotherapist autonomy; on the third there are community fears that a patient's autonomy may be illusory.  Patients are adults, as are therapists. The problem arises in cases where the situation resembles a child-parent relationship. It is held that a child cannot consent to sex with an adult because he/she does not have the capacity to fully understand to what he/she is consenting. It is easy to draw parallels in this area of abuse. The therapist has huge power in information and status, is often on personal terms with the patient, and it is no wonder that the therapist becomes an object of sexual attraction. The patient may be pushing for sex not realising the consequences of the sexual act, or the context in which it is about occur. Consider the following testimonial from survivor of childhood abuse who was re-abused by her therapist,

 

“Getting to the sexual abuse was a slow process. He didn’t lunge immediately. It was therefore much more insidious that a straight rape, and less discernible. I was blocked to his sexuality. Curious about his erections but blocked to the fact they indicated his desire for sexual contact… I regressed to the level that I was at as a child, when I was, of course, powerless and helpless, surviving and forgetting.” [30]

 

Victims suffer ambivalence, guilt, emptiness and isolation, sexual confusion, impaired ability to trust, confused roles and boundaries, emotional liability, suppressed rage, increased suicidal risk, flashbacks, intrusive thoughts, lack of concentration, unbidden images and nightmares[31]. As the quote above pointed out these attacks on child abuse survivors often replicate the sensations of child abuse itself[32]. In many ways psychologists are “world-makers” parents who define the patient’s value system. If this analogy is correct then patients cannot give informed consent. Moreover it is impossible to withdraw from such a cage because it is created in the patient’s mind, much like the theory behind Battered Women’s Syndrome. It is particularly interesting to note the words the abused uses  - “I was blocked to his sexuality”. It shows that the victim was not operating in an adult-adult relationship. These accounts are particularly heartrending seeing that therapists can potentially offer so much help to child abuse survivors. The offender destroys trust in survivors who are just beginning to trust again, making any real future treatment almost impossible.  It is a case of “crushing the crushed”.

 

To balance the argument it is worthwhile to point out that therapists are human - they have sexual drives; they experience attraction to physical beauty; are moved sympathy;  need love and affection too. As Shylock cries in The Merchant of Venice “If you prick us, do we not bleed? if you tickle us, do we not laugh? if you poison us, do we not die?”[33]. Indeed the therapist is encouraged by luminaries like Jung to become active, 

 

“The doctor cannot cure without committing himself. When important matters are at stake, it makes all the difference whether the doctor see himself as a part of the drama, or cloaks himself in his authority.”[34]

 

Therapists themselves do not want to become mechanical about therapy, and want to be able to be more that just listeners. They are told they must recognise their attraction but not act on it. Sex with a patient is an extremely easy and tempting thing in which to indulge. Take the following example given in a book,

 

“You have seen Shirley for four interviews and consider her extremely attractive. You find yourself having sexual fantasies and romantic fantasies involving her both within and without the sessions. She seems to welcomes any interest you show in her and you suspect the attraction is mutual.

 

1.      Should you ignore and suppress the fantasies as best you can and continue to try to work with this client?

2.      Should you simply enjoy the fantasies, saying nothing about them, and continue with the client?

3.      Should you confess you attraction and make it a topic for mutual examination by you and your client and hope to find a mutual resolution which will allow the continuation of psychotherapy, per se?

4.      Should you terminate the client with as general an explanation as seems to satisfy her and refer her elsewhere?”[35]

 

Given such scenarios, and ease with which they occur, it is hardly surprising that there is a remarkable level of therapist/patient relations. There are very few legal consequences in practice. Like sexual crimes against children, I assume that reporting is rare, follow ups even rarer, and may also be muffled by other invalidating voices[36]. To go further it may even be harder to say it was abuse in cases where the victim initiated contact, and this may leave the victim feeling confused as to whether they have abused. 

 

That said, psychotherapists owe a duty both on a legal level and an ethical level to restrain themselves from causing harm to their patients even if those very same patients want the “sex”. Medical ethics has always gone further and said that the healer must be beneficent, not only non-maleficent[37] - that is he must actively pursue the good of the patient. Autonomy is a principle which is subjugated to the need to beneficent. The good of the patient must always trump the “consent” issue in the therapist’s evaluation of whether he should continue the treatment.

 

The autonomy of the patient is a harder issue to brace. For instance, some therapist/client relations may be cursory – for example:

 

“Babette was in a long-term therapeutic arrangement with a counsellor. He fell ill and could not keep the next appointment. Babette was going through a family crisis at the time and desperately needed to talk to someone about her situation and about the side-effects of her new anti-depressant, Aropax. She went to a crisis centre on the other side of the city and seen once by George, a recently graduated psychologist, who was acting as a locum there. They got along well, and although they only spent a short time together (approximately an hour), Babette felt he could be the “one” she’d been looking for all her life. George didn’t explore Babette’s problems in depth and just gave her some general relaxation exercises, and addressed her concerns about the Aropax. Later that week Babette got the courage to ring his workplace and ask George out. George accepted.”[38]

 

This is a case where the relationship would probably not be considered unethical by most practitioners even though it breaches written ethical guidelines. Should the patient in the above situation be given leave to informed consent if they end up in bed together on their first date? It seems a very different case to that of long-term therapy, and it seems Orwellian, and patriarchal, to deny a woman her right to have sex with whomever she pleases. The ethical complexities are huge when it comes to laying down hard law in this area.  Possible infringements on patient autonomy are to be feared – shall the State say who we associate with and to what degree? Isn’t abuse something we have to put up with if we are to have freedom to consent? – There is no easy answer.

 

A topic of special interest to me is post-session relationships. Many consider them unethical as reflected in the APS ethical code which stipulates a two year period between the finish of the session and the start of sexual relations[39]. This two-year period is rather artificial, but may well be the best way of avoiding controversy. Therapists cannot end their professional relationship and immediately start a new kind of equal and loving relationship with their client cum lover and be free of charges of unethical conduct. How and when a new relationship may begin is one of the most difficult questions in this area, if it can begin at all. If consent can be negated by the initiation of therapy, then this goes against the common myth that “love will conquer all”. The word “love” has been used in our culture to justify illegal and irrational acts. I feel there is a sentiment in the community that therapists and clients should be given a way to pursue “true love”. This manifests itself in the 2-year limit[40] which is again an attempt to find a middle-ground, but a rather ludicrous attempt, because as we all know (psychologists most of all!) relationships do not recognise time-limits. When there is attraction it is either acted upon, or some kind of frustration ensues.

 

There is no reason consensual consent should be impossible to give, although because there is no way of policing abusers, the professional bodies prefer a blanket “no-one shall consent” on in their guidelines. The penalty is loss of livelihood or suspension. There is also the civil system where damages may be recovered for malpractice. I would suggest that this protection is adequate, because to amend the criminal legislation to expand the meaning of “consent” would result in unwanted rape convictions. It would change the whole way professionals deal with their clients. A rigid punishment regime would not even necessarily protect the minority of mentally-vulnerable women who are potentially at risk of grievous sexual abuse. Although there is a great deal of anger aimed at powerful and malicious offenders broadening the ambit of the criminal law using consent is an extreme way of dealing with a delicate situation. It is like using an axe to crack open a nut. The criminal law could be changed in a more constructive way if the emphasis is moved from consent onto other matters, such as the inequality of the relationship in particular types of therapist/client sexual relations, eg. establishing that an adult-adult relationship does not, or cannot, exist in certain cases.