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More on Sex Between Professionals and Their Former Clients:

Caddy v. State, 764 So. 2d 625 (Fla. App. 2000), offers an interesting treatment of the issue. The Florida Constitution expressly secures a right to privacy, which the courts interpreted (in my view, quite reasonably) as presumptively protecting sexual autonomy. Florida law barred all sexual contact between a psychologist and a former client "in perpetuity"; interestingly, while Florida law banned sexual contacts between doctors or psychiatrists and patients, it only covered former patients "on a case by case basis with consideration given to the nature, extent, and context of the professional relationship between the physician and the person."

The Florida Court of Appeal held that the law was facially overbroad, and violated the state constitutional right to privacy. The court concluded that "the State has a compelling interest in protecting the mental health of its citizens, and there is an obvious power imbalance in the psychologist-patient relationship that involves the most basic mental and emotional characteristics of the patient." But it held that the State should have served that interest using a "[less] intrusive means," such as "a rule calling for a decision based on the individual facts of a case" rather than a flat "forever banned" rule.

Here, by the way, were the facts of the case:

In mid-1986, an attorney representing D.J. in divorce proceedings retained Dr. [Glenn R. Caddy, a university professor and forensic psychologist] to perform a forensic assessment on D.J. relative to a child custody dispute. Dr. Caddy met with D.J. on several occasions, examined the child, considered reports from other psychologists in his office, consulted with D.J.'s attorney, and submitted to a deposition as an expert witness. The extent of Dr. Caddy's professional involvement with D.J. lasted for about one month, and he had no further contact with her on a professional basis after October of 1986.

About nine months later, D.J., now divorced, sought out Dr. Caddy in his office at Nova Southeastern University to ask him questions about some courses she was contemplating taking. The two renewed their acquaintance and, thereafter, commenced a friendly relationship which included sharing lunch or dinner on a few occasions. In September of 1987, nearly a year after appellant had seen D.J. in a professional capacity, their relationship became more intimate, including sexual intimacy. This relationship, which was at times tumultuous, included periods when the two shared a residence and continued over the next six years until they parted company under less than friendly circumstances.

Soon after the break-up, D.J. filed a complaint with the Board against Dr. Caddy....

Query whether the same result should be reached under the federal Constitution, given the Lawrence v. Texas decision -- which notoriously failed to make clear what constitutional test it was applying to interference with sexual autonomy. Query also whether the same result should be reached under the right to marry, if Caddy and D.J. had married and then had sex after marriage (as was the case with the massage therapist in the case noted in my earlier post, though the rule there imposed only a two-year ban on sex rather than a perpetual ban). The Court has held that infringements on the right to marry are indeed subject to strict scrutiny or something like it.

Goober (mail):
Prof. Volokh,

I agree that this is interesting subject matter, but I would caution against going too far with this line of thinking or taking the Court's opinions too literally. Yes, the sex-marriage-childbearing-childrearing cases do state that heightened scrutiny is applied to restrictions of this sort.

But it's also kind of apparent that certain classes of restrictions on sexual behavior are not really subject to serious review, and chief among them is probably laws that go to consent to sex, whether encouraging or requiring consent or offering prophylactic measures to prevent nonconsensual sex, etc. If courts really were to apply strict scrutiny to, say, a 17-year age-of-consent law, we'd expect there to be a large number of very hard cases at least, if not reams of opinions striking down such laws. (Is the prevention a 16-year-old from having sex really necessary to accomplish a compelling government interest? Surely it's at least arguable.) And yet constitutional jurisprudence doesn't seem at all concerned with it. It seems that rules that define certain relationships as never being consensually sexual---even complete bars---occupy a sort of separate category in the constitutional regime. Compare Michael D. v. Gerald H. (I'm almost certainly getting the initials wrong), where the Court concluded that although the significance of family rights was a constitutional matter for judges to enforce, nevertheless the definitional question who is a family is something the legislature can decide.
1.8.2007 7:01pm
Fub:
What is even more bothersome about this case is that by the stated facts DJ was not Caddy's client for any therapeutic purpose. Caddy simply performed a routine psychological evaluation, and gave a professional opinion to a court. Then after the court proceedings were done the sexual relationship began.

The rationale often stated for prohibitions on practitioner-client sexual relations is that the client is or becomes psychologically or mentally vulnerable to the practitioner because of mental or emotional dependency (actual or presumed) arising from the therapeutic relationship. Therefore the client's consent is arguably coerced.

But DJ was not dependent on Caddy to heal a physical or mental injury, to remedy a wrong, or any other such emotionally laden thing.

If there needs to be no basis in actual or presumed mental or psychological dependency to support such a ban, then would a ban on sexual relationships of gardeners, mechanics or bankers be equally acceptable?
1.8.2007 9:10pm
PatHMV (mail) (www):
Does the statute flat ban such activity, or is it part of the licensing statute, such that the only penalty for violating it is revocation of one's professional license? For better or for worse, the courts have tended to give states more latitude in regulating professions than in other areas of the law. That's been changing of late, at least in the field of lawyer regulation, but I think there may still be a little more latitude there.
1.8.2007 9:14pm
Truth Seeker:
As a single law student 30 years ago in (Prof. Ronald Rotunda's) professional resposnibility class I remember the first thing I did was look up whether it was forbidden to have sex with a client (just in case I were to fall in love with a client some day) and didn't find any rules against it. I think some such rules for lawyers have been added in recent years.
1.8.2007 9:31pm
Brian G (mail) (www):
The solution is simple. Have a therapsit and his patient have a homosexual relationship. That'll end the issue in perpetuity for sure.
1.9.2007 12:02am
godfodder (mail):
More important than any legislated law regarding doctor/patient boundaries is the opinion of the state's professional regulatory bodies-- medical boards, psychology board, mental health boards, etc. This particular state law may or may not be struck down... it really won't make any difference.

Regulatory boards have all the power in these matters. They are given sweeping powers to supervise their various professions. If they say sleeping with an ex-patient is "unprofessional conduct," well, that is pretty much the end of the matter. They can't put you in prison, but they can take away your license to practice your profession, which is in some respects almost as bad.

Professional boards (except the Bar, in some states) have decided that "the public image" of their respective professions precludes any sexual contact betwen a therapist/doctor/healer and a patient. No exceptions. I think there is very little chance that this will change in the forseeable future.
1.9.2007 12:18am
Tom Holsinger (mail):
Did this law likewise prohibit sexual intercourse between mental health providers and former patients after matrimony? For that matter, did it prohibit them from marriage as well as intercourse?

I seem to remember some rulings concerning laws prohibiting miscegenation, and some justice's statement about marriage in relation to birth control, plus the latter's outcome eventually expanding to unmarried persons.
1.9.2007 1:13am
professays (mail):
And what about sex with people who are still one's clients
1.9.2007 6:41am
AppSocRes (mail):
Whoever was D.J.'s opponent in the child custody case should certainly have their attorney ask the courts for a review of the case. Dr. Caddy's subsequent relation with D.J. suggests that his evaluation may have been something less than professional and unbiased.
1.9.2007 8:34am
A.C.:
Would the perpetual ban make sense in the case of a massage therapist or an eye doctor? I would think not -- although I definitely think any professional relationship should end before the personal one begins. Some gap in time between the two also seems reasonable, but the two years in the massage therapy case seems excessive.

The perpetual ban makes somewhat more sense in the case of psychiatrists and psychologists. Some patients really are extremely vulnerable and stay that way for years. But I'm not sure that's the best rule for all cases. Many people who see psychologists -- maybe most -- are dealing with temporary problems like stress. Others see mental health practitioners because of OTHER people's problems, if they are family members or caregivers. There's a big difference between patients like this and people wrestling with severe mental illness, so I'm not sure that ANY one-size-fits-all rule would work in this context. Massage therapists face the same range of clients
1.9.2007 11:00am
Fub:
AppSocRes wrote:
Whoever was D.J.'s opponent in the child custody case should certainly have their attorney ask the courts for a review of the case. Dr. Caddy's subsequent relation with D.J. suggests that his evaluation may have been something less than professional and unbiased.
I don't get it. Really.

By the facts stated:
The extent of Dr. Caddy's professional involvement with D.J. lasted for about one month, and he had no further contact with her on a professional basis after October of 1986.

About nine months later, D.J., now divorced, sought out Dr. Caddy in his office at Nova Southeastern University to ask him questions about some courses she was contemplating taking. The two renewed their acquaintance and, thereafter, commenced a friendly relationship which included sharing lunch or dinner on a few occasions. In September of 1987, nearly a year after appellant had seen D.J. in a professional capacity, their relationship became more intimate, including sexual intimacy.
I suppose one could reason that the phrase "he had no further contact with her on a professional basis after October of 1986" is weasel worded to hide a putative personal relationship continuing until nine months later. But that seems a stretch to me.

I don't understand how an intimate relationship formed subsequent to the evaluation, and after nine months of no contact whatsoever, could affect the evaluation. Did Caddy and DJ fall in love at evaluation time, connive to stay apart some interval for show, then consummate their planned tryst? Or was some esoteric quantum electrodynamics backward causality operating? Or what?
1.9.2007 11:20am
MDJD2B (mail):
The most common rationale I have heard for barring relationships between professionals and patients/clients is the power imbalance between them. This gives rise to a fiduciary relationship that puts a great burden on professionals to show that they did not use the professional side of the relationship to take advantage of the non-professional side.

A secondary consideration is whether the client who grants sex is exerting power over the professional.

All of the specifics should be judged in this contest. Is the massage therapist relationship one of such power that the massagee is likely to have sex with the massagor out of fear, or to get better massages? Not likely.

The case of the psychologist is less clear-cut. Were it concurrent, the parent micht be having sex with the psychologist to affect the evaluation. In that case the disciplinary action would have been warranted. If there had been a therapeutic relationship at any time between therapist and client, the relationship would have been unporfessional, because it might have been initiated as a result of the client's vulnerability.
1.9.2007 11:46am
Bill Dyer (mail) (www):
I'm absolutely unsympathetic to Dr. Caddy or anyone even remotely close to being in his shoes.

What you do in your bedroom may be constitutionally protected. Your right to pick particularly vulnerable people to bring to your bedroom is not.

State legislatures could rationally conclude that they ought to permit an individualized case-by-case review to determine whether there was an abuse of authority, an imbalance of power, genuinely informed consent, and the like.

Or state legislatures could rationally conclude that making the law fuzzy by mandating case-by-case determinations would have the practical effect of encouraging tightrope walks and boundary-testing around the perimeter of what's permitted. I strongly believe that this is the way to go -- exactly as with laws against kiddie porn and statutory rape. The minors are conclusively presumed by statute to be incapable of making informed decisions and giving legitimate consent. So, too, should be medical/psychological patients and legal clients.

Yes, there are some 15 year old girls who probably are sufficiently mature and self-possessed that if we were to engage in a case-specific set of balancing tests, we'd conclude that they aren't at particular risk of abuse and overreaching by a sexual predator. But there are too many 15 year old girls who aren't -- and it's just better not to start down that path.

Sexual predation isn't something that ought to be toyed with, trivialized, rationalized, or made the basis of relativity and comparisons. Bright lines are useful; here they are relatively practicable. Permitting shades of gray, by contrast, invites repeated personal catastrophes.

Part of the price for becoming a professional licensed by your state is that you give up the right to have sex with certain people. Deal with that, or find a new career. There's no shortage of other jobs, and no shortage of other potential sex partners.
1.9.2007 9:03pm
Bill Dyer (mail) (www):
BTW, re my reference to 15 year old girls above: Same rationale, same reasoning, same result with respect to 15 year old boys. I'm a parent with two boys and two girls; my younger son just turned 15 and my older daughter will soon turn 16. I trust them and respect their decision-making abilities in general. But I'm also perfectly happy for them to be protected by state laws on statutory rape and by state and federal laws on kiddie porn. This isn't about sexism, it's about particular broad categories of vulnerability.
1.9.2007 9:13pm
Bill Dyer (mail) (www):
Bah. Three posts in a row = poor proofreading. Younger son actually just turned 14, not 15.
1.9.2007 9:14pm
arbitraryaardvark (mail) (www):
I've sometimes wondered about the reverse: am I ethically obligated to refuse to provide legal services to people I've had sex with? That is my current practice, even though some of them have unmet legal needs, but I'm not sure if that's the rule.
1.9.2007 10:14pm
Mary Katherine Day-Petrano (mail):
BD -- "State legislatures could rationally conclude that they ought to permit an individualized case-by-case review to determine whether there was an abuse of authority, an imbalance of power, genuinely informed consent, and the like."

I'm not addressing the issue of minors, but if the class is qualified disabled, then it is not rational basis, but rather strict scrutiny. See Tennessee v. Lane; Associated Disabled Students (11th Cir.). I doubt the legislature could demonstrate a compelling state interest for a blanket rules applicable to such a vague criteria as "vulnerable people."

Speaking as a disabled person, if I wanted to be brought to someon's bedroom, I am sure I could make my own free choice and I'm also sure I could let them know if I fully consented. Please.
1.10.2007 11:41am
Mary Katherine Day-Petrano (mail):
"Permitting shades of gray, by contrast, invites repeated personal catastrophes. "

On the other hand, the upside is permitting individualized narrowly tailored rules (respecting qualified disabled people), allows great sexual relationships to flourish, maybe even falling in love, and sometimes even marriage. I know. I'm married. Why would I want to give up great sex? and not every one is a predator, the rule you advocate also suffers froim being unconstitutionally vague.

"Part of the price for becoming a professional licensed by your state is that you give up the right to have sex with certain people. Deal with that, or find a new career. There's no shortage of other jobs, and no shortage of other potential sex partners."

Mett the ADA, Title II requires reasonable modifications of law, rules, policies, practices, and procedures of a State or local government. So I dispute your poiint of discrimination against people who are or want to become qualified disabled lawyers, and double dipute it is the spouse of one who likes to have great sex.
1.10.2007 11:48am
Mary Katherine Day-Petrano (mail):
"Mett"=meet. FYI, BD, I use speech recognition, when its off, I get typos, among other problems. IT is not all about "proofreading," sometimes it is about meaningful access.

And another thing, why do you have the stereotypical misconception all people can find another job? Some people, e.g., autistics who are resistant to change, have repetative behaviors, narrow range of abilities, and perseverate, are only capable of working in the specificx types of jobs for which they are trained -- i.e., if you train an autistic to be a lawyer, then that is what the person is trained to do, and the skills of this disability do not translate generally over to much anything other than being a lawyer, a law clerk (not paralegal), or clerkship.

Another reason your proposal for the unconstitutional rule would be challenged.
1.10.2007 11:54am
gasman (mail):
These laws all presume that the sexual relationship follows the doctor-patient relationship. How would they be interpreted if the opposite were to happen. By example, I am a physician, and my wife becomes my patient of record. I do in fact provide some medical care. To avoid the most common reason for which docs get into trouble with the state licensing boards, I keep an office chart for her. I do not bill her nor the insurer to avoid that financial conflict on interest that the insurer could invoke.
Do these laws prevent bedfellows from becomming patients?
1.11.2007 9:10am