ETHICS FOR TEXAS LPCs: BOUNDARIES (3 hours $19)
INTRODUCTIONBoundaries refer to the
judgments that we make about our rights and needs in regards to each other.
Boundary problems cause a high percentage of malpractice claims. (Norris,
D. M., Gutheil, T. G., & Strasburger,
L. H., 2003)
The fundamental idea that
runs through all ethics, and that helps clarify the nature of boundaries is
that of client welfare. The American Psychiatric Association has annotated the
Principles of Medical Ethics of the American Medical Association in order to
help psychiatrists apply these ethics to their practices. These annotations
also bear on counseling and psychotherapy in general. Regarding client welfare
A psychiatrist shall not gratify his or her own needs by
exploiting the patient. The psychiatrist shall be ever vigilant about the
impact that his or her conduct has upon the boundaries of the doctor-patient
relationship, and thus upon the well-being of the patient. These requirements
become particularly important because of the essentially private, highly
personal, and sometimes intensely emotional nature of
the relationship established with the psychiatrist. (American Psychiatric
These annotations also
highlight the challenge created by not only a doctor-patient, but also a
Further, the necessary intensity of the treatment relationship may
tend to activate sexual and other needs and fantasies on the part of both
patient and psychiatrist, while weakening the objectivity necessary for
control. Additionally the inherent inequality in the doctor-patient
relationship may lead to exploitation of the patient. Sexual activity with a
current or former patient is unethical. (Ibid)
On the other hand, boundary
crossings refer to legitimate ways counselors contact or confront clients,
while boundary violations refer to unfair or excessive measures or
manipulation. Respect for boundaries equates for respect for the rights of the
client. Something as subtle as sitting too close to a client that feels
uncomfortable about it may be a boundary violation, because it may impede
therapy even if the client is not conscious of it.
Counselors should not be
dissuaded from effective interventions because of overly rigid or outdated
definitions of boundaries. For example, counselors have observed that an
adolescent with emotional problems may say much more on a walk or bicycle ride
than sitting face to face in an office. Referring to seeing a client outside of
an office setting as a dual relationship would be excessive in this case.
The greater risk a
counselor has for trespassing on a client’s boundaries (because, for example,
of a tendency toward impulsiveness or because of difficulty parsing subtle body
language), the more the counselor should rely on the specific guidelines for
counselor behavior from their training. Counselors who are especially adept at
sensing their client’s comfort level and adapting to client’s cultural
backgrounds will have more to go on, though they should not become
overconfident until they have a track record of success in providing therapy.
Training and textbooks for counselors often provide very specific and helpful
guidelines on issues such as touch, expressions of concern, fee adjustments,
pro bono work, the provision of case management and reports and the amount to
charge for such services, and so forth.
notes that many LPC’s engage in common practices that may actually be boundary
violations themselves. Such practices, when taken individually, usually do not
amount to professional misconduct; however, they may provide evidence of a
pattern or practice that support later allegations of serious misconduct,
including sexual misconduct. Such warning signs include:
Changing procedures for a patient,
including extending appointments, reducing or waiving fees, etc.;
Mishandling or not handling
"inappropriate client behavior" (e.g., missing appointments, not
paying fees, etc.);
Attempts to influence the patient's
"philosophical or political positions";
Nonprofessional, out-of-office contact
with the patient (i.e., for non-therapeutic purposes); and
Failure to "terminate the
relationship when the [patient] no longer needs therapy. (Bisbing,
S. B., Jorgenson, L. M. & Sutherland, P. K., 1995)
Such "lesser" boundary
violations may reduce inhibitions and set the stage for greater ethical lapses.
Moreover, if a therapist has engaged in such practices, a patient's
disciplinary complaints or malpractice claims for sexual misconduct are more
likely to succeed: Kuniholm and Church report that
"experts observe that claims against therapists for sex abuse are
generally more believable in he context of other
boundary violations." (Kuniholm, E. F., &
Church, K., 2002)
Texas Statutory framework
§ 681.41 includes a number of
requirements that deal with setting and maintaining appropriate professional
boundaries, ensuring that all actions are in the best interest of the client,
and avoiding financial or other situations that create a conflict of interest
or other professional pitfalls. While such situations encompass a wide variety
of subjects, they share one common theme: LPC’s must ensure that any action
they take is in the client's best interest, rather than their own.
Under § 681.41(g), "[a] licensee
shall provide counseling treatment intervention only in the context of a
professional relationship." This subsection prohibits "informal"
counseling of a person with whom the LPC does not have a professional
counseling relationship. (A related requirement, under subsection (t), provides
that an LPC "shall not evaluate any individual's mental, emotional, or
behavioral condition unless the licensee has personally interviewed the
individual or the licensee discloses with the evaluation that the licensee has
not personally interviewed the individual." However, subsection (t) is
aimed less at preventing dual relationships than at preventing speculative,
inaccurate, or unqualified judgments about an individual's psychological
Under subsection (k), an LPC is
required to "set and maintain professional boundaries. Dual relationships
with clients are prohibited." The statute defines a "dual
relationship" as "any non-counseling activity initiated by either the
licenses or client for the purpose of establishing a non-therapeutic
relationship." Such broad language may encompass specific acts that, while
not intended (at least in the LPC's mind) "for the purpose of establishing
a non-therapeutic relationship," may nonetheless have that effect.
Examples include lending money to or accepting a loan from a client, giving a
gift to or accepting a gift from a client, or even having a cup of coffee with
a client (regardless of who pays). It may also encompass such circumstances as
leasing office space from a client; renting property to a client; or engaging
in any sale, purchase, or other financial arrangement. Subsection (k)(2) provides:
The licensee shall not give or accept a
gift from a client or a relative of a client valued at more than fifty dollars,
enter into barter for services, or borrow or lend money or items of value to
clients or relatives of clients or accept payment in the form of services
rendered by a client.
One challenge that LPC’s frequently
confront is how to set and maintain appropriate professional boundaries. The
therapeutic process, which regularly includes the phenomena of transference and
countertransference, necessarily involves intense
emotions. Clients tend to be emotionally vulnerable at the best of times; in
many instances, the very reasons they seek counseling concern issues such as
dependency, isolation, marital and family problems, and other situations that
can trigger strong emotional responses during therapy. LPC’s' clients are thus
likely to be unusually susceptible to boundary violations. Indeed, they often
may not even recognize what boundaries are appropriate and may actively try to
Mental health ethicists
emphasize that, in all circumstances, it is by definition the responsibility of
the therapist, not the client, to set and maintain appropriate professional
boundaries. (Pope, K. S. & Vasquez, J. T. 1998) LPC’s must have a firm understanding of which boundaries
are appropriate, and must have sufficient confidence and self-control to
enforce them. Nonetheless, studies frequently show that therapists regularly
list boundary problems as among their greatest ethical challenges.
Likewise, LPC’s should not engage in
outside business or financial relationships with clients. Such relationships
create interdependencies between therapist and client apart from the dynamic of
the therapy process, and can have negative effects on that process. In
addition, social, business, or financial relationships between an LPC and a
client often create conflicts of interest: The LPC may develop a "vested
interest" in certain outcomes that may encourage her to behave in ways
that are not in the client's best therapeutic interest.
As noted below, Texas LPC’s are barred
from accepting business associates as clients. However, inappropriate
"business relationships" can arise in a variety of other contexts.
Under § 681.41(j), "[a] licensee shall not promote the licensee's personal
or business activities to a client unless the licensee informs the client's of
the licensee's personal or business interest in the activity." Such
interests may include, e.g., suggesting enrollment in a course the LPC teaches;
suggesting the purchase of a book, CD, or course materials by the LPC;
suggesting that the client participate in or contribute to a function sponsored
by a charity or other entity with which the LPC is affiliated; asking a client
to provide "testimonials" as to the value of the LPC's services or
skills; or referring a client or a client's family member to another
professional (in any field) who is related to the LPC. These are only a few
examples. When in doubt, an LPC should err on the side of caution. Subsection (i) of § 681.41 provides a useful
general guideline: "A licensee shall not engage in activities for the
licensee's personal gain at the expense of the client."
One other form of dual relationship
involves serving as therapist to family members, friends, students, or
colleagues. Under § 681.41(k)(1), LPC’s are prohibited
from counseling certain classes of people with whom the LPC has such other
relationships. Subsection (k)(1) provides: "The
licensee shall not provide counseling services to previous or current:
The language of this subsection applies
both to individuals who currently fall into any of these categories and to
individuals who have previously fallen into any of these categories. The
language of this subsection does not define the word "previous," so
LPC’s should assume that the prohibition on extends to any previous member of
these categories, regardless of how long ago the relationship existed. Again, if
an LPC is unsure whether a pre-existing relationship is sufficiently close that
a counseling relationship would be inappropriate, he should err on the side of
caution and refer the individual to another practitioner.
Self-disclosure by an LPC is
traditionally considered a valid therapeutic technique. However, LPC’s must
also be aware that excessive self-disclosure can lead to other forms of
boundary violations; it frequently precedes therapist-client sexual contact.
Moreover, malpractice suits against therapists often cite "excessive
self-disclosure" as evidence of negligent diagnosis and/or treatment.
It can be difficult to determine when
self-disclosure becomes "excessive." When in doubt, experts recommend
that, before making the disclosure, LPC’s answer the following question
honestly: Will making this disclosure truly benefit the client, or will it
simply benefit the therapist? The LPC should not make
the disclosure if she cannot truly say that it is for the client's benefit.
People of different
cultures may have very different ideas and feelings about boundaries.
Counselors in training from highly communal cultures have claimed to feel very
awkward in refraining from freely offering help that would be considered
excessive in western contexts. Physical proximity, the significance of touch,
the value of individuality and assertiveness, and many other factors are all
culturally sensitive issues. Counselors must collaborate with clients in
choosing valid therapeutic outcomes, and this can require cultural sensitivity.
It is an excellent subject for continuing education, particularly where the
cultures of populations the counselor comes into contact with are concerned.
Cultural differences are not necessarily matters of country of origin. Class
and lifestyle differences can be sources of misunderstanding and conflict as
whether of a minority race, disability, or other factor, tend to
experience more stigma, discrimination and violence, and to have more stress in
adapting to mainstream culture and activities. This can bring some groups to
counseling at higher rates than the general population.
These are additional
reasons for counselors to gain training and experience with minority
populations. Being a member of a minority population, however, does not
automatically endow the counselor with all the skills necessary to work with
that population. It does, however, increase the risk of loss of objectivity or
boundaries through over-identification or seeing the client as a source of
support or sexual gratification. Specialized training is still advisable.
Counselors must deal with a
challenge to the management of boundaries in smaller communities, whether they
are social groups that the counselor is involved in, or actual geographic
communities such as small towns. It may be a hardship for a counselor in a
small town to go to another town for all social and business involvement, and
likewise, it may be a hardship for the counselor to limit his or her practice
to another town when he or she lives in an isolated area.
Counselors must be very
careful to establish expectations on the part of their clients regarding
confidentiality and how to interact in public settings when the client
encounters the counselor. Often, the counselor must take a cue from the client
as to how to interact, so long as it is in the best interest of the client.
Counselors in small communities must apply boundary guidelines in a manner that
adapts to the situation while preserving the primary value of the client’s
Similarly, counselors may
be involved in social groupings, but in a limited manner, that allows them to
interact with people in a way that may result in their contacts coming to see
them or in referring people to the counselor. Such social groupings may include
classes and lectures that the counselor conducts, or even certain social
groupings that the counselor does not depend upon for social support. For
example, a counselor who uses art and who is involved in an organization that
promotes art therapy may be visible in that social network as a counselor, and
derive clients from that involvement. However, the involvement is primarily as
a contribution to the community, rather than an intimate social support network
for the counselor.
The counselor will be even
more challenged when an acquaintance refers someone to them. If the
acquaintance is likely to become a friend, then it is also likely that the
person being referred will become a part of the counselor’s intimate social
network. In that case, the referral should be directed to another counselor.
It has been said that we
have the morals that we can afford. This could be taken as advice to maintain
solid financial footing while developing a practice. A good means of doing this
is by gaining experience in employment that involves a great deal of clinical
decision-making and provision of counseling or psychotherapy. This serves the
dual purpose of building experience while interacting more intensively with other
clinicians that is typical in private practice, as
well as maintaining and building a financial base for practice development if a
private practice is desired.
Introduction and Legal Framework
Applicable state law includes: Texas
Occupations Code Chapter 503 (hereafter, "Chapter 503"); and the Code
of Ethics of the Texas State Board of Examiners of Licensed Professional
Counselors, codified at Texas Administrative Code Title 22, Part 30, Chapter
681, Subchapter C, Rule §681.42, Sexual Misconduct (hereafter,
Perhaps the most obvious form of
boundary violation involves therapist/patient sexual and romantic
relationships. Of all forms of boundary violations, many experts believe that
these are the most harmful. A number of studies have demonstrated that clients
who are victims of therapist/patient sexual contact experience
disproportionately high rates of adverse effects, including suicide. Experts
also note that, perhaps to an even greater degree than other types of boundary
violations, therapist/patient sexual contact is always, by definition, the
therapist's fault. In many jurisdictions, it is a criminal offense subject to a
term of imprisonment; in all jurisdictions, it is a disciplinary offense and
constitutes malpractice. Sexual boundary violations are discussed in detail in
a separate course.
However, numerous other forms of
boundary violations exist, and it is frequently easier for an LPC to find
himself caught in such a situation where there is no sexual component. Examples
include sharing meals with a client; visiting a client's home; inviting the
client to visit one's own home; socializing at a party, sporting event, or
other activity; or other professional or employment-related affiliations.
Experts counsel LPC’s not to see clients outside of the consulting context, to
avoid development of social relationships that can adversely affect the
therapeutic process. Likewise, LPC’s should not accept as a client any
individual with whom the LPC has previously interacted in a social context.
In addition, LPC’s should not engage in
social, business, or other relationships with a relative or other associate of
a client. Subsection (k)(3) provides that "[t]he
licensee shall not enter into a non-professional relationship with a client,
client's family member or any person having a personal or professional
relationship with a client, if such relationship could be detrimental to the
Concerns about sexual misconduct by
health professionals are hardly new. The earliest published text to address the
issue is the Corpus Hippocratum, "a body of
about 70 medical texts compiled by the Library of Alexandria during the 4th and
5th centuries B.C." that includes the "Hippocratic Oath." (Schoener, G. R. 1998) The oath states, "I will abstain
from all intentional wrong-doing and harm, especially from abusing the bodies
of man or woman, bond or free." (Ibid) Others have found such admonitions
as early as the code of the Nigerian healing arts. (Pope, K. S. 2001)
The founders of psychotherapy,
including Freud, Jung, Breuer, and Ferenczi either
engaged in or sanctioned what today we would call sexual misconduct. They
tended to ascribe responsibility for professional sexual conduct to their
female patients. (Schoener, G. R. 1998) (Ibid)
Freud used as a treatment model the
1880 case of "Anna O.," one of Joseph Breuer's hypnosis patients. In
treating Anna O., Breuer reportedly did not handle effectively what today would
be called the countertransference process. Breuer's
wife reacted badly to her husband's infatuation with his patient, and Breuer,
in turn, did not cope well with his wife's response: He terminated Anna O.'s
treatment, only to rush to her bedside during a "hysterical
childbirth." (Ibid) Jones reports that Breuer "fled [Anna O.'s] house
in a cold sweat" and the next morning decamped with his wife for a second
honeymoon in Venice.
Freud reportedly drew on Breuer's
hypnosis practice, including his treatment of Anna O., in developing his psychoanalytic
approach. Freud coined the term "transference" to describe the
displaced feelings (including romantic and sexual feelings) that his patients
developed for him during the analytical process. However, while he asserted
that analysts should not become romantically or sexually involved with their
patients, he excused such conduct by his male colleagues.
In the most glaring example, Freud
inserted himself into a romantic relationship between one of his former
students, Horace Frink, and one of Frink's patients. Freud not only urged Frink
to leave his wife and marry the patient, but he evidently did so in the service
of his own financial interests. (Schoener, G. R.,
1997) The patient's family was wealthy, and Freud apparently believed that if Frink married the patient, her family would make a
significant financial contribution to Freud's own work. (Ibid)
Another incident involved Freud's
former student, Ferenczi. One of Freud's former
patients, Elma Pálos, later commenced therapy with Ferenczi; at the same time, her mother, Gisella
Pálos, was romantically involved with Ferenczi and eventually would become his wife. (Ibid,
citing Gabbard, 1995 and Gabbard
& Lester, 1995) However, while treating Elma, Ferenczi
became sexually involved with her as well as with her mother. (Ibid) While
Freud had warned Ferenczi that he should avoid sexual
activity with patients, with regard to his involvement with Elma and Giselle Pálos, he also reportedly tried "to influence [Ferenczi's] choice of a mate." (Ibid, citing Gabbard, 1995)
Even in his criticisms of Ferenczi's sexual entanglements with patients, Freud
appears to have dismissed such sexual contact as "old misdemeanors."
(Ibid, citing Mason, J. M., 1984) For his part, Ferenczi
contended that those "old misdemeanors," which he characterized as
"[t]he sins of youth," "can make a man wiser... Now, I believe,
I am capable of creating a mild, passion-free atmosphere, suitable for bringing
forth even that which had been previously hidden." (Ibid, citing Mason, J.
M., 1984, p. 160)
Several years earlier, Carl Jung had
likewise become sexually involved with a patient. Sabina Spielrein,
a 19-year-old medical student in "desperate mental distress," first
came to Jung for analysis and therapy in 1905. (Ibid, citing Gay, 1998) Jung treated
her over the next four years, and, according to Gay, "[took] advantage of
her dependency [and] made her his mistress." (Ibid) At one point, Jung
wrote to Freud that "the situation had become so tense that the continued
preservation of the relationship could be rounded out only by sexual
acts." (Ibid, citing 236). In other
correspondence, he justified this sexual relationship by alleging that Spielrein was "systematically planning [his]
seduction." (Ibid, citing McGuire, W., 1988) Freud responded in kind:
Writing of "[t]he way these women manage to charm
us with every conceivable psychic perfection until they have attained their
purpose," he excused Jung's conduct by faulting Spielrein.
(Ibid, citing McGuire, W., 1988, p. 231)
However, Jung's exploitation of his
young patient did not stop with the affair: Rumors of the affair began to
circulate, and Jung assumed that Spielrein was
responsible. He later admitted: "Caught in my delusion that I was the
victim of the sexual wiles of my patient, I wrote to her mother that I was not
the gratifier of her daughter's sexual desires but merely her doctor, and that
she should free me from her." (Ibid, citing McGuire, W., 1988) In that
same letter, he justified shifting from a doctor/patient to a social relationship
"the more easily" because he had not been charging Spielrein professional fees. (Schoener,
G. R., 1997, citing Donn, L., 1990) He then suggested
that if his patient wanted him "to adhere to strictly to [his] role as
doctor," he was entitled to receive "a fee as suitable recompense for
[his] trouble." (Ibid) As the situation worsened, Jung even asked Freud to
intervene by writing to Spielrein's mother. Freud did
so, and subsequently advised Jung not to blame himself
for the mess, asserting, "[I]t was not your doing but hers." (Ibid)
Women were not exclusively victims,
however: Some of the early female professionals in the mental health field
likewise engaged in sexual activity with patients. Karen Horney reportedly was
involved in what she characterized as "restricted relationship[s]"
with patients. (Ibid, citing Wolff, W. 1956, p. 87) Her biographer, Susan
Quinn, describes a "romantic relationship" between Horney and a young
male patient, which Quinn appears to rationalize as an example of "old
impulsive ways [that] survived into middle age." (Ibid, citing Quinn, S.,
1988, p. 378)
Horney allegedly became sexually
involved with patients and students with some regularity. Schoener
describes Horney as having regularly "played favorites" with her
lovers, temporarily elevating one to favored status, then
suddenly replacing him with another. (Ibid, citing Paris, B. 1994, p. 142)
Fromm-Reichmann acknowledged engaging in a romantic relationship with a
patient: her future husband, Erich Fromm. According to Schoener,
Fromm-Reichmann congratulated herself for having the "common sense"
to end the therapist/patient relationship before they married. (Ibid, citing
Fromm-Reichmann, F., 1989)
Incidence and Dynamics
The relationship between
counselor and client is fraught with motives and needs that can result in sex
between counselor and client.
It took a long time for the
scope and even the existence of the problem to be acknowledged. In the late
1960’s, the first research into the subject was undertaken, but the resulting
report was suppressed by the Los Angeles APA, despite its own ethical
prohibition against suppressing research findings. (Forer,
The earliest research into
incidence rates for sexualized contact with health care providers came from a
survey of psychiatrists, obstetrician/ gynecologists, surgeons, internists and
general practitioners, and reported that as many as thirteen percent indicated
that they had engaged in erotic behavior with clients, with 7.2% acknowledging
sex. Of the providers surveyed, psychiatrists and surgeons reported the lowest
rate of erotic contact, at 19%. (Kardener,
S. H., Fuller, M. & Mensh, I. N., 1973)
In the early 1970’s, data
from malpractice carriers and a poll of psychiatrists revealed that the problem
was far more common than believed. In 1971, 11% of male psychiatrists admitted
to having sex with at least one client. 80% of those psychiatrists had sex with
multiple patients. (Gabbard,
G. O., 1989)
It appears that the
incidence rates of erotic contact between psychotherapists and their clients
has decreased a great deal as a result of improved awareness of the issue, its
consequences, and because of the large number of successful criminal
prosecutions and civil suites, beginning with the 1968 case of Zipkin v. Freeman. The legal bases for civic suits include
negligence, malpractice and breach of fiduciary duty. Legislation was
formulated beginning in 1983 that now includes criminal and civil statutes. (Jorgenson,
L & Sutherland, P. K., 1993)
The change in perception
that began in the 1970’s resulted in claims of sexual abuse by counselors and
physicians to begin to be taken seriously. In the decades preceding this
change, it was believed that such abuse was rare, that allegations were
fantasies, and that allegations of incest were invalid for the same reasons.
More time passed before there were laws and ethical codes addressing the
It was not until 1991 that
the American Medical Associations Council on Ethics and Judicial Affairs
codified the injunction against sex between physicians and their patients. (Gabbard, G. O., 1989, citing Campbell, M., 1989) Rules
comparable to the AMA’s were later adopted by the American College
of Obstetricians and Gynecologists (1997) and the American Academy
of Pediatrics (1999).
Research has associated the
following problems resulting or being increased in clients by sex with their
counselor: sexual dysfunction, anxiety disorders, psychiatric hospitalizations,
suicide risk, depression, dissociative behavior, guilt, shame, anger,
confusion, hatred, inability to trust and feelings of worthlessness. (Pope,
K. S., 1989) It has been estimated that only four to
eight percent of victims ever report these experiences. (Gartrell, N., et al., 1987)
It appears that clients
suffer similar kinds of harm at similar rates regardless of the type of health
care provider with whom they had sexualized contact. (Feldman-Summers,
S. & Jones, G., 1984, p. 1058)
Controversies remain as to
the degree to which clients are harmed and the kind of compensation that should
be required in civil suits. Research showing harm in the form of mental
disorders resulting from such contact has been criticized on methodological
grounds as well as on the bases that a single incident or series of incidents
that do not qualify as precursors for post traumatic stress disorder within the
DSM-IV criteria cannot be alleged to be the sole source of the disorder in a
Although flaws have been
pointed out, surveys of clients who have experienced sexual relationships with
their counselors offer alarming numbers and types of harm. Even if one takes
the position that this kind of harm is not typically the result of sex with a
counselor, there remain the matters of abuse of power, the damage to the
investment the client has made in counseling, the time and creative energies
that the counselor has taken from the client, and the stresses and distractions
posed by subjecting the client to circumstances that are highly socially
stigmatized and humiliating. In addition, from the perspective of society,
there is the damage to the reputation of the profession of counseling, the
effect this can have in reducing utilization of appropriate mental health
services, and the resulting harm to citizens and society at large. The power imbalance
between a psychotherapist and client brings into question the idea that there
can be meaningful consent on the part of the client. (Appel,
J. M. 2004)
Add to this the likelihood
that a sexual relationship will cloud the judgment of the counselor, potentially
resulting in harm or at least inadequate mental health care because of poor
professional judgment. There is also the data from research indicating that
physicians most likely to engage in sex with clients that result in
professional disciplinary processes are more likely to have impairments
reflected in inappropriate conduct in medical school. This conduct included irresponsibility, cognitive patterns of being special in
ways that made them feel that they were above the rules, and similar problems.
Assuming that this applies to other professional groups, including counselors,
this is an added incentive for not only a disciplinary process, but also for
requiring assessment, supervision and treatment of counselors who have engaged
in boundary violations as needed, in cases where such counselors have retained
or are working to regain the license to practice.
It is very difficult to
determine an accurate rate of occurrences of sex between counselors and
clients. Early studies yielded numbers around 10% of psychiatrists and
psychologists. Later studies showed the numbers dramatically declining.
However, it is unknown whether the increased stigma and attention to the issue
resulted in underreporting or an actual reduction in the rate. (Williams,
M. H., 1992) Sexual misconduct has resulted in a high
percentage of malpractice suits against psychotherapists. (Underwager,
R. & Wakefield, H., 1993)
Research on outcomes of
treatment for counselors who sexually offend has not been encouraging, and
these counselors have the ability to keep their sexual activities with clients
secret for extended periods.
Some counselors are not
merely vulnerable to falling in love or lust with a client, but are actually
predatory in their view of clients as sources of sex. A psychotherapist in Colorado decided to
become a coach because he believed that he would no longer be subject to laws
pertaining to boundaries between client and counselor. This was a poor choice,
however, because coaching can easily fall under the law as performing
psychotherapy, because of how psychotherapy is defined in most states. (Yourell, R. 2007, citing Martinez, A. 1999) This is
especially true when a psychotherapist performs coaching, because the client
has the reasonable expectation that the counselor will use psychotherapeutic
skills and knowledge. (Ibid)
Harm to Clients
The harm caused by therapist sexual
misconduct falls into different categories. The most obvious is psychological
and emotional harm, which may take a variety of forms.
Studies conducted over the last 35
years have amply demonstrated the harmful effects of sexual contact between
therapists and patients. In 1980, Durre published a
study, incorporating research over eleven years that reviewed the effects of,
"amatory and sexual interaction between client and therapist." (Pope,
K. S., 1986) She found that such interaction "dooms the potential for
successful therapy and is detrimental if not devastating to the client."
(Ibid) The array of negative effects that she reported included "many instances
of suicide attempts, severe depressions (some lasting months), mental
hospitalizations, shock treatment, and separations or divorces from husbands...
Women reported being fired from or having to leave their jobs because of
pressure and ineffectual working habits caused by their depression, crying
spells, anger, and anxiety." (Ibid)
Another study three years later
analyzed responses from therapists treating patients who had engaged in sexual
contact with previous therapists. The authors concluded that, in those cases
that had been reported, 90% of the clients suffered harmful effects. (Pope, K.
Such effects included:
· "inability to trust";
· "hesitation about seeking
further help from health (or other) professionals";
· "severe depressions";
· "hospitalizations"; and
A well-known 1991 study by Pope and
Vetter (Pope, K. S., Vetter, V. A. 1992) likewise
concluded that about 90% of patients who became sexually involved with a
therapist were harmed by the contact. Perhaps more surprisingly, Pope and
Vetter also reported that 80% of such patients were harmed even when the sexual
relationship began only after the therapeutic relationship had been terminated.
"About 11% required hospitalization; 14% attempted suicide; and 1% committed
suicide." And of those patients reporting harmful
effects, "only 17% recovered fully," by their own assessments.
The same study also identified what its
authors described as, "10 of the most common reactions that are frequently
associated with therapist-patient sex." It is significant that none of
these reactions is healthy or useful; the best that may be said of them is that
their effects are negative. Pope and Vetter define them as follows:
· "Ambivalence": Patients
suffering from ambivalence often become "psychologically paralyzed, unable
to make much progress in either direction." They note that "[a]mbivalence of this kind is often found among those who have
experienced other forms of abuse," raising the possibility that therapists
who engage in sexual misconduct frequently target patients whose histories of
prior abuse make them particularly vulnerable.
· "Cognitive Dysfunction":
These problems may include "interference with attention, memory, and
concentration. The flow of experience will often been interrupted by unbidden
thoughts, intrusive images, flashbacks, memory fragments, or nightmares."
Pope and Vetter compare the results to post-traumatic stress disorder, noting
that such cognitive dysfunction may impair the patient's ability to engage in
crucial day-to-day tasks: "These cognitive impairments may interfere
significantly with the person's ability to work, to participate in social
activities, and sometimes even to carry out the most routine aspects of
· "Emotional Lability":
Patients suffering from these effects may find that "intense emotions may
erupt suddenly and without seeming cause, as if they were completely unrelated
to the current situation. The emotional disconnect can be profound: a person
can describe a wrenchingly sad event and burst out laughing, or talk about
something funny or wonderful and begin sobbing." Pope and Vetter add that
because "emotional lability can involve
interrupting the flow of experience with extreme, unpredictable, rapidly
shifting feelings," it can leave a patient feeling "helpless,"
"out of control," or "at the mercy of a powerful, intrusive
enemy, an occupying force."
· "Emptiness and Isolation":
Patients may describe "emptiness" as though "their sense of self
had been hollowed out, permanently taken away from them." According to
Pope and Vetter, such feelings are often accompanied by a sense of
"isolation," leaving patients feeling as though they are "no
longer members of society, cut off forever from feeling a social bond with
other people." Elma Palos, Ferenczi's patient
and sexual partner, and the daughter of the woman who would eventually become Ferenczi's wife, wrote: "This being alone that now
awaits me will be stronger than I; I feel almost as if everything will freeze
inside me... If I am alone, I will cease to exist." (Ibid)
· "Impaired Ability to
Trust": As Pope and Vetter note, trust is the linchpin of the therapeutic
relationship, a necessary condition for successful treatment:
People may walk into the offices of
complete strangers and, if the stranger is a therapist, begin talking about
thoughts, feelings, and impulses that they would reveal literally to no one
else. Every state, appreciating the exceptionally sensitive nature of the
"secrets" that patients may entrust to their therapists, has
established in their laws a formal therapist-patient privilege. The ethics
codes of all major mental health professions recognize the therapist's
responsibility to maintain confidentiality when patients trust the therapist to
the extent that they disclose personal information in therapy. Beyond investing
therapists with trust regarding their own privacy, confidentiality, and
"secrets," patients trust therapists to act in a way consistent with
patient well-fare and to avoid intentionally engaging in any behavior that not
only is unethical and prohibited by law but also places the patient at so
needless a risk for harm.
· "Guilt": Patients who
become sexually involved with their therapists "may become flooded with
persistent, irrational guilt. The guilt is irrational because it is in all
instances the therapist's responsibility to avoid sexually abusing a
patient." According to Pope and Vetter, "gender effects in this area
are significant. It is possible that gender may be associated with the ways in
which this irrational guilt develops and is sustained."
· "Increased Suicidal Risk":
Pope and Vetter cite studies demonstrating that patients who have engaged in
sexual contact with therapists have significantly increased risk of both
suicide attempts and completed suicides when compared with the general
population and other groups of patients. As early as 1983, research suggested
that about 14% of psychotherapy clients who were sexually involved with their
therapist made at least one attempt at suicide and that about one in every
hundred such clients committed suicide. Of those patients reporting harmful
effects, "only 17% recovered fully," by their own assessments (Pope,
1986, citing Bouhoutsos, J. Holroyd, J. Lerman, H. Forer, B. & Greenberg, M., 1983, pp. 185-96)
· "Role Reversal and Boundary
Confusion": Therapist/patient sexual relationships turn the therapeutic
process upside down:
[T]he sessions and the relationship are
no longer about the therapist being of use to the patient in service of the patient's
welfare but rather the patient being of use to the therapist in service of the
therapist's sexual gratification. The fundamental clinical, ethical, and legal
boundary that would prevent a therapist from turning patients into sources for
the therapist of sexual pleasure, experimentation, relief, variety, or control
Significantly, Pope and Vetter note
that the harm to a patient from therapist sexual misconduct can be long-term:
The negative effects of the therapist's
violation of boundaries and reversal of roles can generalize beyond the therapy
and persist long after the termination of the therapy and the sexual
relationship. The roles and boundaries that people use to define, mediate, and
protect the self may become not only useless for the patient but also
self-defeating and self-destructive.
· "Sexual Confusion":
According to Pope and Vetter, it is unsurprising that patients who have been
sexually involved with their therapists "wind up deeply confused about
their own sexuality." This can include "significant confusion over
[patients'] 'true' sexual orientation." But harmful effects can extend
beyond issues of sexual identity: According to one researcher, "female
patients who had been sexually involved with a prior therapist 'expressed a
cautiousness or even disgust with their sexual impulses and behavior as a
result of sexual involvement with their previous therapists.'"
Pope and Vetter contend that
therapist/patient sexual involvement "leaves some patients believing that
their only worth as human beings is to provide sexual gratification to others.
Some engage in sex with others on an almost obsessional
basis as re-enactment of the sexual relationship with the therapist."
Finally, they describe an array of other sexual dysfunctions that may result:
Especially when the patient is
experiencing feelings of emptiness and isolation, the specific sexual
activities previously experienced with the exploitive therapist--often
re-enacted in the midst of flashbacks--may represent an attempt to fill up the
self and break through the isolation. For still other patients, sex becomes
associated with feelings of irrational guilt. They may engage in demeaning,
degrading, joyless, painful, harmful, or dangerous sexual activities that seem
to express the conviction: "I am guilty, worthless, and deserve
this." Some may become so confused about sexuality that they begin
labeling a variety of feelings and impulses as "sexual." They may,
for example, say that they are sexually aroused whenever they are feeling intensely
angry, depressed, anxious, or afraid.
· "Suppressed Anger": It is
similarly unsurprising that patients who are victims of therapist sexual
misconduct often become angry. However, Pope and Vetter report that such
patients often suppress that anger, which may lead to greater harm yet:
[I]t may be difficult for [such
patients] to experience the anger directly. Some may feel only numbness in
situations that, according to them, would have previously evoked anger. Some
may turn the anger inward, becoming enraged at themselves. The anger directed
inward may lead to self-loathing, self-punishment, and self-destructive
behaviors including suicide.
An essential aspect of these results is
that they were provided by psychotherapists who have treated patients who had
been sexually involved with a previous therapist. And despite the frequency
both of therapist sexual misconduct and of denials that such conduct is harmful, these results suggest that most psychotherapists do
indeed recognize that such sexual contact does indeed cause harm.
and Ravart agree with other experts that
"[t]here is nothing new about sexual contact between health and mental
health professionals and their patients." (Pierre, A. & Ravart,
M., 2003) They cite the estimate of Abel, et al., that "half of all
psychiatrists will evaluate and/or treat at least one person who was sexually
exploited by a previous therapist or other health or helping
professional." (Ibid) Assalian and Ravart's work describes three categories of professionals
who commit sexual misconduct: the "denier," the "rationalizer," and the "repentant." (Ibid,
p. 91) Such professionals' susceptibility to treatment, they argue, varies by
category: They suggest use of instruments such as the Minnesota Multiphasic Personality Inventory (MMPI) to diagnose
"deniers" and prevent them from "gaming the system," in
effect. (Ibid) While they contend that "rationalizers
strongly tend to minimize their actions and avoid full responsibility for their
behaviour," they may also "show remorse and
victim empathy," and "are treatable." (Ibid) However, they find
that those in "the repentant group are the best treatment candidates. They
take full responsibility for their behaviour and
present themselves as sincerely regretful and remorseful, and are willing to
involve themselves in therapy to understand their behaviour
and change." (Ibid)
and Ravart further classify offending professionals
into "'affective' and 'predatory' types."
(Ibid) The conduct of "affective" types, they argue, tends to stem
from "unresolved emotional problems," such as mishandling of countertransference, depression, substance abuse, and
feelings like resentment or abandonment. (Ibid) "Predatory" types, on
the other hand, tend to present with "major personality disorder[s]"
that may include psychopathic, narcissistic, or borderline features, among
others. (Ibid) They contend that sexual misconduct by predatory offenders
"is part of a lifestyle of using and exploiting others to meet one's
needs," making them "more dangerous and at risk for
Within the affective and predatory
categories, Assalian and Ravart
have identified seven subtypes: incidental, interpersonal, narcissistic,
compensatory, exploitive, angry, and sadistic. They characterize each as
§ Incidental offenders "have
impulsively behaved in a sexually inappropriate manner and their [sic] is only
one known occurrence of the behaviour." (Ibid)
§ Interpersonal offenders "are
motivated to establish a close, intimate and long-lasting relationship. The
investment in the relationship seems genuine, without clear signs of
exploitation or abuse." (Ibid, p. 91-92)
§ Narcissistic offenders "may or
may not be seeking a close, emotional relationship," but "their behaviour more strongly suggests strong needs for
attachment, admiration, approval, validation, love and attention." (Ibid)
§ Compensatory offenders "are more
opportunistic and impulsive," and "basically offend to fulfill unmet
needs for physical closeness, affection and sexual relations." (Ibid)
§ Exploitive offenders "purposely
use their position of authority and power to achieve their behaviour
and fulfill their needs," including "control, power, [and]
§ Angry offenders "persistently
sexually harass and offend against women," "evidenc[ing] strong feelings of hostility, rage and resentment
toward women." (Ibid)
§ Sadistic offenders "enjoy using
their power and authority to control and dominate the victim," and get
"marked pleasure out of being cruel and provoking suffer[ing]." (Ibid)
Patient and Therapist Risk Factors
While boundary-crossing behavior may be
a sign of movement toward client abuse, boundary guidelines have been
established that are not validated and do not predict malpractice that could result
from a “slippery slope.” (Kroll, J., 2001) However, the following risk factors
have more to do with counselor vulnerability as risk factors, and thus can warn
and Strasburger argue that groups of risk factors
exist for both therapists and patients that make it more likely that therapist
sexual misconduct will occur. They divide therapist risk factors into nine
§ "Life crises": Although
relatively new practitioners can also be vulnerable to boundary violations, more
frequently, "midlife and late-life crises in therapists' development
appear repeatedly as precipitants of boundary problems with patients."
Norris, et al., cite "the effects of aging,
career disappointment or unfulfilled hopes, marital conflict or disaffection,
and similar common stress points" as typical triggers. (Norris, D. M., Gutheil, T. G., & Strasburger,
L. H., 2003)
"Retirement, job loss, job change – even promotion – or job transfer"
may serve as a trigger "that makes a therapist susceptible to crossing the
line with patients." Fiscal difficulties may likewise trigger non-sexual
boundary violations involving finances. (Ibid)
§ "Illness of the therapist":
Although they describe this context as "relatively underexplored,"
Norris, et al., report that "[t]herapists' illness appears to increase their vulnerability
to turning inappropriately to a patient for solace and support." Related
factors in this category include "death anxiety" and "fears of
§ "Loneliness and the impulse to
confide": The most common manifestation in this category is inappropriate
self-disclosure. Norris, et al., note that such impulses may arise when a
"therapist encounter[s] some life difficulty and seek[s] a 'sympathetic
ear,'" or when "the otherwise laudable desire to find common ground
with a patient... miscarry[ies]."
They report: "In part, therapists' uncertainty stems from the empirical
observation that self-disclosure is often the final boundary excursion before
sexual relations, even though self-disclosure does not in itself lead
inevitably to that outcome." They also warn that psychotherapist’s may
confuse countertransference with "honesty,"
leading to inappropriate self-disclosure. (Ibid)
§ "Idealization and the 'special
patient'": Some "early harbingers" of boundary violations
include mishandling of "countertransference
attitudes," including the tendency to regard a patient as somehow
"special." Norris, et al., cite as examples of characteristics that
lead therapists to idealize their patients "beauty, youth, intellect, fame
or status in the community, or therapeutic challenge." Such idealization
may be "highly threatening" to the therapist, "creating anxiety
that may distort clinical judgment." Psychotherapist’s
may even handle their treatment of such patients differently:
excessive or excessively long sessions, especially at the end of the day;
giving permission to run up a high unpaid balance; making special allowances
for the patient; and having nonemergency meetings outside the office.
Therapists seeking consultation on such cases often begin the request with[:] "I don't usually do this with my patients, but
in this case...." (Ibid)
§ "Pride, shame, and envy":
"[A] pitfall that is especially relevant to very senior therapists, who
are often sought out for consultation, is their inclination to brush aside the
need to seek consultation themselves." Norris, et al., report that one
therapist "resisted undergoing such a review on the grounds that he knew
the consultant would tell him the relationship with the patient was wrong and
should be terminated. They also argue that, "[i]n
its extreme form, this narcissistic difficulty supports the belief that one is
above the law and that the usual rules do not apply." (Ibid)
§ "Problems with limit[-]setting": Regardless of whether a patient
attempts to transgress appropriate boundaries, it is the job of the therapist
to ensure that professional limits are maintained. Norris, et al., report that
"[a] common barrier to appropriate limit[-]setting is the therapist's countertransference conflicts about aggression or sadism
when the prospect of the patient's expected distress, discomfort, or
frustration at being told 'no' is intolerable to the therapist." Such
problems often arise in the context of treating a patient who displays
"unrestrained rage." (Ibid)
§ "'Small town' issues": In
this context, the label "small town" may refer to any isolated or
insular environment: an actual community with a small population; certain types
of institutions (e.g., schools); or specific "subcultures" (Norris,
et al., cite as an example urban gay and lesbian "subcultures"). Such
small groups make it likely that therapist and patient will come into contact
with each other in social (or at least non-professional) settings. (Ibid)
§ "Denial": Norris, et al.,
report that "denial about early problematic situations, which can lead to
their evolving into full-fledged boundary disasters, is another common factor
in clinical misadventures." This is especially true, they argue,
"with more seasoned and experienced therapists." psychothreapists
who deny that the problem exists may engage in "[e]vasion,
externalization, and rationalization to help maintain the pretense that
boundary violations are not serious, not harmful, or even not occurring at
Norris, et al., classify
patient victims into six more formal categories. These include:
§ "Enmeshment": Some patients
"may seek dependency rather than autonomy" and look for a
"protective" therapist. During the treatment, the result can become
an "intensely enmeshed, symbiotic relatedness," which makes it
difficult or impossible for the patient to terminate either the sexual or the
therapeutic relationship, or to report the boundary violation(s) to appropriate
§ "Changing roles: from victim to
actor": Due to transference, a patient sometimes "imbues the
therapist with healing powers and intent." Such a patient is unlikely to
be assertive enough to challenge the psychotherapists prescribed course of
treatment, even when that "treatment" includes sexual contact. (Ibid)
This poses a particular problem for patients who seek therapy for earlier
traumatic experiences (e.g., child abuse, etc.). One expert describes such
patients' situation as "sitting duck syndrome." According to Norris,
et al., "boundary violations and even outright abuse by the therapist may
recapitulate [the patient's traumatic] early experience, including felt
helplessness to enact any escape or remedy." (Ibid)
§ "Shame and self-blame":
Despite the fact that therapist/patient sexual contact is by definition the
fault of the therapist, patients who are victims of such misconduct often blame
themselves. However, they blame themselves not only for "failure to know
better, failure to recognize abuse," "having made foolish
choices," etc., but for "causing the therapist to lose control or
cross the line," for "being 'too seductive,'" or for "bear[ing] full responsibility for the [therapist's] conduct."
§ "'True love'": Some
patients have few or no personal relationships in their lives, leading them to
focus too intensely on the therapeutic relationship. "The relationship
with the therapist may appear the only or the last chance for 'true love' in
the patient's sphere." (Ibid)
§ "Dependency": According to
Norris, et al., dependency provides at least part of the context for most
boundary violations. In some cases, what appears to be a boundary violation by
the patient may in fact mask other problems: They recount a patient who, after
entering a nursing home, began to call [her therapist] 'honey' and 'dear'"
rather than by his title and touched him repeatedly.
When the therapist told her of his concerns about her behavior, she began
"sobbing that she had lost her memory and could not recall his name."
Rule §681.42 of the Texas
Administrative Code, is a part of the ethics rules: It forbids licensees from
engaging in "sexual contact" with or "sexual exploitation"
of any client, any former client, any intern whom the LPC supervises, or any
student at an educational institution where the LPC provides professional or
educational services. It also prohibits "therapeutic deception" of a
client or former client. These terms are defined below in the ensuing
subsections. It also imposes reporting and other duties upon LPC’s; these are
also discussed below.
For purposes of professional liability
and the potential for disciplinary sanctions, the circumstances surrounding
such conduct are irrelevant. This is true regardless of whether the conduct
occurred outside the context of professional counseling sessions or off the
LPC's professional premises, or even if the conduct was "consensual."
Such conduct violates state law and the LPC Code of Ethics, and thus may
subject the LPC to potential professional, civil, and even criminal penalties.
While LPC’s' compliance with state
regulatory and ethical requirements may be motivated in part by the possibility
of lawsuits and criminal penalties, ethical issues permeate the practice and
process of counseling. Texas LPC’s must have a clear understanding both of
applicable rules and guidelines and of the extent to which personal experiences
and biases may influence how they their understand and
apply these requirements.
Under the Texas Occupations Code, §
503.001 defines what the "practice of professional counseling" is,
and what it is not, under Texas law. It lists both types (e.g., individual,
group, family, etc.) and areas (e.g., prevention, evaluation, treatment, etc.)
of therapeutic practice, and further defines relevant terms. Licensees should
refer to this section to determine whether particular professional actions or
activities constitute "counseling" for purposes of state law and
Subchapter G of Chapter 503 establishes
the qualifications for obtaining a license to practice as an LPC in Texas,
including minimum age, education, practical experience, and administrative
requirements. It also establishes procedures for review of license
applications, examinations and reexaminations, and dissemination of examination
results. Finally, it provides for issuance of temporary, provisional, and
regular licenses, and changes in licensure status (such as retirement or moving
to inactive status). Subchapter H provides for license expiration and renewal
and establishes mandatory continuing education requirements.
Subchapter I covers disciplinary
matters, including possible disciplinary actions, available sanctions, and
procedures. Subchapter J covers criminal penalties and enforcement, as well as
reporting requirements for alleged criminal offenses. Administrative penalties
and procedures are governed by Subchapter K. Procedures for consumer and
patient complaints against LPC’s are established by Subchapter F, including
filing, investigation, and disposition of complaints.
Other subchapters cover Board
administrative issues, including eligibility and qualifications for membership,
personnel matters, meetings, and other internal processes.
Rule §681.42 of the Texas
Administrative Code, which also appears in the LPC Code of Ethics, addresses
issues of sexual misconduct. Irons defines
professional sexual misconduct as “the overt or covert expression of erotic or
romantic thoughts, feelings, or gestures by the professional toward the
patient, that are sexual or may be reasonably construed by the patient as
sexual.” This definition is consistent with that found in Rule §681.42, which addresses three specific types of sexual misconduct: "sexual
contact"; "sexual exploitation"; and "therapeutic
Under §681.42, "sexual
contact" falls into four categories: The first three are "deviate
sexual intercourse," "sexual contact," and "sexual
intercourse as defined by the Texas Penal Code, §21.01." The fourth
category comprises "requests by a licensee for conduct" that falls
into one of the other three categories.
Texas Penal Code §21.01(1) defines
"deviate sexual intercourse" as “any contact between any part of the
genitals of one person and the mouth or anus of another person,” or “the
penetration of the genitals or the anus of another person with an object.”
The Penal Code defines "sexual
contact" as “any touching of the anus, breast, or any part of the genitals
of another person with intent to arouse or gratify the sexual desire of any
person.” The Code also defines sexual contact with a child as:
The following acts, if committed with
the intent to arouse or gratify the sexual desire of any person:
touching by a person, including touching through clothing, with the anus,
breast, or any part of the genitals of a child; or
touching of any part of the body of a child, including touching through
clothing, with the anus, breast, or any part of the genitals of a person.
Finally, "sexual intercourse"
is defined under the Texas Penal Code as “any penetration of the female sex
organ by the male sex organ.”]
§681.42 defines "sexual
exploitation" as “a pattern, practice, or scheme of conduct, which may
include sexual contact, that can reasonably be construed as being for the
purposes of sexual arousal or gratification or sexual abuse of any
person." Sexual exploitation thus includes much more than actual sexual
contact. LPC’s need to be aware that certain behaviors, comments, or gestures,
however innocently intended, may be misinterpreted; particularly by patients
who are unusually vulnerable with regard to such issues.
LPC’s should also note the law's
specific definitions of what may constitute sexual exploitation where the
purpose is "sexual arousal, gratification or sexual abuse of any
person." Examples include:
harassment, sexual solicitation, physical advances, or verbal or nonverbal
conduct that is sexual in nature, and
(A) is offensive or creates a hostile
environment, and the licensee knows or is told this; or
(B) is sufficiently severe or intense
to abusive to a reasonable person in the context;
behavior, gestures, or expressions which may reasonably be interpreted as
inappropriately seductive or sexual;
sexual comments about or to a person, including making sexual comments about a
sexually demeaning comments about an individual's sexual orientation;
comments about potential sexual performance except when the comment is
pertinent to the issue of sexual function or dysfunction in counseling;
details of sexual history or sexual likes and dislikes when not necessary for
counseling of the individual;
conversation regarding the sexual problems, preferences, or fantasies of the
(8) kissing or
(9) making a
request to date;
(10) any other
deliberate or repeated comments, gestures, or physical acts not constituting
sexual intimacies but of a sexual nature;
bodily exposure of genitals, anus or breasts;
another to masturbate in the presence of the licensee; or
by the licensee when another is present.
The statute makes clear that
"[t]he term ['sexual exploitation'] does not include obtaining information
about a client’s sexual history within standard accepted practice while
treating a sexual or marital dysfunction.” However, LPC’s must ensure that
attempts to obtain such information are limited strictly to therapeutic
purposes. Making such inquiries when they are not necessary to the therapeutic
process may constitute sexual exploitation. Examples of such inquiries may
include asking the patient for details of her sexual history, asking about
sexual likes and dislikes, or making comments about potential sexual
performance, when such questions or comments are not pertinent to the patient's
course of treatment.
LPC’s should also be aware that they
may need to take special precautions in the area of self-disclosure.
Self-disclosure is a valid therapeutic technique, used in various forms by
many, if not most, therapists. However, clients who file complaints or lawsuits
against LPC’s frequently cite inappropriate or excessive self-disclosure as one
of the bases of the complaint. According to Caudill:
Therapists must be conscious that
excessive self-disclosure can fuel a patient's perception that he or she is
special to the therapist, or that there is a potential for a relationship outside
the therapeutic one. The problem becomes more acute when the patient is
inquiring as to the therapist's personal life and/or the therapists
relationships with his or her family and/or lovers. At that point, the
therapist should be inquiring as to what purpose this information would serve
for the patient to know. (Caudill, Jr., O. B., 2000)
The LPC should only engage in
self-disclosure when it is clearly for the client’s benefit. The client’s
condition weighs upon this decision. (Ibid)
A third category of sexual misconduct
is "therapeutic deception." Subchapter 681.42(d) defines therapeutic
deception as a representation by a licensee that sexual contact with, or sexual
exploitation by, the licensee is consistent with, or a part of, a client’s or
former client’s counseling." In other words, if an LPC convinces a patient
to engage in sexual contact by telling the patient that such contact is part of
her therapy, the LPC commits sexual exploitation.
Under §681.42, if an LPC has reasonable
cause to suspect that a client has been victimized by another mental health
services provider, or if a client alleges such victimization, the LPC is
required to report the suspicion or allegation. Such reports must be made
within 30 days of the date the LPC becomes aware of the allegations or conduct.
Before fling the report, the LPC must inform the alleged victim of this to
report, and must determine whether the victim wishes to remain anonymous. If
so, the LPC must withhold the alleged victim's identity from the report; if
not, she must identify the victim. The LPC must also identify his or herself in
the report (as the person filing it), and must clearly articulate his or her
suspicion that sexual exploitation, sexual contact, or therapeutic deception
has occurred; and must identify the LPC who has allegedly engaged in the
Texas LPC’s must file such reports of
alleged sexual misconduct with the prosecuting attorney in the county where the
violation allegedly occurred. If the alleged misconduct involves an LPC, the
report must also be filed with the Texas State Board of Examiners of
Professional Counselors and any other state agency that licenses the provider.
LPC’s who engage in sexual conduct with
clients expose themselves to specific potential legal consequences. These fall into three major categories: licensure actions,
civil litigation, and criminal charges.
Professional Discipline and Enforcement
With regard to licensure in Texas, Title
22, PART 30, Chapter 681, Subchapter M of the Texas Administrative Code defines
levels and severity of sanctions and provides guidelines for enforcement. There
are five levels of sanctions:
· Level one: revocation of license;
· Level two: "extended suspension
· Level three: "moderate
suspension of license";
· Level four: "probated suspension
of license"; and
· Level five: a reprimand.
All formal sanctions, including
revocation, suspension, and reprimand, remain on an LPC's professional record
for seven years. If an LPC's license is revoked, the state will take the
practitioner's license away from him or her. The LPC will also be ordered to
cease his or her professional practice.
Suspensions vary in length and degree.
As a general matter, a suspension operates like a revocation, but the LPC's
license to practice is removed for a specific period of time, during which the
licensee may not engage in practice. (An "extended suspension" is
precisely that: a suspension for a period longer than the norm.)
The practitioner often will be required
to undergo education and training and/or therapy during the term of the
suspension. Under a "probated suspension," on the other hand, an LPC
may continue to practice, if he or she meets specific requirements during the
The LPC may be required to engage in
additional education and training, undergo therapy him or herself, and/or
report to a supervising practitioner. Another variant is "probated
suspension with administrative penalty": In addition to meeting the
requirements of the probated suspension, the LPC will be required to pay a
Finally, if an LPC receives a
reprimand, an official letter of reprimand is sent to the practitioner, and the
existence of the reprimand appears on his or her record. However, reprimanded
LPC’s may still practice.
Within the disciplinary process,
"voluntary" options also exist. Under certain circumstances, an LPC
may be permitted to choose one of these options rather than have a particular
sanction imposed. For example, rather than have one's license revoked, a
practitioner may choose to surrender his or her license. With regard to lesser
sanctions, under certain circumstances, an LPC may be offered the opportunity
to enter into a "settlement agreement," under which the Board and the
LPC avoid the need for a formal hearing by entering into an agreement that will
permit the practitioner to retain his or her license by complying with certain
conditions (e.g., education, supervision, restricted practice, etc.). There are
generally two varieties of settlement agreements: 1) a "settlement
agreement with stipulations," which is the basic form; and 2) a
"settlement agreement with administrative penalty," which requires
the LPC to pay a fine in addition to complying with the stipulated terms of the
agreement. Subchapter k also provides for administrative penalties.
The Web site of the Texas Board of
Examiners of Professional Counselors lists the name and license number of each
LPC who has been subject to any form of professional discipline within the past
seven years, as well as the type of discipline imposed. (Texas Department of
State Health Services, 2007b)
Over the history of
counseling knowledge, sophistication and tools have converged for effective,
humane, clinical practice and for providing services to a diverse population.
Know the principles upon which the specific ethical guidelines and laws are
based, and you will work with more relevance and confidence. Remember the
resources available for resolving ethical and legal concerns for a less
stressful and better-supported practice. You are part of a profession filled
with great minds discovering new answers.
Appendix: Texas Administrative Code, Title 22, Part
30, Chapter 681: RULE §681.42 Sexual Misconduct:
(a) For the purpose of this
section the following terms shall have the following meanings.
health services means assessment, diagnosis, treatment, or counseling in a
professional relationship to assist an individual or group in:
alleviating mental or emotional illness, symptoms,
conditions, or disorders, including alcohol or drug addiction;
understanding conscious or subconscious motivations;
resolving emotional, attitudinal, or relationship
modifying feelings, attitudes, or behaviors that
interfere with effective emotional, social, or intellectual functioning.
health services provider means a licensee or any other licensed or unlicensed
individual who performs or purports to perform professional counseling or
mental health services, including a licensed social worker, a chemical
dependency counselor, a licensed marriage and family therapist, a physician, a
psychologist, or a member of the clergy.
deviate sexual intercourse as defined by the Texas
Penal Code, §21.01;
sexual contact as defined by the Texas Penal Code,
sexual intercourse as defined by the Texas Penal Code,
requests by a licensee for conduct described by
subparagraph (A), (B), or (C) of this paragraph.
exploitation means a pattern, practice, or scheme of conduct, which may include
sexual contact, that can reasonably be construed as
being for the purposes of sexual arousal or gratification or sexual abuse of
any person. The term does not include obtaining information about a client's
sexual history within standard accepted practice while treating a sexual or
deception means a representation by a licensee that sexual contact with, or
sexual exploitation by, the licensee is consistent with, or a part of, a
client's or former client's counseling.
(b) A licensee shall not
engage in sexual contact with a person who is:
(1) a client or former client;
(2) an LPC intern supervised by the licensee; or
(3) a student at an educational institution at which the
licensee provides professional or educational services.
(c) A licensee shall not
engage in sexual exploitation of a person who is:
(1) a client or former client;
(2) an LPC intern supervised by the licensee; or
(3) a student at an educational institution at which the
licensee provides professional or educational services.
(d) A licensee shall not
practice therapeutic deception of a person who is a client or former client.
(e) It is not a defense
under subsections (b) - (d) of this section if the sexual contact, sexual
exploitation, or therapeutic deception with the person occurred:
(1) with the consent of the client;
(2) outside the professional counseling sessions of the client;
(3) off the
premises regularly used by the licensee for the professional counseling
sessions of the client.
(f) The following may
constitute sexual exploitation if done for the purpose of sexual arousal or
gratification or sexual abuse of any person:
(1) sexual harassment, sexual solicitation, physical advances,
or verbal or nonverbal conduct that is sexual in nature, and:
is offensive or creates a hostile environment, and the licensee knows or is
told this; or
is sufficiently severe or intense to be abusive to a reasonable person in the
(2) any behavior, gestures, or expressions which may reasonably
be interpreted as inappropriately seductive or sexual;
(3) inappropriate sexual comments about or to a person,
including making sexual comments about a person's body;
(4) making sexually demeaning comments about an individual's
(5) making comments about potential sexual performance except
when the comment is pertinent to the issue of sexual function or dysfunction in
(6) requesting details of sexual history or sexual likes and
dislikes when not necessary for counseling of the individual;
(7) initiating conversation regarding the sexual problems,
preferences, or fantasies of the licensee;
(8) kissing or fondling;
(9) making a request to date;
(10) any other deliberate or repeated comments, gestures, or
physical acts not constituting sexual intimacies but of a sexual nature;
(11) any bodily exposure of genitals, anus or breasts;
(12) encouraging another to masturbate in the presence of the
(13) masturbation by the licensee when another is present.
(g) Examples of sexual
contact are those activities and behaviors described in the Texas Penal Code,
(h) A licensee shall report
sexual misconduct as follows.
(1) If a
licensee has reasonable cause to suspect that a client has been the victim of
sexual exploitation, sexual contact, or therapeutic deception by another
licensee or a mental health services provider, or if a client alleges sexual
exploitation, sexual contact, or therapeutic deception by another licensee or a
mental health services provider, the licensee shall report the alleged conduct
not later than the 30th day after the date the licensee became aware of the
conduct or the allegations to:
the prosecuting attorney in the county in which the
alleged sexual exploitation, sexual contact or therapeutic deception occurred;
the board if the conduct involves a licensee and any
other state licensing agency which licenses the mental health services
making a report under this subsection, the reporter shall inform the alleged
victim of the reporter's duty to report and shall determine if the alleged
victim wants to remain anonymous.
(3) A report
under this subsection need contain only the information needed to:
identify the reporter;
identify the alleged victim, unless the alleged victim
has requested anonymity;
express suspicion that sexual exploitation, sexual
contact, or therapeutic deception occurred; and
(D) provide the
name of the alleged perpetrator.
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End of text. Now take the course quiz.