Sexual Exploitation by Therapist: The Legal Options

By Linda M. Jorgenson and Stanley J. Spero

It was more than 50 years ago that the malpractice case of Zipkin v. Freeman transformed the rubric of acceptable psychiatrist-patient relationships. The metamorphic 1968 case was the first successful malpractice case in the United States to hold a psychiatrist liable for damages resulting from engaging in sexual relations with a patient.

In Zipkin v. Freeman (1968), Mrs. Zipkin sought therapy from a psychiatrist, Dr. Freeman, due to headaches and other physical complications. While the physical symptoms improved after a few months of therapy, Dr. Freeman insisted that she continue treatment. While undergoing Dr. Freeman’s treatment, Mrs. Zipkin became very dependent on him. He persuaded Mrs. Zipkin to move away from her husband and move into quarters she rented from Dr. Freeman. She worked on his farm, performing manual labor. She stole suits from her husband for Dr. Freeman to wear. She accompanied Dr. Freeman on social outings, nude swimming parties, and overnight trips. During the course of therapy, Mrs. Zipkin was drawn into a sexual relationship with Dr. Freeman and trusted him completely. She came to believe she was in love with him; consequently, when Dr. Freeman told her to divorce her husband, she did.

The court found that the conduct of Dr. Freeman constituted malpractice because of his improper handling of the patient’s transference. In its ruling, the court did not distinguish between Dr. Freeman’s sexual contact with Mrs. Zipkin and his other professional boundary violations. The court stated, “…a psychiatrist should no more take an overnight trip with a patient than shoot her,” adding, “…the damage would have been done if there had been ballroom dancing instead of sexual relations.”

Zipkin v. Freeman was monumental in setting the stage for increased public awareness of sexual exploitation of patients by therapists based on negligence/malpractice. However, the process of bringing this to the courtroom was languid. It was not until 1975 that the next major case, Roy v. Hartogs, was found to be a negligent breach of fiduciary duty.

In Roy v. Hartogs, Dr. Hartogs engaged in sexual relations with his patient, Julie Roy. Dr. Hartogs instructed Ms. Roy to have sex with him as part of her treatment. As a result of the “treatment,” Ms. Roy’s mental condition deteriorated to the point that hospitalization was required. The court found that Ms. Roy had stated a cause of action against Dr. Hartogs by asserting “coercion by a person in a position of overwhelming influence and trust,” noting that “there is a public policy to protect a patient from the deliberate and malicious abuse of power and abuse of trust by a psychiatrist when that patient entrusts to him, her body and mind in the hope that he will use his best efforts to effect a cure.” Following this ruling, negligent breach of fiduciary duty by a therapist has been applied in many cases.

This chapter analyzes why sexual exploitation of clients by therapists is prohibited and how fiduciary theory serves as the rationale behind the regulation. Further exploration of the law will reveal the options available to clients/patients who have been sexually exploited by their therapists, including criminal complaints, board complaints, ethics complaints and civil causes of action (see Table 1). Lastly, challenges to statutes of limitations, insurance coverage, and gag orders will be addressed.

Fiduciary/Power Differential

What is a fiduciary? A fiduciary is a professional who accepts the trust and confidence of another person and agrees to act in that person’s best interest. A fiduciary relationship can exist when a client places his or her trust and confidence in a professional and the professional accepts that trust and confidence (Jorgenson & Randles, 1991). The professional must act in the client’s best interest and is held to a higher standard of care than a stranger because of the increased potential for undue influence. The power differential that exists in the fiduciary relationship puts the client at risk of exploitation by the fiduciary. In addition to this power differential is the potential vulnerability of the client. The vulnerability of the client is divided into four parts.

  1. Presenting Problem. The patient needs help solving a problem and relies on the professional. The emotional struggle of the patient may lead to the feelings of helplessness and dependence. The therapist is viewed as a person of authority, knowledge, and wisdom.
  2. One-Sided Revelations. In therapy, patients reveal confidential, personal information to the therapist. These one-sided revelations may increase the vulnerability experienced by the patient. The patient must have a level of trust in the professional in order to make these revelations.
  3. Idealization. Idealization of the therapist by the patient increases vulnerability. This phenomenon is called transference: The courts refer to it as dependence. This idealization can alter or diminish the patient’s decision-making capacities.
  4. Stress of the Process. The stress of the therapeutic process increases the patient’s vulnerability. Because the patient spends time, emotional energy, and money in therapy, there may be reluctance to abandon this investment by starting a new therapy with a different therapist.

With a relationship of power inequity and patient vulnerability, the potential exists for undue influence and abuse of the patient’s trust. Here this potential for undue influence and abuse of trust (Jorgenson & Randles 1991), is the basis for legal and ethical prohibitions against sexual involvement of therapists with their patients. The courts, licensing bodies, professional organizations, and state legislatures use this rationale to impose sanctions or otherwise limit or proscribe certain behaviors by therapists. This provides a variety of options for action to victims of sexual misconduct by professionals. (Jorgenson & Schoener 1994).

In 1973, the American Psychiatric Association adopted a rule prohibiting sexual contact between psychiatrists and patients. The prohibition was subsequently expanded to include former patients in perpetuity, adopting the approach of “once a patient, always a patient.” (American Psychiatric Association, 1992) The American Psychological Association and the National Association of Social Workers prohibit sexual contact between practitioners and patients. Additionally, these associations place constraints regarding sexual contact with former patients. (American Psychological Association, 1992; Appelbaum & Jorgenson, 1991; National Association of Social Workers,1997)

While the implementation of rules and regulations regarding sexual relations between therapists and patients may serve to protect patients, it is important to examine the limitations and potential resolutions that exist.

Professional Organizations

Ethics codes of professional organizations are a means of self-regulation for the professions. Only professionals who choose to join the professional association are subject to the ethical code. The professional association may prescribe any discipline for misconduct by the professional (see Table 2). In general, hearings before ethics committees are confidential and intended only to carry out the self-regulatory function.

A victim of sexual misconduct may have limited rights in private disciplinary proceedings. If the patient is required to testify at a hearing, the professional association is under no obligation to provide legal counsel. The patient may hire a private attorney at his or her own expense.

Ethics committees require that complaints be proven by a preponderance of the evidence, meaning that it is more likely than not that a particular act occurred. Ethics committees are not bound by set standards of punishment or restitution. Violation of ethical rules can result in expulsion from the professional organization; however, in most states the professional may continue practicing psychotherapy.

Licensing Boards

Licensed mental health professionals are subject to disciplinary actions by professional licensing boards. (Jorgenson, Randles, & Strasburger, 1991) There are licensing boards for psychiatrists, psychologists and social workers in all 50 states. Such boards retain the power to sanction offending license holders through censure, reprimand, license revocation, probation, and/or suspension. Boards can order licensees to submit to rehabilitation or professional supervision as conditions to retaining or regaining a license. (Jorgenson, 1995c; Schoener, 1995)

Patients can file complaints of sexual misconduct against a licensed therapist with the applicable board. If the board initiates proceedings against the therapist, a prosecuting attorney hired by the licensing board represents the public’s interest. In many states, the patient’s name will not be publicly disclosed. The board must establish the allegations of the complaint by a preponderance of evidence.

Criminal Options

In a criminal action under the statute prescribing sexual misconduct by a mental health professional, the state is the prosecutor. The state brings the action through its district attorney or state prosecutor. The trial is public with both the therapist and the patient exposed to public scrutiny. Criminal trials require proof of the offense beyond a reasonable doubt, a much higher standard than in civil actions. This stipulates that a reasonable person reach no other conclusion than that of guilt. Punishment for conviction in a criminal action is typically imprisonment and often can include a fine as well. (Jorgenson, Randles & Strasburger, 1991; Strasburger, Jorgenson, & Randles, 1991)

Civil Actions/Negligence

Malpractice is the most common type of lawsuit filed by victims of sexual exploitation by therapists. In this situation, the patient becomes a client seeking monetary damages and is represented by a private attorney who brings the action for the patient. In most states, this is a public action where the standard of proof is the preponderance of evidence (see Table 3). For the client to win in a malpractice case the client must prove four elements: (1) duty of care, (2) breach of duty, (3) harm to the patient, and (4) negligence caused the harm.

  1. Duty of Care. If there is a therapist-patient relationship, the therapist owes the patient a duty to act with reasonable care. The duty is determined by what the average qualified therapist practicing in the same specialty would do.
  2. Breach of Duty. The therapist’s behavior is determined by using the reasonable care standard. This is usually established at trial through the use of expert testimony. In all cases, sexual misconduct by a therapist with a patient is a breach of the standard of care. The standard of care may be breached in other ways. Some breaches include: (a) breaching confidentiality; (b) isolating the patient to make the patient unduly dependent on the therapist; (c) reversing roles; (d) misusing drugs in treatment; (e) excessive self-disclosure; (f) non-treatment related emails, texts, and excessive phone calls with patient; (g) seeing the patient outside of the office in social settings and business relationships; (h) having the patient perform personal tasks for the therapist; (i) failure to appropriately terminate therapy. (Jorgenson, 1995d; Jorgenson, Hirsh & Wahl, 1997; Wohlberg, Rosen, & Jorgenson,1997; Jorgenson, Notman, Benedek & Malmquist, 2011)
  3. Harm to the Patient. When the standard of care is breached, the patient must then show harm. The patient may experience depression, anxiety disorder, inability to trust, sleepless nights, post-traumatic stress disorder, and other harms. Additionally, the patient may have been hospitalized and/or lost time from work. The economic harm may include lost wages, hospitalization costs, additional therapy costs, impairment to future earning capacity, and the money paid to the abusing therapist.
  4. Negligence Caused the Harm. The patient must show that the negligence of the therapist caused the harm. This is usually done through the patient’s testimony and the testimony of an expert witness who will have conducted an assessment and evaluation of the patient before trial. This testimony will demonstrate that the negligence caused the harm.

Civil Litigation and the Patient

Attorneys representing clients who are considering malpractice litigation should make clear what is going to transpire as a result of taking this action. As a client, understanding the process and its ramifications is necessary to be able to give true informed consent. This requires more than just giving a client the explanation of the court proceedings and the financial arrangements between the client and attorney but also includes the eight elements of a malpractice claim identified in Table 4.

In most states, when a malpractice lawsuit is filed the client’s name and details of the complaint are made a matter of public record, i.e., there is no “Jane Doe.” The client should expect to be “deposed,” (asked questions and give evidence that is written down and sworn to), by the opposing party and to be questioned by expert witnesses from both sides. Additionally, other fact witnesses will be deposed and may testify. The witness list may extend to family members and friends. Details of the client’s psychiatric and medical history and personal life will become public, potentially including all notes. It is not uncommon for therapists to deny the abuse: This contributes to a lengthy process where lawsuits may take years to litigate. In this type of a situation, the client may feel abused by the legal process itself. Clarifying the legal process at the outset will lead to a better-informed client as well as to a less threatening and uncomfortable experience for the client.

There are three additional issues of concern in a malpractice lawsuit. One is the statute of limitations. How long does the client have to bring up this action? It depends on the state where the action is filed. Statutes of limitations may be as short as one year or may have a discovery rule that does not start running until the client initially becomes aware that he/she has been harmed by the therapist. (Jorgenson & Randles, 1991) The second challenge is the availability of insurance coverage for sexual misconduct. (Bisbing, Jorgenson, & Randles, 1995) Many insurance companies cap or exclude coverage for damage based on sexual misconduct. This means that there is limited or no money to pay for malpractice awards based on sexual misconduct. A few states have legislation to prevent this outcome. For example, Colorado passed a statute declaring that exclusions or limits on liability in professional malpractice policies for non-sexual misconduct, when sexual misconduct is alleged, are against public policy and therefore unenforceable and void. (Colorado title 10 insurance C.R>S.10-4-110.3,1997; Jorgenson, 1999).

A third challenge poses the greatest emotional threat to patients/clients by attempting to silence them. Commonly lawyers representing a therapist will try to include a non-disclosure agreement in the settlement. This is often referred to as a “gag” order. Not only is this meant to silence patients, it takes away many of their personal rights and may re-introduce feelings of abuse or diminished power. It is inadvisable to sign such an agreement. The only instance when a gag order should be signed is when it serves as a non-disclosure of the actual dollar amount of the settlement.


There are a variety of options available to the client/patient who has been sexually exploited by his/her therapist. Whether it is an ethics complaint, a board complaint, a civil action or a criminal action, the decision must be up to the client. Each course of action caries specific risks and potential benefits. Knowledge of the options available and the potential risks is key if the client is to be fully informed to give consent.

About the Authors
The Law Offices of SJ Spero & Associates (formerly Spero & Jorgenson, P.C.) was founded in 1983 to protect the rights of victims of professional misconduct and abuse. The practice is devoted exclusively to this highly specialized area of law. For over three decades Linda M. Jorgenson and Stanley J. Spero have helped hundreds of victims obtain the closure that comes with holding their abusers accountable. Based in Boston, they handle professional misconduct cases across the country. They work with local counsel and provide consultative services to protect the rights of victims of professional abuse. Both have been quoted as experts in this area in various news articles and media. They have been published extensively in this area of law; their articles and significant cases have appeared in national publications such as Psychiatric Times, Lawyer’s Weekly and numerous professional journals and law reviews. For more information please contact: Speroandjorgenson@msn.com

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