SEX IS NOT PART OF COUNSELING

By Shelley Stockwell-Nicholas, PhD

President of the International Hypnosis Federation

These guidelines address difficult legal dilemmas and are not intended for every
potential situation, nor is it a substitute for independent legal advice or
consultation. Use this article as a guide and be aware that laws, regulations and
technical standards change over time, so verify and update any references or
information.

International Hypnosis Federation members include professional counselors, with

varied training in specific modalities, who may be certified, registered, or
licensed. Our licensed members include MFT’s, Social Workers, Psychologists,
Psychological Assistants, Interns, Psychiatrists, Medical Doctors, Acupuncturists,
Chiropractors, Nurses and Drug Counselors from many states and countries. Each
follows the laws and rules of their affiliations. Alternative and Complementary
helpers have specific education, training, experience, in their chosen modality.

Even certified Sex Therapist’s guidelines says; “Sex therapy educates and guides
patients towards discovery and resolution of their sexual concerns. Sex therapy
sessions never involve sexual contact, or any other kind of sexual activity or
nudity in front of the therapist. Certified Sex Therapists are expected and bound
to conduct themselves in a professional and ethical manner with their clients, at
all times.”

Let this be stated clearly: each International Hypnosis Federation member agrees
to strict rules against client/counselor sex. Our code of ethics emphatically
states, “Observe professional, legal and ethical standards of conscience,
affiliations and society.” Professional counseling, therapy, chiropracty,
acupuncture, coaching, ministerial advising, medical care, massage therapy or
hypnotherapy does not includes sex. The practitioner does not employ verbal sexual
advances, sexual contact or sexual behavior during the session. Sexual contact
between a therapist or hypnotherapist exploits and harms a client. All therapists,
hypnotists and hypnotherapists are trained and educated to know that this kind of
behavior is inappropriate and can result in criminal charges.

“He started to tell me his troubles and the burden was heavy. Then he made me
feel like I had to comfort him, to have sex with him. I was the one who needed
help. I have more problems now than when I started.”

By the nature of all helping professions,
common for a client to admire a helper or
counselor who accepts or encourages these
tells a client that sexual involvement is
advantage.
helpers are trusted and respected. It is
feel attracted to them. However, a
normal feelings in a sexual way, or
part of therapy, is taking illegal

As one woman reported:

“I foolishly put my trust in him. I assumed he was the professional. He told me
that a body massage, touching me in intimate areas, was a legitimate part of my
session and that it helped release deep emotions. When I felt uneasy about it. I
told myself that it was my hang-up getting in the way of therapy. And I felt
intimidated or threatened him.”

It is unethical, unprofessional, and illegal. Those who endure such abusive

behavior from a counselor can suffer.

“She told me I didn’t have to make payments, that I would just do work on her
house. Then it turned into sex. I feel powerless because she still helps me.”
SEXUAL EXPLOITATION DEFINED
Counseling is meant to be a guided learning experience where a client is helped to
find their own answers and feel better about themselves and their lives. A back
pat or hug during a session is not improper conduct.

Sexual exploitation feels inappropriate and uncomfortable. A client is right to

confront the counselor/therapist and ask them to stop it if they have these
feelings.

According to many state laws:

• Any kind of sexual contact, asking for sexual contact, or sexual misconduct by a
therapist or with a patient/client is illegal, as well as unethical.
• “Sexual contact” means the touching of an intimate part (sexual organ, anus,
buttocks, groin, or breast) of another person, including sexual intercourse.
• “Touching,” means physical contact with another person, either through the
person’s clothes or directly with the person’s skin (Business and Professions Code
Section 728).
• Sexual contact can include sexual intercourse, fondling, and any other kind of
sexual touching.
• Sexual misconduct includes nudity, kissing, spanking, and sexual suggestions or
innuendos. This kind of sexual behavior by a therapist with a patient is sexual
exploitation. If you believe you have been exploited in ways listed above file a
complaint with the police.

CLIENT/PATIENT BILL OF RIGHTS

The following is based of the California Department of Consumer Affairs Booklet
entitled "Professional Therapy Never Includes Sex." It is made available to
counselors for clients who report such inappropriate sexual contact.
You have the right to:
• Receive respectful treatment that will be helpful to you.
• A safe environment, free from sexual, physical and emotional abuse.
• Ask questions about your therapy.
• Refuse to answer question or disclose any information you choose not to reveal.
• Request that the counselor inform you of your progress.
• Know the limits of confidentiality and the circumstances when a counselor is
legally required to disclose your information to others.
• Know if there are supervisors, consultants, students or others with whom your
counselor will discuss your case.
• Refuse a particular type of program or end your care without obligation or
harassment.
• Refuse electronic recording, and may request it if you wish.
• Request and (in most cases) receive a summary of your file that may include
diagnosis or assessment, your progress, and type of treatment or plan of help
offered.
• Receive a second opinion at any time about your counselor’s methods or
conclusions.
• Request the transfer of a copy of your file to any counselor, therapist or
agency you choose.

• Request and receive full information about a professional counselor’s

capabilities including certification or licensure of Licensed/Registered
professionals (MFT’s, Social Workers, Psychologists, Psychological Assistants and
Interns, Psychiatrists, Medical Doctors, Acupuncturists, Chiropractors, Nurses and
Some Drug Counselors) belong to specific state board. Alternative and
Complementary helpers are non-licensed usually certified Professionals who are
required by California law to have you read and sign a disclosure form to let you
know about their education, training, experience, professional association
membership, specialization at your first visit.

• Have written information about fees, method of payment, any insurance

reimbursement, estimated number of sessions, substitutions (in cases of vacation
and emergencies), and cancellation policies before beginning a program.

ACTIONS AVAILABLE IF SEXUALLY EXPLOITED

You can deal with your situation in several different ways. Decide what is best
for you. Here are your options:

TALK TO SOMEONE? You may want to explore what you’re going through to feel better
and get information on whether what happened was unethical and/or illegal. An
ethical hypnotherapist, counselor or support group can help give you carefully
decide what you want do. The International hypnosis Federation {(310) 541-4844}
may refer you to a Hypnotherapist who specializes in helping you. Or ask someone
you know who has been in hypnotherapy or counseling, feels good about the
experience, and has changed in positive ways.

For a helpful licensed therapist call the appropriate licensing board and
professional association (listed below) and ask if any disciplinary actions have
been filed against them. Also check your County Superior Court to see if there is
a record of any malpractice lawsuits filed against them. A local sexual assault
center or crisis intervention service (in the telephone book yellow pages) may
refer a self-help support group.

Before selecting a helper you may want to interview several to find one who makes
you comfortable. If you are unsure after one session, consider a different helper.
Do not feel pressured to stay with one counselor.

MOVE ON? Is it best for you to move past this experience as quickly as possible,
get on with your life and just let it go?

REPORT THE ABUSER? Do you hope to prevent the person from hurting others by
revealing what happened. Do you want monetary compensation for damages suffered to
help pay for future help? If so you may report unethical and illegal behavior in
several ways. A statute of limitations on the time that passes for filing may be
the case for some reports. Feelings of confusion, protectiveness, shame, or guilt
are especially common in this type of situation. After all, a helper is an
important person in your life. Get as much information as possible about your
options and keep in mind that you are in charge of your decision and can choose
what you want to do. Consider your options:

1. File a Civil Lawsuit. Civil lawsuits seek money for damages or injuries. For
sexual exploitation, you may sue for injuries suffered and the cost of future
therapy sessions. Consult an attorney as soon as possible, since there are
specific time limits for filing civil lawsuits. California law may allow you to
file a lawsuit against the licensed therapist or their employer (if you believe
the employer knew or should have known about the behavior.)
You may also sue a local or state public mental health agency for which the
licensed therapist works, but you must first file a complaint with the agency
within six months of the sexual exploitation. (In some cases, this six-month
period may be extended to one year.)

Most civil lawsuits must be filed within one year after sexual exploitation. By
the time you arrive at trial, you will have gone through a discovery process and
given your deposition. This experience will not prepare you, for what awaits at
trial. In a deposition, there are only a few people in the room, and you are
sitting across the table from the questioner. At trial, you will be sitting in a
witness box before many people and the person you are charging will be either in
the witness box or in the gallery. This effect can be intimidating.

What Exactly is a Complaint? A complaint is a list of the events a claimant

asserts against a counselor saying that what they did was “negligent.” The
statements in the complaint are allegations (statements of misconduct or wrong
doing) that the claimant will have to prove in a court of law. The complaint sets
out in “counts” or the different ways someone is said to be legally negligent. The
claimant needs to prove the allegations in one of the counts to recover damages.
Statements in a complaint are only allegations, not facts, so only occasionally
are penalties assessed against claimants who make false allegations.

What is the Discovery Process?

After you a summons and complaint each side is permitted to ask the other side
questions hoping to obtain answers that will help either prove or defend the case,
depending on who is asking the question. After all discovery is completed, the
case is ready for trial. Discovery questions come in the form of:

•Interrogatories. Interrogatories are written questions that are filed with the
court. The attorney will generally ask you questions and then respond in writing
in a fashion that is legally prudent.

•Production of Documents. In this form of discovery, the other side will ask that
you produce all documents related to the events at issue in the case. The attorney
will review the questions and produce only the documents that the other side has a
right to see. The other side will ask for but will not be allowed to examine some
documents because they are considered “privileged,” or do not have anything to do
with the issues of the case. Your attorney is in a position to know which
documents need to be produced.

•Depositions. A deposition is a formal proceeding, although it is not conducted at

the court house, in which one attorney will ask witnesses, who are under oath,
questions. The questions and answers are taken down by a court reporter. The
purpose of a deposition is to “discover” the truth, and as a way to pin down a
witnesses’ statements, to prevent them from changing their story at trial.
Generally, depositions go forward after the parties have completed the
interrogatories and production requests. At this point, the attorneys have a basis
for asking the questions of the witnesses.
Giving a deposition can be intimidating. Attorneys sit on each side of the table,
and you will be asked questions under oath as a court reporter takes down your
every word. There are several things you should keep in mind when you give a
deposition. To feel as comfortable as possible your attorney should spend time
with you before your deposition to give you an idea of the issues that are to be
the focus of the questioning. Attorneys usually take one of two approaches in
questioning witnesses: they either pretend to be a friend to unduly relax you or
they yell in an attempt to intimidate. In either case, their objective is to get
you to say something you otherwise would not say. Be aware of these ploys.

Always stop and think about an answer before you give it. Make sure you understand
the question, and do not hesitate to ask for clarification. Stopping and thinking
also allows your attorney to object to the question before you answer.

Attorneys want to make you think that it is their meeting and that they are in
control. Never forget that without you, no one else would be sitting in that room.
It is your prerogative to ask for clarification, to ask for a break, to get up and
walk around. You are important to the process, not the attorneys.

•Expert Discovery. In this phase of discovery, the attorneys ask questions of the
other side’s medical experts in an attempt to discredit those experts. Discovery
of experts includes interrogatories, production of documents and depositions as
well.

Trial Preparation
Your attorney will discuss the facts of the case as you see them so you are
prepared and feel comfortable before giving your testimony. They will go over your
deposition testimony to ensure you recall the facts stated or, if your testimony
has changed, why it changed. They will question things that other witnesses said
and may ask you to read their deposition transcripts in preparation.

2. File a Criminal Action. File a complaint with local police. Police agencies in
most large cities have special sexual assault unit for these kinds of complaints.
While some cases are settled out of court, some go to trial, and it can take years
before your case is actually tried. Patients don’t always win cases that may end
up being decided in favor of the therapist. Once a complaint is filed, the police
will investigate it and give the results to the district attorney’s office. The
district attorney’s office will decide whether there is enough evidence to file
criminal charges. Criminal prosecution must be initiated within two years of the
offense.

California Business and Professions Code 729, enacted in 1989, makes it a crime
for a therapist to have sexual contact with a patient. This law applies to two
kinds of situations:
• The therapist has sexual contact with a patient during therapy, or
• The therapist ends therapy to start having sexual contact with a patient.
A first time offender would be charged with a misdemeanor. Second and following
offenses may be a misdemeanor or a felony. An offender may be (1) fined up to
$1,000 and/or sentenced to a county jail for up to one year, or (2) fined up to
$5,000 and/or sentenced to state prison for up to one year, respectively. To file
a criminal complaint against a therapist you can contact your local Victim/Witness
Assistance Program to help you through the legal process. Look in your local phone
book under “district attorney," or call 1-800-VICTIMS (842-8467).

3. Public Action- Media Attention. Call the local newspaper. Additionally know
that once a legal suit is filed, there is the possibility of press coverage,
especially if the patient or therapist is well known.

4. File a Complaint With A Licensing Board and Association (formally all are
called the “Department of Regulation or DPR”) California Business and Professions
Code Sections 726, 729, 2960(o), 4982(k), 4986.71, and 4992.3(k).

The regulatory department for a licensing board may have the power to revoke or
censure a person’s license and ability to practice.
If your counselor is a licensed professional (MFT’s, Social Workers,
Psychologists, Psychiatrists, Medical Doctors, Acupuncturists, Chiropractors,
Nurses and Some Drug Counselors) you can report them to their licensing board. You
cannot receive monetary compensation using this option. Licensing boards
discipline licensed therapists by using an administrative law process. Most cases
are settled by a stipulated agreement where the therapist admits to the violation
and accepts disciplinary action; no hearing is held, and the patient does not have
to testify. If not settled this way, an administrative law judge will hold a
hearing, and you will be required to testify. When the judge makes a decision, the
board decides whether to accept this decision or to issue its own. There is no
time limit for reporting sexual exploitation to a licensing board but it’s best to
report it as soon as possible.

Most actions use only your initials in public documents rather than your full
name. Hearings are open to the public and there’s a possibility that such
confidentiality may be jeopardized during the investigation or hearing. Anonymous
complaints are accepted, but are almost impossible to investigate without the
cooperation of the accuser.

A disciplinary process from the time of a complaint to a final decision takes two
years or longer. A complaint is evaluated and investigated, and you and the
therapist will be notified if the board has sufficient evidence to initiate
disciplinary action. You and the therapist will be interviewed separately.
Depending on the violation and findings, the board may revoke, suspend, and/or
place a license on probation with terms and conditions. If a license is revoked,
the person cannot legally practice their previously licensed profession.

To file a complaint, request a complaint form or write a letter. Include your

name, address and telephone number; the name, address and telephone number of the
therapist; a description of your complaint; copies of any documentation (for
example, letters, bill receipts, cancelled checks, or pictures); and names,
addresses, and telephone numbers of any witnesses.

If You Are The Counselor

Your license can be attacked by an individual, a government agency for failure to
pay for student loans, or taxes or if you have misappropriated drugs or for
substance abuse. Retain a competent attorney familiar with the particular board to
ensure full protection. The first step in the process is an “informal” meeting
with an investigator. The investigator will call and try to convince you that the
meeting is “no big deal.” Be cautious. The investigator is not your friend and
while the meeting may be presented as informal, it is anything but informal. You
need representation at that meeting. Professional liability policy automatically
provides coverage for regulatory investigation defense. (If you have liability
insurance through the International Hypnosis Federation’s carrier, you will
receive reimbursement up to $5,000 per incident and no more than $10,000 per
policy period for fees, costs and expenses associated with any investigation or
disciplinary action by a regulatory body associated with your professional
license.)

4. Report Them To Their Professional Associations Most professional licensed and

unlicensed Counselors belong to a professional association that provide education
and ethical guidelines. Associations can only give general information on
appropriate behavior for their members and your rights for reporting what
happened. Each association has its own ethics, that clearly state that sexual
involvement with patients is unacceptable and unethical.
If the violating hypnotist is also a licensed therapist and belongs to an
association, file a formal complaint with that association. After investigating
the complaint, the association may recommend disciplinary actions or remove them
from membership. Removing a therapist from the association lets other members know
about unethical behavior but will not keep the therapist from practicing. Only a
licensing board or court action can do that. It also offers no monetary recovery
(only a civil action can do that), and will not result in criminal action against
the person.

Each association has different complaint protocols. Call or write the appropriate
association for this information. To find out which association the therapist
belongs to, if any, call the therapist’s office and request this information; have
a friend call the office or therapist for you; or check with the different
associations.

PSYCHIATRIST- Physician American Psychiatric Association 1400 K Street, NW

Washington, DC 20005 (202) 682-6000
PSYCHOLOGIST- American Psychological Association 750 First Street, NE Washington,
DC 20002 (800) 374-2721

MARRIAGE & FAMILY COUNSELORS AND SOCIAL WORKERS National Association of Social
Workers 1016 23rd Street Sacramento, CA 95814 (916) 442-4546
American Association for Marriage and Family Therapy 1133 15th Street, NW, Suite
300 Washington, DC 20005 (202) 452-0109

FREQUENTLY ASKED QUESTIONS

Is It Normal To Feel Attracted To Your Therapist?
Clients have strong feelings for an attentive, kind and caring helper. This is a
common reaction. However, counselors are trained to be aware of this and to
maintain a relationship that is beneficial to the you. While feelings of
attraction are natural, professional help is supposed let you explore and resolve
feelings, without having to act them out.

What If I Was The One Who Brought Up Having Sex?

That doesn’t matter. The therapist is responsible for keeping sexual out of
therapy. If you made an advance they should clearly state; “Sometimes clients have
strong feelings for their counselor, however those feelings are not appropriate if
expressed. In order to continue we must agree to have a strictly professional
relationship. Will you agree to that? If not we must terminate this session and I
will refer you to another counselor.”

“I trusted and believed in him. I had always felt safe with him, which was
something I’ve rarely ever felt. He told me we had to keep our relationship secret
because of what it might do. I’ve lied to everyone about us. Now I’ve gone back to
my destructive habits and I’ve attempted suicide. I’m barely talking to my family
and I have no friends. I hate living like this.”

Does This Happen A Lot?

One national study, according to the California Board of Behavioral Studies, says
that “probably less than 10% of all therapists of any kind have had sexual contact
with their patients and that 80% of the sexually exploiting therapists have
exploited more than one patient. In other words, if a therapist is now sexually
exploiting a patient, he or she probably has done so before and is likely to do so
again.”

Why Would Someone Sexually Exploit Their Patients?

There are as many excuses as there are abuses but none is acceptable for using a
trusted, therapeutic relationship for a counselor’s own sexual gain. Everyone
knows that this conduct is unethical and illegal.

What If The Person Retaliates, Harasses, Or Files A Lawsuit Against Me For

Reporting Them?
Retaliation and harassment of a complainant is illegal and can be prosecuted. If
this happens contact your local district attorney. If the abuser files a lawsuit
against you, you will be required to defend yourself in the lawsuit however, the
law provide immunity from monetary liability for reporting misconduct to a
licensing board.

What are a SUMMONS, COMPLAINT & SUBPOENA?

A summons and complaint or subpoena calls your professional conduct and reputation
into question. The following information can help to stem that tide of any natural
fear and anger:

A summons is just a piece of paper that says you received the attached papers and
have been informed that you need to respond to those papers in court by a certain
date. Depending upon the jurisdiction, or court system in the area where you live,
the summons and complaint will be personally served upon you by an officer of the
court; generally, a sheriff, or by certified mail, return receipt requested. The
court can now direct you to produce documents or appear in person at a deposition
or trial. Generally, when you receive a subpoena you are not a defendant in the
case at that time but you could become a one later.

For Counselors being summoned: If you are the counselor being summoned, have an
attorney present with you to make sure that you do not do or say something that
will encourage the claimant to sue you and bring you into ongoing litigation. If
you have liability insurance contact your carrier immediately so they can start
their claims process and notify and assign you an attorney to help you navigate
the court system and protect your rights. Members of the International Hypnosis
Federation can buy liability insurance by going to our website
www.hypnosisfederation.com linking to our carrier Lockton and supplying your
membership number.

How Can I Prevent This From Happening Again?

1. No one has the right to sexual exploit you.
2. Question any action that seems sexual in nature.
3. Immediately end any relationship that seems unsafe.
4. When choosing a helper, get a referral from a friend or a good referring
organization (www.hypnosisfederation.com) and check if any complaints were filed
against that person. If you seek out a licensed therapist (Hypnotherapists, Life
Coaches, and many other fine helpers are certified, not licensed) check with their
licensing board to see if they are under suspension or probation. You can also
check the county Superior court to see if any malpractice lawsuit judgments are on
file against them.
“Once I told him I didn’t want to see him anymore, I felt free. I’m beginning to
feel better, stronger.”

References:
www.hypnosisfederation.com
California Therapist, November/December 1989, San Diego, California.
Lockton Insurance Information