If it happened, it was not a relationship, whatever it was called in the room. California treats sexual contact between a therapist and a client as a crime, as grounds to end a career, and as an injury the client can sue for — and it says in the statute itself that your agreement to it is not a defense.

The short answer: three separate laws apply, and none of them depends on whether you said yes. Under the Business and Professions Code, a psychotherapist "who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client, or with a former patient or client when the relationship was terminated primarily for the purpose of engaging in those acts" is "guilty of sexual exploitation," and "[i]n no instance shall consent of the patient or client be a defense."¹ Under the licensing statutes, sexual relations or sexual contact with a client, or a former client "within two years following termination of therapy," is unprofessional conduct — grounds for the board to act against the licence.² ³ And under the Civil Code, "a cause of action against a psychotherapist for sexual contact exists for a patient or former patient" where the contact occurred during therapy, "within two years following termination of therapy," or "by means of therapeutic deception."⁴ There is also a duty on whoever treats you next: a therapist who learns from you that you had sexual contact with a previous therapist "shall provide to the client a brochure" on your rights and remedies, and "shall discuss the brochure with the client."⁵

The crime

Business and Professions Code section 729 names the offence — "sexual exploitation" — and the people it reaches: "Any physician and surgeon, psychotherapist, research psychoanalyst, student research psychoanalyst, or alcohol and drug abuse counselor."¹ "Psychotherapist" takes its definition from section 728, which lists psychiatrists and physicians practising psychotherapy, licensed psychologists, psychological assistants, registered psychologists and trainees, marriage and family therapists and associates and trainees, licensed educational psychologists, clinical social workers and associates, and professional clinical counselors and associates and trainees.⁵ The associate seeing you under supervision is inside the statute.

The acts are "sexual intercourse, sodomy, oral copulation, or sexual contact."¹ For the crime, "sexual contact" means "sexual intercourse or the touching of an intimate part of a patient for the purpose of sexual arousal, gratification, or abuse," with "intimate part" and "touching" defined as they are in the Penal Code's sexual battery statute.¹

A former client is covered "when the relationship was terminated primarily for the purpose of engaging in those acts" — the therapist who ends therapy in order to begin something else has not escaped the section — unless the therapist had first referred the client for treatment to an "independent and objective" clinician recommended by a third-party clinician.¹

The penalties: a single act, or multiple acts with a single client and no prior conviction, is punishable by up to six months in county jail, a fine of up to $1,000, or both. Acts with two or more victims, or two or more acts with one client after a prior conviction, is a "wobbler" — a felony carrying 16 months, two or three years and a fine of up to $10,000, or a misdemeanour carrying up to a year in county jail, a fine of up to $1,000, or both. Two or more victims plus a prior conviction is a straight felony.¹

The licence

Each licensing statute makes sexual contact with a client unprofessional conduct. For marriage and family therapists: "Engaging in sexual relations with a client, or a former client within two years following termination of therapy, soliciting sexual relations with a client, or committing an act of sexual abuse, or sexual misconduct with a client, or committing an act punishable as a sexually related crime, if that act or solicitation is substantially related to the qualifications, functions, or duties of a marriage and family therapist."² For psychologists: "Any act of sexual abuse or sexual misconduct" and "Any act of sexual behavior or sexual contact with a client or former client within two years following termination of therapy."³ The clinical social worker and professional clinical counselor statutes carry the same two-year rule in nearly identical words.²

The complaint goes to the board that issued the licence: the Board of Behavioral Sciences for MFTs, clinical social workers, professional clinical counselors and educational psychologists; the Board of Psychology for psychologists; the Medical Board or Osteopathic Medical Board for psychiatrists — the four boards the brochure statute names.⁶ How to file, and what the board can and cannot do →

The civil claim

Civil Code section 43.93 creates the claim and states its conditions: "A cause of action against a psychotherapist for sexual contact exists for a patient or former patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred under any of the following conditions: (1) During the period the patient was receiving psychotherapy from the psychotherapist. (2) Within two years following termination of therapy. (3) By means of therapeutic deception."⁴

"Therapeutic deception" is defined: "a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient's or former patient's treatment."⁴ The statute closes two doors a defendant might try: "It is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions."⁴ The only exception is between spouses within a marriage.⁴ And your sexual history is, with narrow exceptions, neither discoverable nor admissible.⁴

The deadlines for a civil claim depend on how it is framed and when the harm was discovered, and they are short. Talk to a lawyer promptly rather than working them out from this page. Can I sue my therapist? The deadlines and the caps →

The brochure, and the therapist you see next

The state publishes a brochure for people in exactly this situation, titled Therapy Never Includes Sexual Behavior, which the licensing boards must give to anyone who contacts them about a complaint of this kind and must post on their websites.⁶ It states: "Sexual contact of any kind between a therapist and a client is unethical and illegal in the State of California."⁶ The statute requires it to contain "a legal and an informal definition of psychotherapist-client sexual behavior and sexual contact," "a brief description of common personal reactions," a client's bill of rights, instructions for reporting, "a full description of administrative complaint procedures," notice that "other civil and criminal remedies may also be available," and "a description of services available for support of victims."⁶

And the law reaches into your next therapy room. "Any psychotherapist or employer of a psychotherapist who becomes aware through a client that the client had alleged sexual intercourse or alleged sexual behavior or sexual contact with a previous psychotherapist during the course of a prior treatment shall provide to the client a brochure developed pursuant to Section 337 that delineates the rights of, and remedies for, clients who have been involved sexually with their psychotherapists. Further, the psychotherapist or employer shall discuss the brochure with the client."⁵ A new therapist who does neither is themselves in breach.

What to do, in order

  1. Write it down — dates, places, what was said, anything in writing from the therapist. You do not have to decide today what to do with it.
  2. Read the brochure. It is on each board's website, and the board will send it.⁶
  3. File with the board. The board investigates and, if it finds cause, prosecutes the licence. Do not wait: the boards have time limits of their own for bringing an accusation. How to report a therapist →
  4. Talk to a lawyer about the civil claim before the two-year window and the discovery clock become the problem.⁴
  5. Consider a police report. The criminal statute is enforced by prosecutors, not the board; a police report starts that route.¹
  6. Find a therapist who knows this territory. The brochure duty means any competent clinician should recognise what you are describing.⁵

Q&A

Q: It started after therapy ended. Does any of this apply? A: The civil claim runs for "two years following termination of therapy," the licensing statutes use the same two years, and the criminal statute reaches a former client where therapy "was terminated primarily for the purpose of engaging in those acts."¹ ² ³ ⁴

Q: I initiated it. A: "For purposes of subdivision (a), in no instance shall consent of the patient or client be a defense."¹ The law places the duty on the licensed person, not on you.

Q: They said it was part of the treatment. A: That is "therapeutic deception," and it is one of the three conditions that creates the civil claim on its own.⁴

Q: My therapist was an unlicensed associate. A: Associates and trainees are named in the definition of "psychotherapist."⁵ The supervisor's responsibility is a separate question for the board.

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Sources

  1. Cal. Business & Professions Code §729 — (a) the offence of "sexual exploitation," its actors, the acts ("sexual intercourse, sodomy, oral copulation, or sexual contact"), the former-client clause "when the relationship was terminated primarily for the purpose of engaging in those acts," the independent-referral exception; (b)(1)–(5) the penalties as summarised, and the closing sentence of (b), "For purposes of subdivision (a), in no instance shall consent of the patient or client be a defense"; (c)(3) "'Sexual contact' means sexual intercourse or the touching of an intimate part of a patient for the purpose of sexual arousal, gratification, or abuse" and (c)(4) "'Intimate part' and 'touching' have the same meanings as defined in Section 243.4 of the Penal Code" — california.public.law.
  2. Cal. Business & Professions Code §4982(k) — the marriage and family therapist provision as quoted — california.public.law; §4992.3(l) (clinical social workers: "Engaging in sexual relations with a client or with a former client within two years from the termination date of therapy with the client…") — california.public.law; §4999.90(k) (professional clinical counselors, in the same words as §4982(k) with "licensed professional clinical counselor" substituted) — california.public.law.
  3. Cal. Business & Professions Code §2960(o)(1)–(2) — "Any act of sexual abuse or sexual misconduct" and "Any act of sexual behavior or sexual contact with a client or former client within two years following termination of therapy" — california.public.law.
  4. Cal. Civil Code §43.93 — (a) definitions, including "therapeutic deception"; (b) the cause of action and its three conditions as quoted; (c) "It is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions. No cause of action shall exist between spouses within a marriage"; (d) limits on discovery and admission of the plaintiff's sexual history — california.public.law.
  5. Cal. Business & Professions Code §728 — (a) the brochure duty as quoted; (c)(1)(A)–(N) the definition of "psychotherapist"; (c)(3) the definition of "sexual contact," for the brochure duty, as "the touching of an intimate part of another person" — california.public.law.
  6. Cal. Business & Professions Code §337 — the brochure's required contents and its distribution by the Board of Behavioral Sciences, Board of Psychology, Medical Board of California and Osteopathic Medical Board of California — california.public.law; Department of Consumer Affairs, Therapy Never Includes Sexual Behavior — "Sexual contact of any kind between a therapist and a client is unethical and illegal in the State of California"; "You can submit your complaint online or in writing using the forms on the respective board's website to start the process" — dca.ca.gov.

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