Criminal Liability Under the Uniform Code of Military Justice for Sexual Relations During Psychotherapy

AuthorCaptain Jody SI. Prescott Dr. Matthew G. Snow

I. Introduction

Throughout much of recorded history, sexual relations between medical practitioners and their patients have been forbidden.) The rationale behind this prohibition is that sexual activity between a patient and an attending physician harms the patlent, and therefore interferes with any cure attempted by the physician.2 Because of the unique healing relationship that exists between psychotherapists and their patient^,^ corn. pliance with this precept is considered a prerequisite for effective change In the fields of both psychology and psychiatry.'

In recent years, the mental health professions have focused increasing attention on the nature and the effects of sexual relationships occurring during the course of psychotherapy.6 Despite the obvious ethical and legal consequences, various


surveys of psychologists and psychiatrists show that the incidence of sexual relations between male therapists and their patients ranges between 7.1% and 9.4%, and between female therapists and their patients between 2.5% and 3.1%.8

Although some practitioners were originally in favor of allow'ing sexual relations between psychotherapists and pa. tents, and a minority even advocated the use of sex as a method of treatment, the practice appears to enjoy no public or professional support today.' Although there LS a relative pau. city of research regarding the short and long-term consequences of client-therapist sexual relations: one study estimated that patients were adversely affected in approximately ninety percent of cases in which sexual impropriety occ~rred.~ Adverse effects included depression and multiple interpersonal conflicts such as decreased ability to trust, inadequate sexual relations, increased drug or alcohol use. and possibly suicide

Many states have enacted legislation in an effort to curb the scope and severity of the problem. As a result, civilian psychotherapists who engage in sexual relations with their patients

now face the possibility of criminal actions in several states, as well as cwil liability and professional disapprobation. Under the Uniform Code of Military Justice (UCMJ)," Service mem ber psychotherapists also may be criminally liable for engaging in sexual relationships with patients To appreciate the criminal sanction of psychotherapeutic sexual abuse in the military properly, it first is helpful to review briefly some aspects behind the practice of psychotherapy and why the course of treatment carries with it the inherent risk of sexual involvement between therapists and patients. In this regard, it is also helpfui to examine the evolving legislative and judicial treatment of psychotherapist-patient sexual relations in civilian jurisdictions.

11. Psychotherapy and Transference

Several authors have posited that the causal mechanisms of sexual involvement between therapists and clients are best understood within a psychoanalytic or psychodynamic perspective, specifically referring to aspects of transference or countertransference that go unattended or which are dealt with unprofessionally.1z Transference, broadly defined, refers to "the projection and displacement upon the analyst of unconscious feelings or wishes originally directed at important individuals, such as parents in the patient's ~hildhood."'~

In traditional psychodynamic or analytic therapies, the corrective experience of working through early relationships and feelings with the help of the therapist becomes tantamount to the successful resolution of emotional difficulties. The treatment is highlighted by the augmenting of these thoughts and feelings, so that they become the major focus of the therapeutic interaction

Conversely, countertransference represents "the arousal of the psychoanalyst's own repressed feelings through identification with the patient's experiences and problems or through responding in kind to the patient's expression of love or hostility towards him or herself."" The therapist is trained to look

Several suggestions have been made in response to the problem of therapistdient sexual relationships. Possible precautions to prevent these events from happening include:


(1) Before considering any non-erotic touching or verbal compliment, the helping professional should be thoroughly knowledgeable about the client's psychological iunctioning. Such displays may not be appropriate for certain clients.

(2) Consultation with a trusted peer or colleague about the appropriate course of action if erotic feelings are sensed as emanating from the client

(3) Dealing with such feelings in a direct manner that protects the client's sense of self-esteem. If the client is open about such feelings, the therapist might acknowledge being flattered, but firmly deciare that such relations must not ever occur because it would constitute a grave ethicai violation and could potentially harm the client.

(4) Practicing psychotherapy in surroundings which are not too intimate, and where others are always nearby.l6

Precautions against acting upon one's countertransference reactions primarily consist of being cognizant of these feelings and dealing with them immediately." Personal therapy for therapists in these situations is considered helpful in many cases "to avoid actions which are detrimental to themselves and their patients."LB Even if sexual relations do occur, ther. apists who themselves seek professional assistance are less likely to engage in this behavior again.18 As a last resort, therapists who feel they are unable to work through their attractions far then clients are encouraged to refer their clients eise-where for treatment, assuming responsibility for the

termination of therapy themselves.20 Finally, increased sensitivity by professionals to their own possible shortcomings and...

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