The bright lines: sexual intimacies and harassment

Transcript

RyanA psychologist is at a friend's wedding. During the reception, someone taps him on the shoulder. It's a former client. Therapy ended a little over two years ago, on good terms.

SoheeThey talk for an hour. It's easy. There's a spark. And on the drive home, he's doing math in his head. Two years. Isn't that the rule? Doesn't that mean it's allowed now?

RyanToday's episode is about that math, and why it doesn't work the way he hopes. Welcome to EPPP Prep, the podcast. I'm Ryan.

SoheeI'm Sohee. Last time we talked about multiple relationships, where the Code asks you to use judgment. Today is different. These are the bright lines, the places where the Code mostly stops weighing and starts forbidding.

RyanLet's go in order, starting with the clearest one. Standard 10.05. Psychologists do not engage in sexual intimacies with current therapy clients.

SoheeNo exceptions in the text. No balancing test. No, but the client initiated it. Just a flat rule.

RyanCompare that with Standard 3.05. For multiple relationships in general, the Code says ones that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical. There's a reasonableness test. Standard 10.05 has no such test. That contrast is the whole point of today.

SoheeJudgment there. A flat rule here.

RyanThen 10.06 extends the circle. Psychologists do not engage in sexual intimacies with individuals they know to be close relatives, guardians, or significant others of current clients.

SoheeAnd 10.06 closes the obvious loophole in its very next sentence. Psychologists do not terminate therapy to circumvent this standard.

RyanPause and think. A psychologist is strongly attracted to his client's sister. He thinks, I'll wrap up therapy and refer my client to a colleague, and then the sister isn't related to a current client anymore. What does the Code say?

SoheeThat's exactly what the second sentence of 10.06 forbids. Ending therapy in order to get around the standard is itself prohibited. The referral doesn't clean it up.

RyanNext, 10.07 runs the other direction in time. Psychologists do not accept as therapy clients persons with whom they have engaged in sexual intimacies.

SoheeSo an ex-partner, even one from years ago, asks to start therapy with you? Under 10.07, the answer is no. There's no time limit written into that one.

RyanNow the big one, the one in our wedding story. Standard 10.08, sexual intimacies with former therapy clients. Part a. Psychologists do not engage in sexual intimacies with former clients for at least two years after therapy ends.

SoheeAnd here's where people stop reading, and where the exam catches them. Part b. Psychologists do not engage in sexual intimacies with former clients even after a two-year interval, except in the most unusual circumstances.

RyanSo two years is not a waiting period that unlocks permission. It's a minimum. After two years, it's still barred, except in the most unusual circumstances.

SoheeAnd the burden falls on the psychologist. A psychologist who does this after the two years bears the burden of demonstrating that there has been no exploitation, in light of all relevant factors.

RyanAnd read that burden sentence closely. It applies to psychologists who become involved after the two years following the end of therapy, and of having no sexual contact with the former client. So the two years have to be two years with no sexual contact at all. The clock doesn't run in the background while something is already going on.

SoheeWhich raises the question: a burden of showing no exploitation, judged by what, exactly?

RyanThe Code lists those factors, and they're worth hearing, because they tell you what the Code is worried about. The amount of time since therapy ended. The nature, duration, and intensity of the therapy. And the circumstances of termination.

SoheeThen the client's personal history and current mental status. The likelihood of adverse impact on the client. And any statements or actions by the therapist during therapy suggesting or inviting the possibility of a romantic relationship after therapy ends.

RyanLook at that last one. If a therapist hinted during treatment that something might happen later, that weighs against him. The Code is looking backward into the therapy itself, not just at the calendar.

SoheeSo, our wedding guest. A little over two years, and a spark at a reception. Is that the most unusual circumstances?

RyanNothing in that story sounds unusual. It sounds like an ordinary attraction. And he'd carry the burden of showing no exploitation, across every one of those factors. His math is incomplete.

SoheeNow let's do the exam traps, because 10.08 has a very predictable set.

RyanTrap one: a one-year rule. Wrong number. The minimum is two years.

SoheeTrap two: it's fine after two years if the former client is the one who initiates it. The standard makes no exception for a client-initiated relationship.

RyanTrap three: it's a permanent ban, no matter what. Also wrong. The Code says most unusual circumstances, not never. It's narrow, but it isn't a lifetime prohibition.

SoheeAnd two quieter traps. Brief therapy is still therapy. And therapy delivered by video is still therapy. The two-year rule applies either way.

RyanPause and think, round two. A woman finished six sessions of video-based therapy eight months ago. She reaches out to her former psychologist and asks him to dinner. What's the correct answer?

SoheeProhibited. Eight months is inside the two-year minimum. Six sessions is still therapy. Video is still therapy. And her asking first creates no exception. Even after two years, only the most unusual circumstances could ever permit it.

RyanHow do these fit with the rest of the Code? Standard 3.08, Exploitative Relationships, says psychologists do not exploit people over whom they have supervisory, evaluative, or other authority, such as clients. And its see-also list points straight to 10.05, 10.06, 10.07, and 10.08.

SoheeSo the Code itself files these rules alongside exploitation. That's a helpful way to remember why the lines are bright.

RyanOne more related standard, because it shows up in workplace and training stems. Standard 3.02, Sexual Harassment. Psychologists do not engage in sexual harassment.

SoheeAnd the Code defines it carefully. Sexual harassment is sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the psychologist's activities or roles as a psychologist.

RyanAnd it has to meet one of two conditions. Either, one, it's unwelcome, offensive, or creates a hostile workplace or educational environment, and the psychologist knows or is told this. Or, two, it's sufficiently severe or intense to be abusive to a reasonable person in the context.

SoheeAnd here's the detail that decides a lot of questions. Sexual harassment can consist of a single intense or severe act, or of multiple persistent or pervasive acts.

RyanSo an answer that says, it was only one incident, so it can't be harassment, is wrong if that one act was intense or severe.

SoheeAnd notice the first condition includes the psychologist knowing or being told the conduct is unwelcome. The second condition doesn't need that. Severe enough to be abusive to a reasonable person is enough on its own.

RyanPause and think, one more. A psychologist makes a single crude sexual remark to a coworker at a clinic meeting. It isn't repeated. Could that alone meet the Code's definition?

SoheeIt could, if that one act is intense or severe. The conduct is sexual and happens in connection with his role as a psychologist, and the Code says harassment can be a single intense or severe act, or multiple persistent or pervasive acts. So, it was only one time, is not automatically a defense.

RyanRelationships with students and supervisees have their own standard, 7.07, and we'll take that one up in our supervision episode.

SoheeLet's recap the bright lines.

Ryan10.05: no sexual intimacies with current clients. 10.06: none with people you know to be close relatives, guardians, or significant others of current clients, and don't end therapy to get around that.

Sohee10.07: don't take a former sexual partner on as a therapy client.

Ryan10.08: at least two years after therapy ends. After that, still only in the most unusual circumstances, with the psychologist bearing the burden of showing no exploitation.

SoheeNo exception when the former client initiates. Brief therapy and video therapy count. And it's not a one-year rule, and not a permanent ban.

RyanAnd 3.02: sexual harassment can be a single severe act, or a pattern of persistent or pervasive acts.

SoheeIf you've missed a 10.08 question before, you're in very good company. The two-year number is so memorable that it crowds out the rest of the rule. Now you have the whole rule, and you know where the traps hide.

RyanTry a couple of these in practice while it's fresh. You'll spot the half-rule answers right away. Thanks for listening to EPPP Prep.

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