Professional Ethics and Law in California, 2nd Edition _ ____________________________________________
she encouraged a vulnerable young client to confront a relative regarding retrieved sexual assault memories, even though the client herself was not sure the memory reflected an actual event.
In mental health practice, sexual harassment can take many forms, including offensive or derogatory comments, sexually oriented jokes, requests or demands for sexual favors, leering, visual displays depicting sexual imagery, innuendos, pinching, fondling, and impeding someone’s egress. Workers should not sexually harass supervisees, students, trainees, or colleagues. SEXUAL MISCONDUCT Some states also have laws making sexual misconduct subject to lawsuits and even arrest. (See California’s Business and Professional Code, Section 729, for details of the legal pen- alties that can result from this type of misconduct; California Board of Behavioral Sciences, 2020.) Practitioners need to be sure about the rules that apply to them and must be aware of how their behavior may be perceived by others. For example, Reid (1999) points out that in most situations consent will not be an effective defense against sexual misconduct allegations. The reasons Reid gives for a client’s ability to consent being called into question are: • The fiduciary trust between clinician and patient • Exploitation of transference feelings • The right of the patient to expect clinical needs to be the overriding priority • Exploitation of the patient’s purported inability to resist the therapist’s influence • The alleged “power differential” between any patient and his or her clinician Recorded history of sexual misconduct travels back to the 4th and 5th centuries BCE and includes the Hippocratic Oath that states, “I will abstain from intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free.” In contrast, Sigmund Freud flagrantly demonstrated sexual misconduct when he excused such behavior by his male colleagues. For example, Carl Jung, according to historians, became sexually involved with one of his patients by the name of Sabina Spielrein, a 19-year-old medical student. When correspond- ing with Freud, he stated, “the continued preservation of the relationship (with Sabina) could be rounded out only by sexual acts.” As Jung became more desperate when the affair became known he was reassured by his colleague, Freud. Freud wrote to his friend not to blame himself and stated, “It was not your doing but hers” (McGuire, 1988). Kenneth S. Pope has written extensively on sexual behav- ior between mental health professionals and their clients. He asserts that sexually abusive psychotherapists are well represented in the mental health profession. As a matter of fact, as Jung’s letters to Freud make clear, there is nothing new about sexual contact between mental health practitioners and their clients.
Ultimately, it is the mental health professional’s respon- sibility to establish appropriate and clear boundaries for clients; doing so often prevents issues from surfacing in the first place. The worker must not underestimate the importance of expectations; respecting the client means together creating a safe relationship where boundaries and expectations are unambiguous and openly discussed. To further minimize possible harm to all parties—the client, the worker, the employer, and so on—the following risk management protocols to address boundary issues are suggested: 1. Be alert to potential or actual conflicts of interest. 2. Inform clients and colleagues about potential or actual conflicts of interest; explore reasonable rem- edies. 3. Consult colleagues and supervisors and relevant pro- fessional literature, regulations, policies, and ethical standards to identify pertinent boundary issues and constructive options. 4. Design a plan of action that addresses the boundary issues and protects the parties involved to the greatest extent possible. 5. Document all discussions, consultation, supervision, and other steps taken to address boundary issues. 6. Develop a strategy to monitor implementation of an action plan (with clients, colleagues, supervisors, and lawyers). SEXUAL HARASSMENT In1980 the Equal Employment Opportunity Commis- sion (EEOC), the agency that enforces Title VII, first defined sexual harassment as a form of sex-based discrimination and issued guidelines interpreting the law. These guidelines define unlawful sexual harassment as: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when: • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment .
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