Posted by Eugene Volokh:
More on Sex Between Professionals and Their Former Clients:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168298468
Caddy v. State, 764 So. 2d 625 (Fla. App. 2000), offers an interesting
treatment of the issue. The Florida Constitution expressly secures a
right to privacy, which the courts interpreted (in my view, quite
reasonably) as presumptively protecting sexual autonomy. Florida law
barred all sexual contact between a psychologist and a former client
"in perpetuity"; interestingly, while Florida law banned sexual
contacts between doctors or psychiatrists and patients, it only
covered former patients "on a case by case basis with consideration
given to the nature, extent, and context of the professional
relationship between the physician and the person."
The Florida Court of Appeal held that the law was facially overbroad,
and violated the state constitutional right to privacy. The court
concluded that "the State has a compelling interest in protecting the
mental health of its citizens, and there is an obvious power imbalance
in the psychologist-patient relationship that involves the most basic
mental and emotional characteristics of the patient." But it held that
the State should have served that interest using a "[less] intrusive
means," such as "a rule calling for a decision based on the individual
facts of a case" rather than a flat "forever banned" rule.
Here, by the way, were the facts of the case:
In mid-1986, an attorney representing D.J. in divorce proceedings
retained Dr. [Glenn R. Caddy, a university professor and forensic
psychologist] to perform a forensic assessment on D.J. relative to
a child custody dispute. Dr. Caddy met with D.J. on several
occasions, examined the child, considered reports from other
psychologists in his office, consulted with D.J.'s attorney, and
submitted to a deposition as an expert witness. The extent of Dr.
Caddy's professional involvement with D.J. lasted for about one
month, and he had no further contact with her on a professional
basis after October of 1986.
About nine months later, D.J., now divorced, sought out Dr. Caddy
in his office at Nova Southeastern University to ask him questions
about some courses she was contemplating taking. The two renewed
their acquaintance and, thereafter, commenced a friendly
relationship which included sharing lunch or dinner on a few
occasions. In September of 1987, nearly a year after appellant had
seen D.J. in a professional capacity, their relationship became
more intimate, including sexual intimacy. This relationship, which
was at times tumultuous, included periods when the two shared a
residence and continued over the next six years until they parted
company under less than friendly circumstances.
Soon after the break-up, D.J. filed a complaint with the Board
against Dr. Caddy....
Query whether the same result should be reached under the federal
Constitution, given the Lawrence v. Texas decision -- which
notoriously failed to make clear what constitutional test it was
applying to interference with sexual autonomy. Query also whether the
same result should be reached under the right to marry, if Caddy and
D.J. had married and then had sex after marriage (as was the case with
the massage therapist [1]in the case noted in my earlier post, though
the rule there imposed only a two-year ban on sex rather than a
perpetual ban). The Court has held that infringements on the right to
marry are indeed subject to strict scrutiny or something like it.
References
1. http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168045584
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