Current Status Introducing Body:House Bill Number:3194 Primary Sponsor:Snow Committee Number:25 Type of Legislation:GB Subject:Criminal sexual conduct, psychotherapists Residing Body:House Current Committee:Judiciary Computer Document Number:CYY/15025SD.93 Introduced Date:19930120 Last History Body:House Last History Date:19930120 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Snow R. Smith G. Brown Stone McLeod Byrd Kelley Chamblee J. Harris Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
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3194 House 19930120 Introduced, read first time, 25
referred to Committee
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TO AMEND SECTION 16-3-654, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL SEXUAL
CONDUCT IN THE THIRD DEGREE, SO AS TO PROVIDE THAT A PERSON IS GUILTY OF THIS OFFENSE IF HE IS A PSYCHIATRIST, PSYCHOLOGIST, LICENSED COUNSELOR OR THERAPIST, OR A MEMBER OF THE CLERGY AND ENGAGES IN SEXUAL CONTACT WITH ANOTHER PERSON WHO IS A PATIENT OR CLIENT OF HIS FOR MENTAL HEALTH THERAPY, AND TO AMEND TITLE 40, RELATING TO PROFESSIONS AND OCCUPATIONS BY ADDING CHAPTER 76 SO AS TO ENACT THE ACTION FOR SEXUAL EXPLOITATION BY PSYCHOTHERAPISTS ACT WHICH DEFINES THE TERM PSYCHOTHERAPISTS, PROVIDES CIVIL PENALTIES FOR PSYCHOTHERAPISTS WHO HAVE SEXUAL CONTACT WITH THEIR PATIENTS DURING A THERAPY SESSION, OR OUTSIDE OF A SESSION IF THEY ARE TOLD IT IS PART OF THE TREATMENT OR IF THE PATIENT IS EMOTIONALLY DEPENDENT UPON THE PSYCHOTHERAPIST, AND PROVIDES THAT EMPLOYERS OR FORMER EMPLOYERS OF PSYCHOTHERAPISTS MAY ALSO BE LIABLE IF THEY FAIL TO TAKE REASONABLE ACTION WHEN THEY HAVE REASON TO KNOW THAT A PSYCHOTHERAPIST ENGAGED IN SEXUAL CONTACT WITH CLIENTS OR IF THEY FAIL TO MAKE INQUIRIES OF FORMER EMPLOYERS CONCERNING SEXUAL CONTACT WITH CLIENTS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 16-3-654 of the 1976 Code is amended to read:
"Section 16-3-654. (1)(A) A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:
(a)(1) The actor uses force or coercion to accomplish the sexual battery in the absence of aggravating circumstances.
(b)(2) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery.
(2)(B) (1) A person is also guilty of criminal sexual conduct in the third degree if he is a psychiatrist, psychologist, licensed counselor or therapist, or a member of the clergy or purports to be a psychiatrist, psychologist, licensed counselor or therapist, or a member of the clergy and engages in sexual contact with another person and the other person, not the actor's spouse, is a patient or client for mental health therapy by the actor.
(2) As used in this subsection:
(a) `Sexual contact' means any of the following, whether or not occurring with the consent of a patient or former patient.
(i) sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, into the genital or anal openings of the patient's or former patient's body by any part of the actor's body or by any object used by the actor for this purpose, or any intrusion, however slight, into the genital or anal openings of the actor's body by any part of the patient's or former patient's body or by any object used by the patient or former patient for this purpose, if agreed to by the actor;
(ii) kissing of, or the intentional touching by the actor of the patient's or former patient's genital area, groin, inner thigh, buttocks, or breast or of the clothing covering any of these body parts;
(iii) kissing of, or the intentional touching by the patient or former patient of the actor's genital area, groin, inner thigh, buttocks, or breast or of the clothing covering any of these body parts if the actor agrees to the kissing or intentional touching.
`Sexual contact' includes requests by the actor for conduct described in subitems (i) to (iii).
`Sexual contact' does not include conduct described in subitems (i) to (iii) that is a part of standard medical treatment of a patient.
(b) `Mental health therapy' means psychotherapy or other treatment modalities intended to change behavior, emotions, or attitudes, which therapy is based upon an intimate relationship involving trust and dependency with a substantial potential for vulnerability and abuse.
(2)(C) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than ten years, according to the discretion of the court."
SECTION 2. Title 40 of the 1976 Code is amended by adding:
Section 40-76-10. This chapter may be cited as the Action for Sexual Exploitation by Psychotherapists Act.
Section 40-76-20. As used in this chapter:
(1) `Emotionally dependent' means that the nature of the patient's or former patient's emotional condition and the nature of the treatment provided by the psychotherapist are such that the psychotherapist knows or has reason to believe that the patient or former patient is unable to withhold consent to sexual contact by the psychotherapist.
(2) `Former patient' means a person who was given psychotherapy within two years prior to sexual contact with the psychotherapist.
(3) `Patient' means a person who seeks or obtains psychotherapy.
(4) `Psychotherapist' means a physician, psychologist, nurse, therapist, counselor including a chemical dependency counselor, social worker, member of the clergy or other person, whether or not licensed by the State, who performs or purports to perform psychotherapy.
(5) `Psychotherapy' means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.
(6) `Sexual contact' means any of the following, whether or not occurring with the consent of a patient or former patient:
(a) sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, into the genital or anal openings of the patient's or former patient's body by any part of the psychotherapist's body or by any object used by the psychotherapist for this purpose, or any intrusion, however slight, into the genital or anal openings of the psychotherapist's body by any part of the patient's or former patient's body or by any object used by the patient or former patient for this purpose, if agreed to by the psychotherapist;
(b) kissing of, or the intentional touching by the psychotherapist of the patient's or former patient's genital area, groin, inner thigh, buttocks, or breast or of the clothing covering any of these body parts;
(c) kissing of, or the intentional touching by the patient or former patient of the psychotherapist's genital area, groin, inner thigh, buttocks, or breast or of the clothing covering any of these body parts if the psychotherapist agrees to the kissing or intentional touching.
`Sexual contact' includes requests by the psychotherapist for conduct described in subitems (a) to (c).
`Sexual contact' does not include conduct described in subitems (a) or (b) that is a part of standard medical treatment of a patient.
(7) `Therapeutic deception' means 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.
Section 40-76-30. A cause of action against a psychotherapist for sexual exploitation exists for a patient or former patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred:
(1) during the period the patient was receiving psychotherapy from the psychotherapist; or
(2) after the period the patient received psychotherapy from the psychotherapist if:
(a) the former patient was emotionally dependent on the psychotherapist; or
(b) the sexual contact occurred by means of therapeutic deception.
The patient or former patient may recover damages from a psychotherapist who is found liable for sexual exploitation. It is not a defense to the action that sexual contact with a patient occurred outside therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions.
Section 40-76-40. (1) An employer of a psychotherapist may be liable under Section 40-76-30 if:
(a) the employer fails or refuses to take reasonable action when the employer knows or has reason to know that the psychotherapist engaged in sexual contact with the plaintiff or any other patient or former patient of the psychotherapist; or
(b) the employer fails or refuses to make inquiries of an employer or former employer, whose name and address have been disclosed to the employer and who employed the psychotherapist as a psychotherapist within the last five years, concerning the occurrence of sexual contact by the psychotherapist with patients or former patients of the psychotherapist.
(2) An employer or former employer of a psychotherapist may be liable under Section 40-76-30 if the employer or former employer:
(a) knows of the occurrence of sexual contact by the psychotherapist with patients or former patients of the psychotherapist;
(b) receives a specific written request by another employer or prospective employer of the psychotherapist, engaged in the business of psychotherapy, concerning the existence or nature of the sexual contact; and
(c) fails or refuses to disclose the occurrence of the sexual contacts.
(3) An employer or former employer may be liable under Section 40-76-30 only to the extent that the failure or refusal to take any action required by subsection (1) or (2) was a proximate and actual cause of any damages sustained.
(4) No cause of action arises, nor may a licensing board in this State take disciplinary action, against a psychotherapist's employer or former employer who in good faith complies with this section.
Section 40-76-50. In an action for sexual exploitation, evidence of the plaintiff's sexual history is not subject to discovery except when the plaintiff claims damage to sexual functioning; or
(1) the defendant requests a hearing prior to conducting discovery and makes an offer of proof of the relevancy of the history; and
(2) the court finds that the history is relevant and that the probative value of the history outweighs its prejudicial effect.
The court shall allow the discovery only of specific information or examples of the plaintiff's conduct that are determined by the court to be relevant. The court's order shall detail the information or conduct that is subject to discovery.
Section 40-76-60. In an action for sexual exploitation, evidence of the plaintiff's sexual history is not admissible except when:
(1) the defendant requests a hearing prior to trial and makes an offer of proof of the relevancy of the history; and
(2) the court finds that the history is relevant and that the probative value of the history outweighs its prejudicial effect.
The court shall allow the admission only of specific information or examples of the plaintiff's conduct that are determined by the court to be relevant. The court's order shall detail the information or conduct that is admissible and no other such evidence may be introduced.
Violation of the terms of the order may be grounds for a new trial.
Section 40-76-70. An action for sexual exploitation must be commenced within five years after the cause of action arises."
SECTION 3. This act takes effect upon approval by the Governor.