Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations
S. Wesley Gorman* 
56 UCLA L. Rev. 983

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In many states, sexual misconduct regulations categorically prohibit various healthcare professionals from having sexual contact with current patients and with former patients for years after the end of therapy. In many instances, these categorical bans reach conduct that gives no cause for concern: fewer harms are risked by sex between an optician and a former client, for instance, than are risked by sex between a psychologist and a former patient. This Comment identifies precisely what are the harms we should worry about in these types of healthcare professions, and explains why these harms don’t apply equally in all professions or cases. It then proposes a model code standard that addresses the identified harms while permitting harmless relationships. The existence of a standard alternative to a categorical ban is important because the United States and many state constitutions recognize rights of sexual autonomy that are significantly burdened by categorical bans. This Comment argues that many current regulations are unconstitutional largely because the alternative would do just as well at preventing the harms risked by sexual relationships. This is extremely important for healthcare professionals who wish to engage in harmless relationships, however few and far between. States must provide more substantial justification for categorical bans that appear to negatively affect only a few unlucky citizens if those citizens are supported by constitutional rights.

* Senior Editor, UCLA Law Review, Volume 56. J.D. Candidate, UCLA School of Law, 2009.

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