Sexual Abuse/Therapist Sexual Abuse Cases FAQs

Q. Who may bring a lawsuit for sexual abuse?

A. Anyone can bring a lawsuit if they have been sexually abused by another person. This includes males, females, adults, and children.

Q. What if sexual abuse is perpetrated by a member of the same sex?

A. It does not matter. Same sex abuse is prohibited.

Q. Can adults bring cases of sexual abuse?

A. Yes. Adults can bring cases for sexual abuse that occurred when they were children or sexual abuse that occurred while they are adults as long as they bring the case within the statute of limitations.

Q. What is sexual abuse?

A. There is no one specific definition for sexual abuse. Whether or not an act will be considered sexual abuse under the law depends upon the circumstances under which the act occurred and the age of participants.

Q. Does the sexual touching have to be nonconsensual to be considered abuse?

A. In most cases a plaintiff will have to establish that they did not consent to the sexual contact to prevail in a case for sexual abuse. The hallmark of most sexual abuse cases is the existence of unwanted or unwelcomed sexual touching.

There are certain classes of people who are protected from any sexual touching whether or not they consented and whether or not the touching was welcomed. For instance, it is absolutely prohibited for an adult to have any type of sexual contact with a minor, i.e. a child under the age of 18, welcomed or unwelcomed. Further, all licensed healthcare providers are prohibited from engaging in any type of sexual contact with patients during the time of treatment,. Psychotherapists are prohibited from engaging in any type of sexual contact with patients during the time of treatment. In these cases, consent is irrelevant.

Q. Can someone besides the perpetrator be sued for sexual abuse?

A. Yes. If the abuse involved sexual harassment in the workplace, the employer may automatically be held responsible if the abuse was perpetrated by a supervisor, and will also be found responsible if the employee can establish that the employer knew or should have known that employees were at risk of harassment or abuse from the co-employee.

A person, under certain circumstances, may also be able to bring an action against the employer of a perpetrator or someone who failed to take sufficient action to protect the public from a perpetrator. This can only be determined on a case-by-case basis.

Q. How long do I have to bring a case for sexual abuse?

A. A minor has at least until his or her 28th birthday to bring a case for sexual abuse that occurred while he or she was under 18. An adult has one year from the date of the abuse or one year from discovering the harm from the sexual abuse to bring an action. There are many exceptions to the statute of limitations and, therefore, an attorney should be consulted before initiating or giving up on a potential sexual abuse case.

Q. What damages can I recover if I have been sexually abused?

A. If a plaintiff can prove sexual abuse, he or she is entitled to recover damages for past and future medical treatment, past and future wage loss, damages for pain, suffering and emotional distress.

Q. Do I need an attorney to bring a sexual abuse case?

A. Sexual abuse cases are extremely difficult to prove and the skill of an attorney experienced in this area is very helpful. It is important that the plaintiff's attorney is aware of the special protections provided to sexual abuse victims in litigation, and that the attorney understands the serious, life-long consequences that frequently flow from sexual abuse. Further, in cases against psychotherapists and healthcare providers, it is particularly important that an attorney understands why the law recognizes that a patient can never consent to a sexual relationship under these circumstances.

Q. What is therapist abuse?

A. Therapist abuse, sometimes referred to as "transference abuse" is a medical phenomenon in which the therapist (whether it be a psychiatrist, psychologist, social worker, physician or other person in a therapeutic relationship to a patient) uses the imbalance of power to coerce the victim or patient to engage in sexual relations with the therapist.

Q. How does therapist abuse occur?

A. Through a phenomenon known as transference, the patient in a therapeutic situation is encouraged to view the therapist as someone standing in a different role from that in which he normally stands, for example, if the patient is having trouble dealing with her mother, the therapist encourages the patient to view the therapist as the patient's mother and thereby encourages the patient to tell her mother all of the things that she has been unable to tell her mother throughout her life. This transference phenomenon is encouraged and is a very therapeutic tool when used correctly. The patient transfers the identity of a family member or other person with whom the patient is having difficulty upon the therapist. The therapist and the patient then work out the problems of the patient in a role-playing format.

It is when the therapist manipulates this transference and coerces the patient to view the therapist as the patient's lover, that abuse occurs.

Q. What is meant by "transference" and "abuse of transference"?

A. Transference is the phenomena that occurs in psychotherapy in which a patient, without realizing it, transfers perceptions and feelings that the patient had as a child on to the therapist. The patient reacts toward the therapist in a similar manner to which a young child would react toward a parent. This necessarily puts the therapist in an extremely powerful position and the patient in an extremely vulnerable position. For the therapist to take advantage of the transference phenomena by engaging in a sexual relationship or otherwise exploiting his or her patient is known as "abuse of transference."

Q. What does the term "breach of boundaries" mean in a therapist malpractice and abuse case?

A. A therapist must also maintain his or her "boundaries" at all times. This means that the therapy must be focused at all times on the patient, the patient's problems and not the therapist. The therapist should not reveal any intimate information about himself or herself to the patient, and the therapist should not engage in any type of business, sexual, social or personal relationship with the patient other than psychotherapy. When a therapist fails to act in the above manner, it is a considered a breach of boundaries.

Q. How can I win my case if all of the negligence and abuse occurred during therapy sessions or at other times in which there were no witnesses?

A. In this "he said, she said" situation, a patient can still win the case as long as the patient is credible and maintains their credibility throughout the lawsuit. There may be evidence of negligence in what is included or omitted from the therapist's notes, and the patient will usually be able to prove that there were at least non sexual breaches of boundaries that will tend to indicate that the therapist had poor impulse control and thus was likely to have also entered into a sexual relationship.

Q. Is it important to retain an attorney who specializes in therapist abuse cases?
Q. How is the patient made aware of the abuse?

A. Oftentimes the patients are so totally enthralled with the therapist, that they actually feel that the therapist is in love with them and will at some future time leave their spouse and marry them. It is normally only after the relationship has been found out by some third party, or terminated by legal or professional society action, or when the patient finds out that the therapist is having sex with other patients that the relationship terminates.

Q. Can I bring a civil, criminal or licensing board case against a therapist?

A. In a situation in which there is sexual abuse during treatment, a civil, licensing board, and criminal case may all be maintained by the patient. In a civil case, the patient can seek compensation. In the licensing board case, the patient can attempt to have the licensing board revoke or suspend the therapist's license. In a criminal case, the patient can seek to have the State fine the therapist or even imprison the therapist. The decision to pursue one or all of these cases should be made after consulting with an attorney who specializes in therapist abuse cases. The cases can dramatically affect each other and pursuing a licensing board case or a criminal case, under certain circumstances, can destroy a patient's ability to recover damages in a civil case.

Q. What are the legal issues?

A. Perhaps the foremost legal issue in the area is the applicability of certain insurance clauses in malpractice policies that cover mental health professionals. Apparently, in response to the increasing number of lawsuits concerning sexual abuse by therapists, many of the professional liability insurance policies include a clause that states as follows:

"The total limit of the Company's liability hereunder shall not exceed $25,000 in the aggregate for all damages with respect to the total of all claims against any Insured(s) involving any actual or alleged erotic physical contact, or attempt thereat or proposal thereof..."

This clause purports to limit the liability of the carrier to $25,000.00 for "any lawsuit alleging sexual contact".

This policy is prevalent across the country but various courts studying the issue have decided that although this clause may apply to the sexual contact itself, that the standard professional liability policy continues to cover the allegations of the complaint which relate to actual malpractice, i.e. failure to diagnose the patient's problem, failure to refer, gross and outrageous misconduct, negligence and negligent infliction of emotional distress, breach of professional duty, rendering professional services below the standard of care, allowing the transference and countertransference to get out of control, failure to appropriately manage the transference or counter transference, recommending and engaging in treatment that was deleterious to the patient's condition in violation of the appropriate standard of care, failure to properly treat the patient for the problem for which she sought professional help, and failure to timely refer the patient to another therapist.

Q. What are the defenses?

A. Aside from the policy defenses referenced above, the most common defense of the therapist is that this was a consensual liaison between two consenting adults. This belies the fact that in the therapist patient relationship the parties are not on an equal playing field. The therapist is in a much greater position of power than the patient and is aware of the concept of transference and is aware of how it may be used. Many plaintiffs in these cases have taken the position that the transference phenomenon and actions of the therapist have removed the ability of the patient to consent and move the court to strike consent as a defense.

Q. What are the injuries?

A. We must understand that most individuals who consult a therapist are seeking help for some problem or else they would not be there. What occurs in most situations is not only does the therapist not attempt to solve the patient's problem, but in fact gives the patient a much larger problem than the patient came with.

When the relationship finally terminates, it is usually a very devastating termination for the patient and many of the patients attempt suicide after finding out what has been done to them. Therapist abuse victims will normally suffer impairment in all areas in which they formerly functioned. In addition, they will suffer a multitude of symptoms including a sense of betrayal, loss of self esteem, loss of identity, loss of hope, loss of spirituality, loss of independence, and the loss of ability to enjoy their family and their life. Further, they will suffer sleep and eating disturbances, anxiety, depression, and any other number of significant psychological symptoms.

Many of these patients undergo hundreds of thousands of dollars of mental health assistance and inpatient psychological hospitalization.

Q. What are the remedies?

A. In most jurisdictions, abuse of the transference phenomenon is malpractice. The remedies would therefore be to file a civil suit against the doctor and his malpractice carrier as in any other medical malpractice case. Further, there are theories of breach of fiduciary responsibility, breach of contract and actions for return of medical expenses paid.

Q. What damages are recoverable?

A. The patient should be able to recover damages for past and future medical expenses, past and future wage loss, and past and future pain, suffering and emotional distress. The issue of future medical expenses is particularly important in therapist abuse cases, since frequently a therapist abuse victim will require a lifetime of psychotherapy and sometimes long hospitalization. It is important that plaintiff's attorney retains an expert who understands this concept and can provide testimony to a jury that will allow for a fair award for future medical expenses.

Q. What are the clients like?

A. One of the most rewarding aspects of personal injury practice is the ability to help a client who is really in need. Due to the fact that this area is new and emerging, it is very difficult to obtain legal assistance from someone who is familiar with this patient's problem. These clients are very fragile and vulnerable. They have lost their ability to trust. They have given their trust to a physician or mental health professional whose duty it was to try to alleviate their pain and they were given more pain. The clients need a lot of attention, need to be kept informed, and need to be reassured on an ongoing basis. Once the attorney convinces the client that he is on the client's side, and that he will not be an abusive person, then the relationship between attorney and client is very fulfilling.

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