Sexual Misconduct by a Psychotherapist
Florida law recognizes the special relationship between a psychotherapist and their patient. Florida law provides for harsh penalties under Section 491.0112, Fla. Stat., when the psychotherapist takes advantage of that relationship to engage in sexual misconduct,
To prove the crime of Sexual Misconduct by a Psychotherapist, the prosecutor with the State of Florida must prove the following three elements beyond a reasonable doubt:
- The defendant committed sexual misconduct with the victim;
- At the time, the defendant was a psychotherapist; and
- At the time, either:
- the victim was a client of (defendant); or
- the victim was a former client of defendant and the professional relationship was terminated primarily for the purpose of engaging in sexual contact.
Under Section 491.0112(3), Fla. Stat., it is not a defense that the victim consented to any act that constitutes sexual misconduct.
Attorney for Sexual Misconduct by a Psychotherapist
If you were charged with the crime of Sexual Misconduct by a Psychotherapist, then contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.
We represent doctors and healthcare professionals charged with criminal offenses and sexually motivated crimes. Our attorneys understand important defenses that apply in these cases.
Crimes Committed by Therapeutic Deception
The penalties are enhanced under Section 491.0112(2), Fla. Stat., if the crime was committed by means of therapeutic deception. Under Section 491.0112(4)(b), Fla. Stat., the term “therapeutic deception” is defined to mean a representation to the client that sexual contact by the psychotherapist is consistent with or part of the treatment of the client.
Under Section 491.0112(4)(a), Fla. Stat., the term “psychotherapist” is defined to mean any person licensed in Florida pursuant to:
- Chapter 458 (medicine);
- Chapter 459 (osteopathic medicine);
- Part I of Chapter 464 (nursing);
- Chapter 490 (psychology);
- Chapter 491 (clinical counseling or psychotherapy services); or
- any other person who provides or purports to provide treatment, diagnosis, assessment, evaluation, or counseling of mental or emotional illness, symptom, or condition.
Under Section 491.0112(4)(d), Fla. Stat., the term “client” means a person to whom the services of a psychotherapist are provided.
Under Section 491.0112(4)(c), Fla. Stat., the term “sexual misconduct” means the oral, anal, or vaginal penetration of another by, or contact with, the sexual organ of another or the anal or vaginal penetration of another by any object.
Unnatural and Lascivious Acts as a Lesser Included Offense
According to the standard jury instructions for the crime of psychotherapist sexual misconduct, the lesser included offenses might include unnatural and lascivious acts under Florida Statute Section 800.02.
The standard jury instructions for the crime of Sexual Misconduct by a Psychotherapist was adopted in 2014 [146 So. 3d 1110] and amended in 2018.
The Courts in Florida do not require the prosecution to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser-included offense.
However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should be given as a lesser-included offense. See State v. Knighton, 235 So. 3d 312 (Fla. 2018).
This article was last updated on Friday, July 5, 2019.