H 3194 Session 110 (1993-1994)
H 3194 General Bill, By J.J. Snow, G. Brown, A.W. Byrd, C.D. Chamblee,
J.L. Harris, Kelley, M. McLeod, R. Smith and C.H. Stone
A Bill 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 contract with clients.
01/20/93 House Introduced and read first time HJ-7
01/20/93 House Referred to Committee on Judiciary HJ-7
A BILL
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:
"Chapter 76
Sexual Exploitation by Psychotherapists
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.
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