In re Fjellman, 2006 WL 3147575 (Minn. Off. Admin. Hrgs. Sept. 11), authorizes disciplinary action against a massage therapist for having a sexual relationship with an ex-client several months after she stopped treating him. (They married a year later.)
Minnesota law bars a wide range of "health care practitioner[s]" — including massage therapists (I mean the legit ones, not prostitutes claiming to be masseuses) — from "Engaging in sexual contact with a complementary and alternative health care client or former client," with "former client" covering any client who has gotten services from the practitioner "within the past two years." Fjellman raised a constitutional objection, but the administrative agency concluded that it "lacks authority to declare a statute unconstitutional on its face," and that Fjellman had to raise the question in court. I don't know whether Fjellman plans to litigate this further.
1. I understand why the government might want to bar sexual conduct between psychotherapists and patients or even former patients (especially recently former patients). But massage therapists seem pretty far removed from psychotherapists. They don't try to give advice about a person's life, they aren't generally privy to the patient's innermost secrets. They aren't trusted by the patient for guidance (other than perhaps guidance about specific maladies of the sort that massage can fix).
It's hard to see how a sexual relationship between a massage therapist and a former patient is especially likely to be improper. Sure, there's some risk of psychological manipulation and other unsavory behavior — but no more, I think, than in any relationship between two adults.
2. Likewise, I understand why the government might want to bar sexual conduct between doctors or lawyers and their clients: The client may be dependent on the doctor's or lawyer's services, and may fear very serious harms if the relationship sours (at least in certain situations). So it's possible that the professional might try to leverage this dependence into sexual favors, in situations where the client's ability to resist is limited. Yet dooes that seem terribly likely as to massage therapists? If you think your massage therapist is improperly pressuring you, how hard is it to just switch to another massage therapist?
(The possible concern about the sexual relationship distorting the professional's judgment strikes me as less significant, at least setting aside unusual cases such as serious surgery. This sort of distortion may happen even with preexisting sexual or family relationships, yet we generally don't bar lawyers from providing legal services for spouses or close family members, nor should we. Among other things, help from someone who's close with you may be especially effective, because you may have more reason to trust the person.)
3. One could certainly argue that it's more convenient for the government to lay down a flat rule barring all sexual contact between "health professionals" and clients or even former clients, rather than drawing distinctions between psychotherapists, surgeons, and massage therapists. But convenient as such a rule may be, is it really fair, given that a person's choice of romantic and sexual companion — or for that matter, spouse, as ultimately happened in this case — is pretty important in their lives, and is normally the sort of thing that the government ought not try to control? Wouldn't allowing more romantic, sexual, and marital freedom be reason enough to try to draw some finer distinctions?
4. Finally, so far I've talked only about the policy questions, but there is an important policy dimension here. Under Lawrence v. Texas, there are some limits on the government's authority to control people's sex lives; it's far from clear what test Lawrence announces, but it seems to me at least plausible that Lawrence does constrain this sort of interference with people's sexual autonomy, especially when it comes to relationships with ex-clients. (If the ban was only on relationships with current clients, the burden on sexual autonomy would be modest; you'd just have to terminate the professional relationship. But the ban on relationships with ex-clients can't be avoided this way; any possible sexual relationship will be suspended by two years, no matter what you do.)
But even if you disapprove of Lawrence, what about the right to marry? Set aside the same-sex marriage debate, and focus on the right to marry an adult of the opposite sex who's not your close relative — the right that the Court has largely uncontroversially recognized for four decades. This right has generally been understood as involving a right to actually consummate the marriage; yet this law bans even that — even if Ms. Fjelmman had abstained from sex before her marriage, sex on the wedding night, which happened 16 months after the end of the relationship, would have remained forbidden. (Yes, the ban only a total of lasts two years, but that's not exactly the blink of an eye.)
To justify such an interference with people's constitutional right to marry, shouldn't the government need some pretty serious evidence that the sex would lead to some harm, and not just a vague analogy between massage therapists and psychotherapists?
UPDATE: As I noted above, the law applies to a wide range of alternative health care practitioners, and not just massage therapists. In particular, it covers people who practice "(1) acupressure; (2) anthroposophy; (3) aroma therapy; (4) ayurveda; (5) cranial sacral therapy; (6) culturally traditional healing practices; (7) detoxification practices and therapies; (8) energetic healing; (9) polarity therapy; (10) folk practices; (11) healing practices utilizing food, food supplements, nutrients, and the physical forces of heat, cold, water, touch, and light; (12) Gerson therapy and colostrum therapy; (13) healing touch; (14) herbology or herbalism; (15) homeopathy; (16) nondiagnostic iridology; (17) body work, massage, and massage therapy; (18) meditation; (19) mind-body healing practices; (20) naturopathy; (21) noninvasive instrumentalities; and (22) traditional Oriental practices, such as Qi Gong energy healing." Minn. Stat. 146A.001. It thus seems not to be linked to the fact that some forms of massage are "therapeutic" in an, er, direct and not legal way.
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