Caddy v. State, 764 So. 2d 625 (Fla. App. 2000), offers an interesting treatment of the issue. The Florida Constitution expressly secures a right to privacy, which the courts interpreted (in my view, quite reasonably) as presumptively protecting sexual autonomy. Florida law barred all sexual contact between a psychologist and a former client "in perpetuity"; interestingly, while Florida law banned sexual contacts between doctors or psychiatrists and patients, it only covered former patients "on a case by case basis with consideration given to the nature, extent, and context of the professional relationship between the physician and the person."

The Florida Court of Appeal held that the law was facially overbroad, and violated the state constitutional right to privacy. The court concluded that "the State has a compelling interest in protecting the mental health of its citizens, and there is an obvious power imbalance in the psychologist-patient relationship that involves the most basic mental and emotional characteristics of the patient." But it held that the State should have served that interest using a "[less] intrusive means," such as "a rule calling for a decision based on the individual facts of a case" rather than a flat "forever banned" rule.

Here, by the way, were the facts of the case:

In mid-1986, an attorney representing D.J. in divorce proceedings retained Dr. [Glenn R. Caddy, a university professor and forensic psychologist] to perform a forensic assessment on D.J. relative to a child custody dispute. Dr. Caddy met with D.J. on several occasions, examined the child, considered reports from other psychologists in his office, consulted with D.J.'s attorney, and submitted to a deposition as an expert witness. The extent of Dr. Caddy's professional involvement with D.J. lasted for about one month, and he had no further contact with her on a professional basis after October of 1986.

About nine months later, D.J., now divorced, sought out Dr. Caddy in his office at Nova Southeastern University to ask him questions about some courses she was contemplating taking. The two renewed their acquaintance and, thereafter, commenced a friendly relationship which included sharing lunch or dinner on a few occasions. In September of 1987, nearly a year after appellant had seen D.J. in a professional capacity, their relationship became more intimate, including sexual intimacy. This relationship, which was at times tumultuous, included periods when the two shared a residence and continued over the next six years until they parted company under less than friendly circumstances.

Soon after the break-up, D.J. filed a complaint with the Board against Dr. Caddy....

Query whether the same result should be reached under the federal Constitution, given the Lawrence v. Texas decision -- which notoriously failed to make clear what constitutional test it was applying to interference with sexual autonomy. Query also whether the same result should be reached under the right to marry, if Caddy and D.J. had married and then had sex after marriage (as was the case with the massage therapist in the case noted in my earlier post, though the rule there imposed only a two-year ban on sex rather than a perpetual ban). The Court has held that infringements on the right to marry are indeed subject to strict scrutiny or something like it.