Sex and the Massage Therapist:

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.

More on Sex Between Professionals and Their Former Clients:

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.

The Right to Marry, and the Right to Sexual Autonomy, in Washington State:

Say you live in Washington State, and you find yourself getting to know and becoming attracted to your dental hygienist — or for that matter your optician (that's the person who fits your eyeglasses, based on the prescription provided by your optometrist). You're interested in a romantic relationship, a sexual relationship, perhaps even marriage. You're both consenting adults, you think, right? You have a right to marry, and even a right to have sex (given Lawrence v. Texas).

The Washington authorities don't seem to think so. Let's see how some new Washington regulations treat this.

1. Under Washington Administrative Code 246-16-020, your dental hygienist and your optician are "health care providers." This means that, under Washington Administrative Code 246-16-100, they "shall not engage, or attempt to engage, in sexual misconduct with a current patient." Sexual misconduct "includes but is not limited to" sex, kissing, "[h]ugging ... of a romantic ... nature," "[s]uggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends," "[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship," or "[m]aking statements regarding the patient['s] ... body, appearance, sexual history, or sexual orientation other than for legitimate health care purposesamong many other things."

OK, you say, no problem; you should just switch to a different dental hygienist or optician, and then start dating. Perhaps banning optician-client relationships is going a bit far, but it's hardly a big burden on people's romantic, sexual, or marital choices.

2. No dice! Subsection (3) of the provision states that "A health care provider shall not engage, or attempt to engage" in any of these activities "with a former patient, client or key party within two years after the provider-patient/client relationship ends." Two years, not a short time. If you do want to date your former dental hygienist or optician, you can't even kiss them until two years after you leave their practice. Or, to be precise, you can kiss them, and they can kiss you back — if they are willing to risk professional discipline and possibly loss of their livelihood, a pretty serious burden.

3. But wait; maybe before you leave them and wait the two years, you ought to get a sense of whether they're even interested, no? Except that even if you ask whether they're potentially interested, their answer has to be:

I'm sorry, but I can't discuss the possibility of a relationship after the professional relationship ends.

Of course, this restriction does end two years after the professional relationship ends. So two years after switching dental hygienists or opticians, you can call up the person and say, "Hey, remember me, from two years ago? I only stopped coming to your office so that I could wait two years and then ask you out. So, are you interested?" At that point, they can start a relationship with you — or say, "oh, sorry you had to stay away for two years, but I don't think it would work out between us."

4. Actually, can they start a relationship with you, even two years later? Well, not if "(a) There is a significant likelihood that the patient ... will seek or require additional services from the health care provider; or (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship." How should the hygienist or optician think this through? Let's skip item (a), though even that's troublesome enough (since if a relationship does develop, you might well ask your lover or spouse for some professional help, as lovers and spouses often do).

Instead, consider (b): Is there an imbalance of "power, influence, opportunity and/or special knowledge of the professional relationship"? It's hard to grasp what "special knowledge of the professional relationship" means, but if the question is whether there's an imbalance of "special knowledge," the answer would likely be "yes": All professionals, including dental hygienists and opticians, have special knowledge others don't have.

And what about "influence" or "opportunity"? Say the optician is a relatively well-paid small businessman, and you're poorer or less well-educated. The optician may well have more influence and opportunity than you do. He may not have nearly enough to threaten you or coerce you, but that's not the test; the question is just whether there's "an imbalance of ... influence [or] opportunity." Does an optician making a comfortable living have influence and opportunity that's "balance[d]" with that of, say, someone who's working as a waitress for minimum wage? Probably not. And if that's so, then that means the optician and waitress can'd date even after the two years have passed.

Of course, maybe the rule is meant to capture something less than all "imbalance of power, influence, opportunity and/or special knowledge." Perhaps eventually it will be interpreted more narrowly than it seems to be written. But in the meantime, the optician or hygienist who is contemplating whether to have the relationship with you risks losing his or her livelihood should he or she guess wrong about what the law means.

5. More: The rule applies not just to relationships with clients, but also with any "key party", which includes "immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client."

Say you're a single doctor; you get to know your patient; and through the patient, you get to know the patient's sister, whom you find yourself romantically interested in. Can you ask her out (either while you're seeing the patient, or for two years afterwards)?

Well, if "who would be reasonably expected" applies only to "others," and not to "immediate family members," then immediate family members are off-limits to you, period, no matter whether they play a role in the patient's health care decisions.

But say even that "key party" includes only those immediate family members who would be reasonably expected to play a significant role in the patient's health care decisions. And say that the patient's sister is herself a doctor or a nurse. The patient's sister would surely be "reasonably expected to play a significant role in the health care decisions of the patient" — people routinely rely on medically trained family members' advice in making health care decisions.

So no dice with the patient's sister. You can't marry her. You can't have sex with her. You can't ask her on a date. You can't even say she looks nice (that's "[m]aking statements regarding the ... key party's ... appearance"). You can't do this while you treat the patient. You can't do it for two years afterwards. You can't do it even two years afterwards, if "[t]here is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship" (between you and the patient, or you and the sister? who knows?). And of course you can't transfer the patient to another caregiver so that the two-year clock starts ticking, since that would be "[t]erminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship."

6. While we're at it, if you run into one of your patient's at a party or some other function, make sure you never say that the patient looks nice, since that's "[m]aking [a] statement[] regarding the ... key party's ... appearance."

7. And if you're the professional involved, don't just worry that these rules will apply to you only if the patient (or the other "key party" involved) complains. No matter how good your relationship with the person you're seeing, no matter how nonacrimonious any possible breakup, no matter how carefully you make sure that you only date people who won't want to jeopardize your career, someone else may file the complaint — say, a jealous ex of one of the people involved, which is what happened in this Minnesota case — and you may get disciplined even if the allegedly wronged party is entirely on your side (in fact, is now your loving spouse).

8. Of course I know that medical relationships offer room for various kinds of abuses. In some situations, it may be proper to interfere with people's right to marry, and their sexual and romantic autonomy, in order to prevent those abuses. We can talk about psychotherapist-client (or -ex-client) relationships, or relationships between doctors and current patients, or other circumstances where the risk of subtle coercion or unprofessional behavior is especially high (which is to say materially higher than the risk of subtle coercion and other harms in any sexual relationship).

But the trouble here is that the rules go vastly further than these special situations, and vastly undervalue the countervailing reasons to limit regulation — people's right to choose whom to date, have sex with, and marry, even including their dental hygienists, opticians, and the like. So much for the right to marry; so much for sexual autonomy; so much for consenting adults deciding whom to love, without the fear of losing their livelihood.