Civil Liability for Sexual Exploitation in Professional Relationships
| Date | 01 January 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02065.x |
| Author | Tom Allen |
| Published date | 01 January 1996 |
Civil Liability for Sexual Exploitation in Professional
Relationships
Tom
Allen*
Introduction
There is no doubt that
a
sexual relationship, and its breakdown, can cause serious
distress and harm
to
both parties. Nevertheless, the law generally declines to
impose liability for harm arising from consensual sexual relations. The old tort
actions based on loss of consortium have been statutorily abolished and damages
are
no longer awarded in divorce against the co-respondent for adultery.’ At the
same time, there is growing recognition that certain sexual relationships can
present
a
special risk of harm. This
is
most obvious in relationships between an
adult and child, but it can also apply to other relationships where there is an
imbalance of power, such
as
those between doctor and patient, teacher and student,
solicitor and client, and clergy and penitent. Furthermore, in these relationships,
the question
of
harm is not purely a private matter between the parties. Society
encourages the weaker party in these relationships to respect and trust the stronger
party, and the relationship often requires respect and trust to work effectively.
Society therefore has
a
justifiable interest in ensuring that the stronger party does
not exploit the respect and trust by entering a sexual relationship with the weaker
Party
*
Of course, the law has never allowed consent to operate
as a
complete defence to
liability arising from sexual relationships. For example, there are circumstances in
which consensual sexual conduct can
be
a criminal offence2 and in many
professions it is unethical conduct to enter a sexual relationship with a client.3
However, the response of private law has been limited. Sexual exploitation,
as
such, is not a specific tort: and those torts that might apply to sexual relations have
doctrinal limitations on their application to sexual exploitation. This is certainly
evident in the English law reports,
as
there are no recent cases on civil liability for
sexual exploitation. Either sexual exploitation is very rare, or victims believe that
*
Senior Lecturer, University of Durham. The writer would like to thank Ilona Cheyne of Newcastle Law
School for her comments on an earlier draft.
1
Law Reform (Miscellaneous Provisions) Act 1970,
ss
4,
5.
See Dias
(ed)
Clerk
&
Lindsell
on
Torts
(16th ed) (London: Sweet
&
Maxwell, 1989)
pp956-958;
Bromley and Lowe,
Family
Law
(8th ed)
(London: Buttenvorths, 1992) pp 122-123; and the Law Commission, Law Com No
25
para 99-102.
2
R
v
Brown
[I9931 2 All ER
75.
Several American states have made it a criminal offence for a
psychotherapist to enter a sexual relationship with a patient; see Perry and Kuruc, ‘Psychotherapists’
Sexual Relationships with Their Patients’ (1993) 2
Annals
of
Health
Law
35, 51-53; Strasburger,
Jorgenson and Randles, ‘Criminalization of psychotherapist-patient sex’ (199
I)
148
American
Journal
of
Psychiatry
859.
3
See
eg
McCoan
v
General Medical Council
[
19641 3
All
ER 143
(PC)
and
Jeetle
v
General Medical
Council
(PC)
(unreported,
14
Feb 1995). where the Privy Council upheld the sentences of erasure of
medical practitioners from the medical register for infamous conduct on the grounds that the
practitioners had sexual relationships with patients.
4
KM
v
HM
(1992) 96 DLR (4th) 289;
cf
Stu66ings
v
We66
[I9931 AC 498.
0
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1996
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19961
Civil Liability for Sexual Exploitation in Professional Relationships
they have little chance of success in the courts. The second possibility is not only
more likely,5 but it is a fairly accurate reflection of the state of the law.
This article argues that there are circumstances
in
which a victim of sexual
exploitation should be entitled to bring a civil action for damages against the other
party to the relationship. It begins by examining some of the evidence on the
psychological effects of sexual exploitation. This provides a sense of where the law
should concentrate in formulating the elements of an action based on sexual
exploitation. Moreover,
it
establishes that sexual relationships arising from
exploitation in professional relationships differ from ‘ordinary’ sexual
relationships. It also shows that there are three possible characterisations of the
wrongful act involved
in
sexual exploitation.
The article then deals with each of these characterisations in
turn.
The first
concentrates on the physical aspect of sexual exploitation, where liability would
turn
on issues regarding the impairment of the victim’s capacity to consent to the
physical contacts. The appropriate tort would be battery.
A
second characterisation
looks at sexual exploitation
as
an
issue
in
the professional performance of a
specialised skill. In at least some situations, the professional service is directly
concerned with the emotional and psychological health of the plaintiff. If entering
the sexual relationship harms the plaintiffs emotional or psychological health, it
could be argued that the professional breached the duty of care. But, while battery
and negligence would often apply to situations of sexual exploitation, they cannot
apply to all of them. Sexual exploitation cannot be
fully
addressed by describing it
only in terms of the sexual acts alone
or
the professional service. Accordingly, the
third characterisation regards that exploitation
as
an
abuse of power and trust, in
that the victim entrusts the professional with emotionally and physically sensitive
matters, and should be entitled to expect the professional to respect that trust.
However, the common law provides no cause of action for
an
abuse of trust. The
final section of the article therefore examines the possibility of developing
an
action for breach of fiduciary duty; only in this way would the law’s response to
sexual exploitation
be
adequate.
The nature
of
the wrong
Sexual exploitation, broadly defined, occurs whenever a relationship involving
power and dependency between two parties acquires a sexual aspect. In this
definition, neither consent, intention to cause harm, nor the occurrence of harm are
essential elements.
As
such, it only provides a starting point for identifying
situations where civil liability should
be
imposed. Relationships often involve
imbalances in power and dependency; these imbalances may
be
attributable to
factors such
as
differences in age
or
wealth, other employment
or
professional
relationships between the parties, or possibly just the dynamics of the particular
couple’s relationship.
To
impose duties and liabilities in respect of all such
relationships would be dangerously broad. Moreover, the diverse and private
5 See eg Gartrell, Herman, Olarte, Feldstein and Localio, ‘Prevalence of Psychiatrist-Patient Sexual
Contact’ in Gabbard (ed),
Sexual Exploitation
in
Professional Relationships
(Washington
DC:
American Psychiatric Press,
Inc,
1989); Kagle and Giebelhausen, ‘Dual Relationships and
Professional Boundaries’ (1994) 39
Social
Work
213 p214; Glaser and
Thorpe,
‘Unethical
intimacy: a survey of sexual contact and advances between psychology educators and female
graduate students’ (1986)
41
American Psychologist
43.
0
The
Modern
Law Review
Limited
1996
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