SECOND REGULAR SESSION

HOUSE BILL NO. 1030

88TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES ROBIRDS (Sponsor), CHRISMER, SALLEE, BROWN, AKIN,

NORDWALD, OSTMANN, CHAMPION, CHILDERS, KASTEN, LUETKENHAUS, ENZ, GASKILL,

HEGEMAN, LEGAN AND HALL.

Read 1st time January 4, 1996 and 1000 copies ordered printed.

DOUGLAS W. BURNETT, Chief Clerk

L1954.01I

AN ACT

Relating to certain civil actions against psychotherapists.

Be it enacted by the General Assembly of the state of Missouri, as follows:

Section 1. For the purposes of sections 1 to 6 of this act, the following terms mean:

(1) "Emotionally dependent", 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", a person who was given psychotherapy within two years prior to sexual contact with the psychotherapist;

(3) "Patient", a person who seeks or obtains psychotherapy;

(4) "Psychotherapist", a physician, psychologist, nurse, chemical dependency counselor, social worker, member of the clergy, marriage and family therapist, mental health service provider or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy;

(5) "Psychotherapy", the professional treatment, assessment or counseling of a mental or emotional illness, symptom or condition;

(6) "Sexual contact", 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 such 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 such 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 paragraphs (a) to (c) of this subdivision. Sexual contact does not include conduct described in paragraphs (a) or (b) that is a part of standard medical treatment of a patient;

(8) "Therapeutic deception", 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 2. 1. 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 if:

(a) The former patient was emotionally dependent on the psychotherapist; or

(b) The sexual contact occurred by means of therapeutic deception.

2. 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 a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions.

Section 3. 1. An employer of a psychotherapist may be liable pursuant to section 2 of this act if:

(1) 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

(2) 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 contacts by the psychotherapist with patients or former patients of the psychotherapist.

2. An employer or former employer of a psychotherapist may be liable pursuant to section 2 of this act if the employer or former employer:

(1) Knows of the occurrence of sexual contact by the psychotherapist with patients or former patients of the psychotherapist;

(2) 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

(3) Fails or refuses to disclose the occurrence of the sexual contacts.

3. An employer or former employer may be liable pursuant to section 2 of this act only to the extent that the failure or refusal to take any action required by subsections 1 or 2 of this section was a proximate and actual cause of any damages sustained by the claimant.

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 the provisions of this section.

Section 4. 1. In an action for sexual exploitation, evidence of the plaintiff's sexual history is not subject to discovery except when:

(1) The plaintiff claims damage to sexual functioning; or

(2) The defendant requests a hearing prior to conducting discovery and makes an offer of proof of the relevancy of the history; and

(3) The court finds that the history is relevant and that the probative value of the history outweighs its prejudicial effect.

2. 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 5. 1. 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.

2. 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.

3. Any violation of the terms of the court's order may be grounds for a new trial.

Section 6. An action for sexual exploitation shall be commenced within five years after the cause of action arises.