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Lynette's Law roars back as House Bill 33

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It passed the Maryland House of Delegates last year unanimously 135-0 as HB 60 but the criminal portion of Lynette's Law, a measure that would criminalize the sexual exploitation and abuse of mental health professionals against their patients, was shockingly drawer vetoed by State Senator Brian Frosh who prohibited the bill from even being voted upon in the Senate in 2013. Lynette's Law founder Heather Sinclair vowed to bring the bill back in 2014 and has made good on her word, now armed with additional information and support that she didn't have last year, and once again sponsored by Delegate Michael Smigiel.

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“It wasn't brought to my attention until a few days before session ended last year that there had been a sexual exploitation task force by the legislature back in the 1990s that researched this epidemic, made recommendations, and passed laws that have been ignored for the past fifteen years,” recounted Sinclair. “Had these things been enforced then this would have never happened to me or to so many others.”

The Maryland Task Force to Study Health Professional-Client Sexual Exploitation was legislated in 1993, by 1995 had developed and reported on 54 recommendations, and was instrumental in the passing of a bill in 1998 that required the licensing boards to report on sexual misconduct incidents as well as the publication of a 13-page booklet produced by Maryland's Department of Health and Mental Hygiene (DHMH) titled Broken Boundaries which was distributed throughout the state and made available on the web. Fifteen years later, the few remaining copies of this booklet sit in a dusty box, long forgotten until Lynette's Law came along.

According to Broken Boundaries, “Sexual misconduct, also called sexual exploitation, is inappropriate sexual behavior toward a client by a helping professional. Helping professionals include psychotherapists (psychiatrists, psychologists, social workers, mental health counselors, substance abuse counselors, pastoral counselors, etc.).”

The task force defined three types of sexual misconduct and exploitation as outlined in the booklet. These include the following:

Therapeutic Deception: “A helping professional implies that sexual contact is a legitimate form of treatment.”

Non-bona fide treatment: “A helping professional examines or treats a patient in a way that involves sexual contact, but there is no legitimate reason for the procedure or the procedure falls outside of reasonable health care practices.”

Sexually exploitative relationship: “Sexual contact occurs between a helping professional and client in a relationship that, on the surface, may appear to be mutually consensual, but the patient's role make it impossible for her or him to give meaningful consent.”

The matter of consent seems to be confusing for those that currently sit on the governing boards of Maryland's mental health professions. Last year during the HB 60 hearing, the Executive Director of the State Board of Professional Counselors and Therapists, Tracey DeShields, was asked by Delegate Smigiel, “Do you agree that a person in authority such as a counselor, or a psychologist, or a psychiatrist who has authority over a person, if they have sexual relations with them that can never be consensual?”

DeShield's shocking response was, “I don't know that you can argue that a therapist or a counselor actually has authority over an individual.”

Sinclair describes the imbalance of power, “If people want to know how much power mental health professionals have they should put it in context. Mental health professionals have the power to decide whether you can own a firearm, whether you're involuntarily hospitalized, whether you're compliant with probation, evaluating and determining whether you get custody and/or visitation of your children, whether you can become a foster parent or an adoptive parent, hold a security clearance, and many times they're expert witnesses in criminal trials. That's an awful lot of unregulated power that they hold.”

Perhaps those that sit on the boards, including the Board of Examiners of Psychologists and the Board of Social Work Examiners, need to be educated on their own material. Broken Boundaries goes on to explain, “By its nature, the relationship between helping professionals and their clients is unequal. Trusting that professionals have their best interests at heart, clients become vulnerable in the health care setting. ... Because they depend on professionals' trustworthiness, knowledge, and authority, clients tend to not question a professional's judgment or behavior. This places the professional in a position of power and can make the client susceptible to exploitation. … Sexual contact between a helping professional and a client is a misuse of power and a violation of the client's trust.”

DeShields was also asked about the differences between a therapist taking advantage of and having sex with a patient and other sexual relationships and she responded by chuckling and responding, “What's the difference?”

The difference is that sex without consent is rape, and this is why Lynette's Law is looking to criminalize sexual exploitation by mental health professionals. Already a crime in 27 states, Lynette's Law is actively working this year to pass legislation in Maryland, West Virginia, Virginia, and Pennsylvania, and is looking to clean up the existing law in Delaware.

Additionally, in reviewing the newest cases on the Board of Professional Counselors and Therapists' disciplinary actions page, Lynette's Law also discovered that there were required documents missing from the site. Sinclair explains what they discovered about these missing documents, “In the board's latest act of deception they are now voting to keep disciplinary charges of professionals private. I had to send in a PIA request to acquire information that is required to be listed publicly according to the law. I also discovered that several counties are employing unlicensed social workers through DHR (Department of Human Resources) to go into our public schools, which is a violation of COMAR (Code of Maryland Regulations).”

Overall, Heather Sinclair is optimistic about HB 33 passing this year in Maryland. “It's my hope that the boards learned a valuable lesson last session and that none of these organizations come out and oppose Lynette's Law this year, because I'm not going anywhere. This is just the start of a long journey into regulating the mental health profession and holding them to the highest legal and ethical standards possible. The quickest way to regulate the mental health profession and to make sure we weed out violent felons and sex offenders and to both prevent and end sexual exploitation by mental health professionals is through collaboration with DHMH and all the mental health boards. This collaboration needs to be carried out through consumer and professional education, victim advocacy, and a prohibition on gaining a license once it's been suspended or revoked regardless of state, especially for crimes of moral turpitude. Our non profit, the NAAEP (National Alliance Against Exploitation by Professionals) seeks to do all these things and I hope DHMH is willing to work with us in the future.”

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