Minnesota Session Laws - 1986, Regular Session

  

                         Laws of Minnesota 1986 

                        CHAPTER 372-S.F.No. 1619 
           An act relating to civil and criminal actions; 
          providing a cause of action for sexual exploitation; 
          providing new procedures for enforcing restitution 
          orders; amending Minnesota Statutes 1984, section 
          609.135, by adding a subdivision; proposing coding for 
          new law as Minnesota Statutes, chapter 148A. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  [148A.01] [DEFINITIONS.] 
    Subdivision 1.  [GENERAL.] The definitions in this section 
apply to sections 1 to 6.  
    Subd. 2.  [EMOTIONALLY DEPENDENT.] "Emotionally dependent" 
means that 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. 
    Subd. 3.  [FORMER PATIENT.] "Former patient" means a person 
who was given psychotherapy within two years prior to sexual 
contact with the psychotherapist. 
    Subd. 4.  [PATIENT.] "Patient" means a person who seeks or 
obtains psychotherapy. 
    Subd. 5.  [PSYCHOTHERAPIST.] "Psychotherapist" means a 
physician, psychologist, nurse, chemical dependency counselor, 
social worker, member of the clergy, or other person, whether or 
not licensed by the state, who performs or purports to perform 
psychotherapy. 
    Subd. 6.  [PSYCHOTHERAPY.] "Psychotherapy" means the 
professional treatment, assessment, or counseling of a mental or 
emotional illness, symptom, or condition.  
    Subd. 7.  [SEXUAL CONTACT.] "Sexual contact" means any of 
the following, whether or not occurring with the consent of a 
patient or former patient: 
    (1) 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 this 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 this purpose, if agreed to by the psychotherapist; 
    (2) 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; 
    (3) 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 clauses (1) to (3). 
    "Sexual contact" does not include conduct described in 
clause (1) or (2) that is a part of standard medical treatment 
of a patient.  
    Subd. 9.  [THERAPEUTIC DECEPTION.] "Therapeutic deception" 
means 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. 
    Sec. 2.  [148A.02] [CAUSE OF ACTION FOR SEXUAL 
EXPLOITATION.] 
    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; or 
    (2) after the period the patient received 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. 
    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.  
    Sec. 3.  [148A.03] [LIABILITY OF EMPLOYER.] 
    (a) An employer of a psychotherapist may be liable under 
section 2 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. 
    (b) An employer or former employer of a psychotherapist may 
be liable under section 2 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. 
    (c) An employer or former employer may be liable under 
section 2 only to the extent that the failure or refusal to take 
any action required by paragraph (a) or (b) was a proximate and 
actual cause of any damages sustained. 
    (d) 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 
section 3. 
    Sec. 4.  [148A.04] [SCOPE OF DISCOVERY.] 
    In an action for sexual exploitation, evidence of the 
plaintiff's sexual history is not subject to discovery except 
when the plaintiff claims damage to sexual functioning; or 
    (1) the defendant requests a hearing prior to conducting 
discovery 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. 
    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. 
     Sec. 5.  Minnesota Statutes 1984, section 609.135, is 
amended by adding a subdivision to read: 
    Subd. 1a.  [FAILURE TO PAY RESTITUTION.] If the court 
orders payment of restitution as a condition of probation and if 
the defendant fails to pay the restitution ordered prior to 60 
days before the term of probation expires, the defendant's 
probation officer shall ask the court to hold a hearing to 
determine whether or not the conditions of probation should be 
changed or probation should be revoked.  The court shall 
schedule and hold this hearing and take appropriate action 
before the defendant's term of probation expires. 
    Sec. 6.  [148A.05] [ADMISSION OF EVIDENCE.] 
    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. 
    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. 
    Violation of the terms of the order may be grounds for a 
new trial. 
    Sec. 7.  [148A.06] [LIMITATION PERIOD.] 
    An action for sexual exploitation shall be commenced within 
five years after the cause of action arises. 
    Sec. 8.  [EFFECTIVE DATE; APPLICATION.] 
    Sections 1 to 7 are effective August 1, 1986, and sections 
1 to 7 apply to causes of action arising on or after that date. 
    Approved March 19, 1986