2004 Minnesota Statutes

CHAPTER 148A. Action for sexual exploitation; psychotherapists

     148A.01 Definitions. 

    Subdivision 1.    General.  The definitions in this 
 section apply to sections 148A.01 to 148A.04, 148A.05, and 
 148A.06. 

    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, marriage and family 
 therapist, mental health service provider, licensed professional 
 counselor, 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. 8.    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. 

    HIST: 1986 c 372 s 1; 1Sp1986 c 3 art 2 s 22; 1987 c 347 art 1 
 s 19; 2003 c 118 s 3 

     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.  

    HIST: 1986 c 372 s 2 

     148A.03 Liability of employer. 

    (a) An employer of a psychotherapist may be liable under 
 section 148A.02 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 148A.02 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 148A.02 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 this 
 section. 

    HIST: 1986 c 372 s 3 

     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. 

    HIST: 1986 c 372 s 4 

     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. 

    HIST: 1986 c 372 s 6 

     148A.06 Limitation period. 

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

    HIST: 1986 c 372 s 7