2.2.1: Sexual Misconduct Involving Patients

The privileges statutorily granted to all licensees by the Board puts them in a position of power in relation to the patient.  The patient enters the therapeutic relationship from a position of vulnerability due to illness, suffering, the need to divulge deeply personal information, and to subject themselves to intimate physical examination.  This vulnerability is further heightened in light of the patient’s trust in the licensee, who has demonstrated the training, knowledge, and character to be granted the privilege and the power to deliver medical care.  Due to the nature of their intimate involvement with patients, surrogates*** are hereinafter included in the term “patient” for the purpose of this policy.  It is the position of the Board that sexual misconduct involving a patient or a surrogate by a licensee is unprofessional conduct and undermines the public trust in the medical profession and harms patients both individually and collectively.  This Position Statement is based, in part, upon the Federation of State Medical Board’s guidelines regarding Physician Sexual Misconduct (“FSMB Guidelines”). 

For the purposes of this policy, licensee sexual misconduct is understood as behavior that exploits the licensee-patient relationship in a sexual way.  Sexual misconduct between a licensee and a patient is never diagnostic or therapeutic.  Sexual misconduct may be verbal or physical, can occur in person or virtually, and may include expressions of thoughts and feelings or gestures that are of a sexual nature or that reasonably may be construed by the patient as sexual.

Sexual misconduct occurs along a continuum of escalating severity.  This continuum comprises a variety of behaviors, sometimes beginning with “grooming” behaviors which may not seem to constitute sexual misconduct on their own, but are precursors to other, more severe violations such as sexual misconduct involving language, gestures, or physical touching.  Grooming behaviors may include gift-giving, special treatment, sharing of personal information, or other acts or expressions that are meant to gain a patient’s trust and acquiescence to subsequent abuse.  When the patient is a child, adolescent, or teenager, the patient’s parents may also be groomed to gauge whether an opportunity for sexual abuse exists.  All types of sexual misconduct could constitute a basis for disciplinary action by the Board.

More severe forms of sexual misconduct include sexually inappropriate or improper gestures or language that are seductive, sexually suggestive, disrespectful of patient privacy, or sexually demeaning to a patient.  These may not necessarily involve physical contact, but can have the effect of embarrassing, shaming, humiliating, or demeaning the patient. Instances of such sexual misconduct can take place in person, online, by mail, by phone, and through texting.  Examples may include, but are not limited to: 

1. Neglecting to employ disrobing or draping practices respecting the patient’s privacy, or deliberately watching a patient dress or undress;
2. Subjecting a patient to an intimate examination in the presence of students or other parties without the patient’s informed consent or in the event such informed consent has been withdrawn;
3. Examination or touching of genitals/genital mucosal areas without the use of gloves;
4. Inappropriate comments about or to the patient, including but not limited to, making sexual comments about a patient’s body or underclothing, making sexualized or sexually demeaning comments to a patient, criticizing the patient’s sexual orientation, or making comments about potential sexual performance during an examination;
5. Using the licensee-patient relationship to solicit a date or romantic relationship;
6. Initiation by the licensee of conversation regarding the sexual problems, preferences, or fantasies of the licensee;
7. Performing an intimate examination or consultation without clinical justification;
8. Performing an intimate examination or consultation without explaining to the patient the need for such examination or consultation even when the examination or consultation is pertinent to the issue of sexual function or dysfunction; and
9. Requesting details of sexual history or sexual likes or dislikes when not clinically indicated for the type of examination or consultation.

The severity of sexual misconduct increases when physical contact takes place between a licensee and patient and is explicitly sexual or may be reasonably interpreted as sexual, even if initiated by a patient.  Examples of physical sexual misconduct between a licensee and a patient includes, but is not limited to the following:

1. Sexual intercourse, genital to genital contact;
2. Oral to genital contact;
3. Oral to anal contact and genital to anal contact;
4. Kissing in a romantic or sexual manner;
5. Touching breasts, genitals, or any sexualized body part for any purpose other than appropriate examination or treatment, or where the patient has refused or has withdrawn consent;
6. Encouraging the patient to masturbate in the presence of the licensee or masturbation by the licensee while the patient is present (including in person, online, by phone, or through texting); and
7. Offering to provide practice-related services, such as drugs, in exchange for sexual favors.

Sexual misconduct may still occur following the termination of a licensee-patient relationship, especially in relationships that involve a high degree of emotional dependence and vulnerability.  Termination of a licensee-patient relationship solely for the purpose of allowing sexual contact to occur is unacceptable and would still constitute sexual misconduct.  

Licensees have the legal and ethical duty to report instances of sexual misconduct, instances of potential grooming behaviors, and other serious patient safety issues and events.  Early reporting of sexual misconduct will prevent a licensee’s sexual misconduct from impacting more patients.  

The Board also refers licensees to the Board’s Position Statement entitled “Guidelines for Avoiding Misunderstandings During Patient Encounters and Physical Examinations.”

***For the purposes of this policy “surrogate” is defined as spouses or partners, parents, guardians, or others involved in the care of and/or decision-making for the patient.