| (a) For the purpose of this section, the following
terms have the following meanings.
(1) "Mental health provider" means a licensee or any
other licensed mental health professional, including a licensed social
worker, a chemical dependency counselor, a licensed marriage and family
therapist, a physician, a psychologist, or a member of the clergy.
Mental health provider also includes employees of these individuals
or employees of a treatment facility.
(2) Sexual contact means:
(A) deviate sexual intercourse as defined by the Texas
Penal Code, §21.01;
(B) sexual contact as defined by the Texas Penal Code, §21.01;
(C) sexual intercourse as defined by the Texas Penal
Code, §21.01; or
(D) requests or offers by a licensee for conduct described
by subparagraph (A), (B), or (C) of this paragraph.
(3) "Sexual exploitation" means a pattern, practice,
or scheme of conduct, including sexual contact, that can reasonably
be construed as being for the purposes of sexual arousal gratification
or sexual abuse of any person. The term does not include obtaining
information about a client's sexual history within standard accepted
practice while treating a sexual or relationship dysfunction.
(4) "Therapeutic deception" means a representation
by a licensee that sexual contact with, or sexual exploitation by,
the licensee is consistent with, or a part of, a client's or former
client's counseling.
(b) A licensee must not engage in sexual contact with
or sexual exploitation of a person who is:
(1) a client;
(2) an LPC Associate supervised by the licensee; or
(3) a student of a licensee at an educational institution
at which the licensee provides professional or educational services.
(4) Sexual contact that occurs more than five years
after the termination of the client relationship, cessation of supervision
of an LPC Associate, or termination of professional or educational
services provided to a student of the licensee at a post-secondary
educational institution will not be deemed a violation of this section,
if the conduct is consensual, not the result of sexual exploitation,
and not detrimental to the client. The licensee must demonstrate there
has been no exploitation in light of all relevant factors, including,
but not limited to:
(A) the amount of time that has passed since therapy
terminated;
(B) the nature and duration of the therapy;
(C) the circumstances of termination;
(D) the client's, LPC Associate's, or student's personal
history;
(E) the client's, LPC Associate's, or student's current
mental status;
(F) the likelihood of adverse impact on the client,
LPC Associate, or student and others; and
(G) any statements or actions made by the licensee
during the course of therapy, supervision, or educational services
suggesting or inviting the possibility of a post-termination sexual
or romantic relationship with the client, LPC Associate, or student.
(c) A licensee must not practice therapeutic deception
of a client.
(d) It is not a defense under subsections (b) - (c)
of this section, the sexual contact, sexual exploitation, or therapeutic
deception with the client, LPC Associate, or student occurred:
(1) with the consent of the client, LPC Associate,
or student;
(2) outside the professional counseling sessions of
the client or student; or
(3) off the premises regularly used by the licensee
for the professional, supervisory, or educational services provided
to the client, LPC Associate, or student.
(e) The following may constitute sexual exploitation
if done for the purpose of sexual arousal or gratification or sexual
abuse of any person:
(1) sexual harassment, sexual solicitation, physical
advances, or verbal or nonverbal conduct that is sexual in nature,
and:
(A) is offensive or creates a hostile environment,
and the licensee knows, should know, or is told this; or
(B) is sufficiently severe or intense to be abusive
to a reasonable person in the context;
(2) any behavior, gestures, or expressions which may
reasonably be interpreted as seductive or sexual;
(3) sexual comments about or to a person, including
making sexual comments about a person's body;
(4) making sexually demeaning comments about an individual's
sexual orientation;
(5) making comments about potential sexual performance
except when the comment is pertinent to the issue of sexual function
or dysfunction in counseling;
(6) requesting details of sexual history or sexual
likes and dislikes when not necessary for counseling of the individual;
(7) initiating conversation regarding the sexual problems,
preferences, or fantasies of the licensee;
(8) kissing or fondling;
(9) making a request for a date;
(10) any other deliberate or repeated comments, gestures,
or physical acts not constituting sexual intimacies but of a sexual
nature;
(11) any bodily exposure of genitals, anus or breasts;
(12) encouraging another to masturbate in the presence
of the licensee; or
(13) masturbation by the licensee when another is present.
(f) A licensee must report sexual misconduct as follows:
(1) If a licensee has reasonable cause to suspect a
client, LPC Associate, or student has been the victim of sexual exploitation,
sexual contact, or therapeutic deception by another licensee or a
mental health provider, or if a client, LPC Associate, or student
alleges sexual exploitation, sexual contact, or therapeutic deception
by another licensee or a mental health services provider, the licensee
must report the alleged conduct not later than the third business
day after the date the licensee became aware of the conduct or the
allegations to:
(A) the prosecuting attorney in the county in which
the alleged sexual exploitation, sexual contact or therapeutic deception
occurred; and
(B) the Council and any other state licensing agency
which licenses the mental health provider if the conduct involves
a licensed individual.
(2) Before making a report under this subsection, the
reporter must inform the alleged victim of the reporter's duty to
report and must determine if the alleged victim wants to remain anonymous.
(3) A report under this subsection must:
(A) identify the reporter;
(B) identify the alleged victim, unless the alleged
victim has requested anonymity;
(C) express suspicion sexual exploitation, sexual contact,
or therapeutic deception occurred; and
(D) provide the name of the alleged perpetrator.
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