[Volokh] Eugene Volokh: Sex and the Massage Therapist:

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Posted by Eugene Volokh:
Sex and the Massage Therapist:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168045584


   In re Fjellman, 2006 WL 3147575 (Minn. Off. Admin. Hrgs. Sept. 11),
   authorizes disciplinary action against a massage therapist for having
   a sexual relationship with an ex-client several months after she
   stopped treating him. (They married a year later.)

   Minnesota law bars a wide range of "health care practitioner[s]" --
   including massage therapists (I mean the legit ones, not prostitutes
   claiming to be masseuses) -- from "Engaging in sexual contact with a
   complementary and alternative health care client or former client,"
   with "former client" covering any client who has gotten services from
   the practitioner "within the past two years." Fjellman raised a
   constitutional objection, but the administrative agency concluded that
   it "lacks authority to declare a statute unconstitutional on its
   face," and that Fjellman had to raise the question in court. I don't
   know whether Fjellman plans to litigate this further.

   1. I understand why the government might want to bar sexual conduct
   between psychotherapists and patients or even former patients
   (especially recently former patients). But massage therapists seem
   pretty far removed from psychotherapists. They don't try to give
   advice about a person's life, they aren't generally privy to the
   patient's innermost secrets. They aren't trusted by the patient for
   guidance (other than perhaps guidance about specific maladies of the
   sort that massage can fix).

   It's hard to see how a sexual relationship between a massage therapist
   and a former patient is especially likely to be improper. Sure,
   there's some risk of psychological manipulation and other unsavory
   behavior -- but no more, I think, than in any relationship between two
   adults.

   2. Likewise, I understand why the government might want to bar sexual
   conduct between doctors or lawyers and their clients: The client may
   be dependent on the doctor's or lawyer's services, and may fear very
   serious harms if the relationship sours (at least in certain
   situations). So it's possible that the professional might try to
   leverage this dependence into sexual favors, in situations where the
   client's ability to resist is limited. Yet dooes that seem terribly
   likely as to massage therapists? If you think your massage therapist
   is improperly pressuring you, how hard is it to just switch to another
   massage therapist?

   (The possible concern about the sexual relationship distorting the
   professional's judgment strikes me as less significant, at least
   setting aside unusual cases such as serious surgery. This sort of
   distortion may happen even with preexisting sexual or family
   relationships, yet we generally don't bar lawyers from providing legal
   services for spouses or close family members, nor should we. Among
   other things, help from someone who's close with you may be especially
   effective, because you may have more reason to trust the person.)

   3. One could certainly argue that it's more convenient for the
   government to lay down a flat rule barring all sexual contact between
   "health professionals" and clients or even former clients, rather than
   drawing distinctions between psychotherapists, surgeons, and massage
   therapists. But convenient as such a rule may be, is it really fair,
   given that a person's choice of romantic and sexual companion -- or
   for that matter, spouse, as ultimately happened in this case -- is
   pretty important in their lives, and is normally the sort of thing
   that the government ought not try to control? Wouldn't allowing more
   romantic, sexual, and marital freedom be reason enough to try to draw
   some finer distinctions?

   4. Finally, so far I've talked only about the policy questions, but
   there is an important policy dimension here. Under Lawrence v. Texas,
   there are some limits on the government's authority to control
   people's sex lives; it's far from clear what test Lawrence announces,
   but it seems to me at least plausible that Lawrence does constrain
   this sort of interference with people's sexual autonomy, especially
   when it comes to relationships with ex-clients. (If the ban was only
   on relationships with current clients, the burden on sexual autonomy
   would be modest; you'd just have to terminate the professional
   relationship. But the ban on relationships with ex-clients can't be
   avoided this way; any possible sexual relationship will be suspended
   by two years, no matter what you do.)

   But even if you disapprove of Lawrence, what about the right to marry?
   Set aside the same-sex marriage debate, and focus on the right to
   marry an adult of the opposite sex who's not your close relative --
   the right that the Court has largely uncontroversially recognized for
   four decades. This right has generally been understood as involving a
   right to actually consummate the marriage; yet this law bans even that
   -- even if Ms. Fjelmman had abstained from sex before her marriage,
   sex on the wedding night, which happened 16 months after the end of
   the relationship, would have remained forbidden. (Yes, the ban only a
   total of lasts two years, but that's not exactly the blink of an eye.)

   To justify such an interference with people's constitutional right to
   marry, shouldn't the government need some pretty serious evidence that
   the sex would lead to some harm, and not just a vague analogy between
   massage therapists and psychotherapists?