[Volokh] Eugene Volokh: Marriage (and Sexual Autonomy) in Washington State:

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Posted by Eugene Volokh:
Marriage (and Sexual Autonomy) in Washington State:
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1169250598


   Say you live in Washington State, and you find yourself getting to
   know and becoming attracted to your dental hygienist -- or for that
   matter your optician (that's the person who fits your eyeglasses,
   based on the prescription provided by your optometrist). You're
   interested in a romantic relationship, a sexual relationship, perhaps
   even marriage. You're both consenting adults, you think, right? You
   have a right to marry, and even a right to have sex (given Lawrence v.
   Texas).

   Apparently not. Let's see how Washington law treats this.

   1. Under [1]Washington Administrative Code 246-16-020, your dental
   hygienist and your optician are "health care providers." This means
   that, under [2]Washington Administrative Code 246-16-100, they "shall
   not engage, or attempt to engage, in sexual misconduct with a current
   patient." Sexual misconduct "includes but is not limited to" sex,
   kissing, "[h]ugging ... of a romantic ... nature," "[s]uggesting or
   discussing the possibility of a dating, sexual or romantic
   relationship after the professional relationship ends," "[t]erminating
   a professional relationship for the purpose of dating or pursuing a
   romantic or sexual relationship," or "[m]aking statements regarding
   the patient['s] ... body, appearance, sexual history, or sexual
   orientation other than for legitimate health care purposesamong many
   other things."

   OK, you say, no problem; you should just switch to a different dental
   hygienist or optician, and then start dating. Perhaps banning
   optician-client relationships is going a bit far, but it's hardly a
   big burden on people's romantic, sexual, or marital choices.

   2. No dice! Subsection (3) of the provision states that "A health care
   provider shall not engage, or attempt to engage" in any of these
   activities "with a former patient, client or key party within two
   years after the provider-patient/client relationship ends." Two years,
   not a short time. If you do want to date your former dental hygienist
   or optician, you can't even kiss them until two years after you leave
   their practice. Or, to be precise, you can kiss them, and they can
   kiss you back -- if they are willing to risk professional discipline
   and possibly loss of their livelihood, a pretty serious burden.

   3. But wait; maybe before you leave them and wait the two years, you
   ought to get a sense of whether they're even interested, no? Except
   that even if you ask whether they're potentially interested, their
   answer has to be:

     I'm sorry, but I can't discuss the possibility of a relationship
     after the professional relationship ends.

   Of course, this restriction does end two years after the professional
   relationship ends. So two years after switching dental hygienists or
   opticians, you can call up the person and say, "Hey, remember me, from
   two years ago? I only stopped coming to your office so that I could
   wait two years and then ask you out. So, are you interested?" At that
   point, they can start a relationship with you -- or say, "oh, sorry
   you had to stay away for two years, but I don't think it would work
   out between us."

   4. Actually, can they start a relationship with you, even two years
   later? Well, not if "(a) There is a significant likelihood that the
   patient ... will seek or require additional services from the health
   care provider; or (b) There is an imbalance of power, influence,
   opportunity and/or special knowledge of the professional
   relationship." How should the hygienist or optician think this
   through? Let's skip item (a), though even that's troublesome enough
   (since if a relationship does develop, you might well ask your lover
   or spouse for some professional help, as lovers and spouses often do).

   Instead, consider (b): Is there an imbalance of "power, influence,
   opportunity and/or special knowledge of the professional
   relationship"? It's hard to grasp what "special knowledge of the
   professional relationship" means, but if the question is whether
   there's an imbalance of "special knowledge," the answer would likely
   be "yes": All professionals, including dental hygienists and
   opticians, have special knowledge others don't have.

   And what about "influence" or "opportunity"? Say the optician is a
   relatively well-paid small businessman, and you're poorer or less
   well-educated. The optician may well have more influence and
   opportunity than you do. He may not have nearly enough to threaten you
   or coerce you, but that's not the test; the question is just whether
   there's "an imbalance of ... influence [or] opportunity." Does an
   optician making a comfortable living have influence and opportunity
   that's "balance[d]" with that of, say, someone who's working as a
   waitress for minimum wage? Probably not. And if that's so, then that
   means the optician and waitress can'd date even after the two years
   have passed.

   Of course, maybe the rule is meant to capture something less than all
   "imbalance of power, influence, opportunity and/or special knowledge."
   Perhaps eventually it will be interpreted more narrowly than it seems
   to be written. But in the meantime, the optician or hygienist who is
   contemplating whether to have the relationship with you risks losing
   his or her livelihood should he or she guess wrong about what the law
   means.

   5. More: The rule applies not just to relationships with clients, but
   also with any [3]"key party", which includes "immediate family members
   and others who would be reasonably expected to play a significant role
   in the health care decisions of the patient or client and includes,
   but is not limited to, the spouse, domestic partner, sibling, parent,
   child, guardian and person authorized to make health care decisions of
   the patient or client."

   Say you're a single doctor; you get to know your patient; and through
   the patient, you get to know the patient's sister, whom you find
   yourself romantically interested in. Can you ask her out (either while
   you're seeing the patient, or for two years afterwards)?

   Well, if "who would be reasonably expected" applies only to "others,"
   and not to "immediate family members," then immediate family members
   are off-limits to you, period, no matter whether they play a role in
   the patient's health care decisions.

   But say even that "key party" includes only those immediate family
   members who would be reasonably expected to play a significant role in
   the patient's health care decisions. And say that the patient's sister
   is herself a doctor or a nurse. The patient's sister would surely be
   "reasonably expected to play a significant role in the health care
   decisions of the patient" -- people routinely rely on medically
   trained family members' advice in making health care decisions.

   So no dice with the patient's sister. You can't marry her. You can't
   have sex with her. You can't ask her on a date. You can't even say she
   looks nice (that's "[m]aking statements regarding the ... key party's
   ... appearance"). You can't do this while you treat the patient. You
   can't do it for two years afterwards. You can't do it even two years
   afterwards, if "[t]here is an imbalance of power, influence,
   opportunity and/or special knowledge of the professional relationship"
   (between you and the patient, or you and the sister? who knows?). And
   of course you can't transfer the patient to another caregiver so that
   the two-year clock starts ticking, since that would be "[t]erminating
   a professional relationship for the purpose of dating or pursuing a
   romantic or sexual relationship."

   6. While we're at it, if you run into one of your patient's at a party
   or some other function, make sure you never say that the patient looks
   nice, since that's "[m]aking [a] statement[] regarding the ... key
   party's ... appearance."

   7. And if you're the professional involved, don't just worry that
   these rules will apply to you only if the patient (or the other "key
   party" involved) complains. No matter how good your relationship with
   the person you're seeing, no matter how nonacrimonious any possible
   breakup, no matter how carefully you make sure that you only date
   people who won't want to jeopardize your career, someone else may file
   the complaint -- say, a jealous ex of one of the people involved,
   which is what happened [4]in this Minnesota case -- and you may get
   disciplined even if the allegedly wronged party is entirely on your
   side (in fact, is now your loving spouse).

   8. Of course I know that medical relationships offer room for various
   kinds of abuses. In some situations, it may be proper to interfere
   with people's right to marry, and their sexual and romantic autonomy,
   in order to prevent those abuses. We can talk about
   psychotherapist-client (or -ex-client) relationships, or relationships
   between doctors and current patients, or other circumstances where the
   risk of subtle coercion or unprofessional behavior is especially high
   (which is to say materially higher than the risk of subtle coercion
   and other harms in any sexual relationship).

   But the trouble here is that the rules go vastly further than these
   special situations, and vastly undervalue the countervailing reasons
   to limit regulation -- people's right to choose whom to date, have sex
   with, and marry, even including their dental hygienists, opticians,
   and the like. So much for the right to marry; so much for sexual
   autonomy; so much for consenting adults deciding whom to love, without
   the fear of losing their livelihood.

References

   1. http://apps.leg.wa.gov/WAC/default.aspx?cite=246-16-020
   2. http://apps.leg.wa.gov/WAC/default.aspx?cite=246-16-100
   3. http://apps.leg.wa.gov/WAC/default.aspx?cite=246-16-020
   4. http://volokh.com/posts/1168045584.shtml