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Legislative Advisory: SB 401 (Pan) Psychology: unprofessional conduct: disciplinary action: sexual acts. (Effective January 1, 2023).

SB 401 (Pan, Chapter 298 Statutes of 2022) was signed by Governor Newsom on September 13, 2022. This bill amends Business and Professions Code sections 2960 and 2960.1 to clearly define sexual abuse, sexual contact, and sexual misconduct–along with adding and defining sexual behavior–to the list of what is considered unprofessional conduct for licensed psychologists and registered psychological associates. This bill also clearly authorizes an Administrative Law Judge to include an order of revocation in a proposed decision that finds a licensee or registrant has engaged in sexual abuse, sexual behavior, or sexual misconduct.

SB 401 establishes the following definitions as unprofessional conduct:

“Sexual abuse” means the touching of an intimate part of a person by force or coercion.

“Sexual behavior” means inappropriate physical contact or communication of a sexual nature with a client or a former client for the purpose of sexual arousal, gratification, exploitation, or abuse. “Sexual behavior” does not include the provision of appropriate therapeutic interventions relating to sexual issues.

“Sexual contact” means the touching of an intimate part of a client or a former client.

“Sexual misconduct” means inappropriate conduct or communication of a sexual nature that is substantially related to the qualifications, functions, or duties of a psychologist or registered psychological associate.

This change in the law now clarifies the Board’s ability to allege conduct as sexually related unprofessional conduct where it previously could not. Examples include kissing a client in a romantic or sexual fashion; touching or exposing oneself inappropriately; sending flirtatious, sexually suggestive, or sexually explicit text messages or emails to a client; sending photos to a client that include nudity, genitalia, or sexually suggestive poses; or buying romantic/sexual gifts for a client.

When discussions related to sexual issues are a part of appropriate and documented therapeutic interventions, these communications would not be considered sexual behavior.