Sexual Misconduct and Prohibited Sexual Activity

About 29 minutes · ss. 480.0485, 480.043(14)(a), 480.046(1)(e) and (3)–(5), F.S.; ss. 456.063 and 456.072(1)(v), F.S.; Rules 64B7-23.005 and 64B7-26.010, F.A.C. (definition of "sexual activity": see Chapter 2)

16.1 A relationship built on trust

Section 480.0485 is one of the shortest provisions in the Act and one of the most serious. It begins with a sentence that explains the whole subject: "The massage therapist-patient relationship is founded on mutual trust." A client lies partly undressed, under a sheet, with limited ability to protect themselves, because the client trusts that the therapist will behave professionally. Sexual misconduct is the abuse of that position.

The statute then defines the wrong. "induce or engage a patient in sexual activity outside the scope of practice.">Sexual misconduct in the practice of massage therapy means violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient." And it closes: "Sexual misconduct in the practice of massage therapy is prohibited."

Read the definition as four elements:

1. A relationship between therapist and patient.
2. Use of that relationship: the therapist is exploiting the position, not merely encountering the client socially.
3. Conduct aimed at sexual activity: to induce, to attempt to induce, to engage, or to attempt to engage. Notice the word attempt appears twice. A therapist who tries and fails has still committed the violation.
4. Outside the scope of practice or of generally accepted examination or treatment. Chapters 3 and 10 described that scope: assessment, informed consent, appropriate draping, and treatment of soft tissue. Sexual activity is never within it.

"Sexual activity" has the broad statutory meaning taught in Chapter 2: contact with a sexual purpose or likely effect, with or without consent, with or without verbal or non-verbal indications that it is unwanted, and including the removal of a drape without specific written informed consent. Because consent is not part of the definition, a client's agreement, invitation or initiative is not a defense. The law places the responsibility on the professional, who holds the power in the relationship.

16.2 Why consent is not a defense

Students are often surprised that the statute's definition of sexual activity applies with or without consent. The surprise is understandable, because in ordinary life consent changes everything. In a professional relationship, the law takes a different view, and it is worth understanding why.

Power is unequal in the treatment room. The therapist chooses the setting, controls the session, is dressed while the client is not, and has knowledge and authority the client lacks. A client who is relaxed, partly undressed and in a vulnerable physical state cannot easily judge or resist a professional's advances, and may feel unable to say no. A rule that depended on whether the client said yes would put the burden on the person with less power.

Trust can be exploited without force. Misconduct in a professional relationship often does not look like violence. It may look like flattery, special attention or a suggestion that something extra is part of the service. A client who agrees may feel confused, pressured or ashamed later. The law avoids asking whether the client truly agreed and focuses on the professional's duty.

The professional is responsible. The statute defines the wrong as the therapist using the relationship to induce or attempt to induce, or to engage or attempt to engage, the patient in sexual activity outside the scope of practice. The focus is on what the therapist did. A client's invitation, initiative or apparent enthusiasm does not change what the therapist is permitted to do.

The rule protects therapists as well. A clear bright line is easier to follow than a case-by-case judgment about consent. A therapist who knows that no sexual activity is ever within the scope of practice does not have to decide, in an ambiguous moment, whether a client really means it. She can state the boundary and end the session.

The rule protects the profession. Clients choose massage therapy because they believe the setting is safe. Each breach harms the person involved and also weakens public confidence in every therapist.

What consent does not do. It does not remove the therapist's liability, and it does not remove the establishment's liability. It also does not make a conduct that is outside the scope of practice acceptable because it happens after hours or off the premises, if the therapist used the relationship to bring it about.

None of this means that clients are blamed for being human. A client who makes an advance has not violated the statute by that act, as the scenario at the end of this chapter shows. The therapist's response is what the law examines.

16.3 The general rule in Chapter 456

Because a massage therapist is a health care practitioner (Chapter 2), a second statute applies as well. Section 456.063(1) defines sexual misconduct in the practice of a health care profession as "violation of the professional relationship through which the health care practitioner uses such relationship to engage or induce or engage in sexual activity, even if it fails.">attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client, in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited."

The general definition is broader than the massage statute in two ways that matter:

• It reaches "verbal or physical" sexual activity. Sexual propositions, sexualized remarks and similar conduct can be misconduct even without touching.
• It extends to the client's family, guardian or representative. Using your position to pursue a client's spouse or parent, for example, is covered.

The two statutes operate together. Engaging or attempting to engage in sexual misconduct as defined in s. 456.063(1) is also an independent ground for discipline under s. 456.072(1)(v), which Chapter 18 lists with the other grounds. The practical rule is to treat the broader definition as your standard of conduct.

16.4 A spectrum of conduct

Professional boundaries are easier to keep when you can see where the lines are. The table below sorts examples of conduct into three groups. It is a teaching aid and not a legal list, and it uses plain, non-graphic descriptions.

Two lessons come from the table.

Misconduct rarely begins at the third column. It usually begins with a small step in the second column. A therapist who notices that her behavior is in the second column should treat it as an alarm. Return at once to clear, clinical communication, and consider talking with a trusted colleague or supervisor.

The first column is a skill. Professional conduct is not just the absence of misconduct. It is a set of habits: clear explanations, secure draping, courteous language and calm responses. Practice them until they are automatic.

A related point concerns clients who are also friends, acquaintances or family. If you treat a person with whom you have a personal relationship, the boundary between the personal and the professional is harder to hold. Many therapists decline to treat close friends or partners for that reason. The text reviewed for this course does not prohibit treating a friend, but the statutes focus on the use of the professional relationship, and a therapist who treats someone she is attracted to places herself in a position that needs great care.

16.5 The Board's rule on personal conduct: Rule 64B7-23.005

The Board has implemented the statute in sexual activity and misconduct in practice.">Rule 64B7-23.005, "Sexual Misconduct; Sexual Activity Prohibited." Its operative provisions are:

• Subsection (2): "Sexual activity by any massage therapist in the context of massage therapy practice or in a massage therapy establishment is prohibited."
• Subsection (3): "A licensed massage therapist must not use the therapist-client relationship to induce or attempt to induce or engage or attempt to engage in sexual activity with any client. Such attempts or engagements constitute therapist-patient relationship to induce or engage a patient in sexual activity outside the scope of practice.">sexual misconduct in the practice of massage therapy."
• Subsection (4): nothing in the rule prohibits a licensed therapist, certified under Rule 64B7-25.001, from practicing colonic irrigation (Chapter 7).

Subsection (1) restates the definition of sexual activity almost word for word from the statute (Chapter 2), using the phrase "any person" where the statute uses "any employee or person." Where the wording of a rule and a statute differ slightly, the statute governs (Chapter 1), and in practice both are to be read as prohibiting the same conduct.

The colonic irrigation provision is a clarification, not a loophole. Colonic irrigation is a licensed procedure with its own certification, equipment and sterilization rules. The rule simply prevents the broad prohibition from being misread to forbid a lawful, certified procedure.

16.6 Words you can use: setting a boundary calmly

Therapists tell students that the hardest part of boundary setting is the first sentence. Having words ready makes it easier to speak up without panic. The examples below are models, and each therapist should adapt them to her own voice. Tone matters as much as words. Speak calmly, clearly and without apology or anger.

When a client makes a sexual remark. "I want to keep our work professional. Let's get back to your shoulders."

When a client asks for a sexual service. "That is not something I offer, and it is not part of massage therapy. If you would like to continue with a professional session, I am happy to. Otherwise, we will end the session here."

When a client touches you inappropriately. Stop, step back and say, "Stop. That is not acceptable. This session is over." Then leave the room if you need to, and make sure you are safe.

When a client will not accept a boundary. "I am ending the session now. Please get dressed, and I will wait outside." Do not argue. Do not charge for the remainder of the session unless your policy provides otherwise and you are comfortable with it.

When a client asks to be undraped. "The law requires that I keep certain areas covered at all times unless there is written specific consent, and I do not do that kind of work in this session. I can work around the drape." If the request is made in a way that suggests a sexual purpose, treat it as an advance.

When a client asks for your personal contact information. "I keep all client communication through the studio's scheduling system." Having a standard answer lets you say it to every client without feeling that you are singling anyone out.

When a client says something that makes you uncomfortable but is not clearly improper. "I am not comfortable with that topic. Let's talk about something else, or we can continue in silence."

When a coworker makes a comment about a client. "That is not appropriate. Please stop." If it continues, tell the manager.

Three principles run through the examples. Be clear, not harsh. A calm tone is more effective than an angry one, and it protects you if the situation is later reviewed. Be consistent. Say the same thing to every client in the same situation. And be ready to leave. You may end any session if you feel unsafe or uncomfortable, and your safety matters.

After any incident, write down what happened, as soon as you can, in plain words: the date, time, what was said, what you said and did, and who you told. Do not exaggerate or speculate. Keep the note confidential, and share it with the manager or owner as the establishment's procedure directs.

16.7 Sexual activity on the premises

The second layer concerns the establishment itself. It rests on the 2024 amendments to s. 480.043(14)(a) and on the Board's rule.

The statute. "Sexual activity in a massage establishment is prohibited. An establishment owner or employee may not engage in or allow any person to engage in sexual activity in the establishment or use the establishment to make arrangements to engage in sexual activity in another location. Used or unused condoms are prohibited in a massage establishment."

Three features distinguish this layer from the personal-conduct rule:

• No client relationship is required. The prohibition applies to any sexual activity in the establishment, whoever is involved: two employees, two clients, a therapist and a stranger. Chapter 2 explained why the definition of sexual activity reaches contact between employees as well.
• "Allow" is enough. The owner or employee may not engage in sexual activity or allow any person to. An owner who looks away, or an employee who knows and says nothing, is within the prohibition.
• "Use the establishment to make arrangements." The violation can occur without any sexual activity on the premises if the premises are used to arrange it elsewhere: a phone call, a message, an introduction, a booking.

Condoms. The statute prohibits "used or unused" condoms in the establishment, and the manager's rule repeats the point (Rule 64B7-26.0035(3)(g)3., Chapter 12). The aim is to remove a common indicator of illicit activity and to give inspectors a clear, objective test. The prohibition does not turn on why the item is there.

The Board's rule. Rule 64B7-26.010 adds a parallel set of provisions:

• sexual activity in any massage establishment is "absolutely prohibited" (subsection (2));
• no establishment owner shall engage in or permit any employee, person or persons to engage in sexual activity in the owner's establishment or use it to make arrangements to engage in sexual activity in any other place (subsection (3));
• no establishment owner or employee shall do so (subsection (4)); and
• colonic irrigation by a qualified therapist is not prohibited (subsection (5)).

The repetition is deliberate. It places the prohibition in two parts of the Board's rules and in the statute, so that no gap exists between the therapist's personal duties and the establishment's duties.

16.8 Building an establishment policy that works

A prohibition in the statute is only as effective as the culture and procedures behind it. An establishment that wants to prevent misconduct, and to respond correctly if it occurs, should have a written policy that every person who works there knows. The following structure is a model.

Statement of principle. "This establishment prohibits sexual misconduct and sexual activity. We treat every client and every worker with respect. No one will be punished for reporting a concern in good faith."

Definitions in plain words. Summarize what is prohibited: any sexual activity in the establishment or in the context of massage therapy practice; any use of the therapist-client relationship to induce or engage in sexual activity; sexual remarks to clients, family members or coworkers; use of the establishment to arrange sexual activity elsewhere; and keeping condoms, used or unused, on the premises.

What to do if a client makes an advance. Stop, state the boundary, end the session if necessary, write down what happened and tell the manager.

How to report a concern. Name the manager and a backup. State that a worker may also contact the Department, and that she may contact law enforcement in an emergency. Explain that a worker may report a concern about the manager directly to the Department.

The manager's duties. State that when the manager receives a report of potential sexual misconduct or sexual activity, she will report it to the Department within three days, preserve records and avoid conducting her own investigation. State that the manager will also consider whether the human trafficking procedure applies.

Protecting people who report. State that no one will be retaliated against for a good-faith report. Explain that retaliation is itself a violation of the policy.

Support for the person who reports. Offer to listen, to help with documentation and to provide information about resources.

Training. State that every new worker reviews the policy before working, and that everyone reviews it once a year. Keep a record of each review.

Consequences. State that violations will be reported to the Department and may result in termination and other consequences.

Updates. State that the manager reviews the policy yearly.

Beyond the document, three practices make the policy real. First, the owner and manager model the behavior. Staff notice what leaders say and do. Second, the manager acts on concerns promptly. A report that is ignored teaches workers that reporting is pointless. Third, the establishment checks its own practices: displays, records, hours and the other operating rules. An establishment that follows the rules in Chapter 13 has already closed many opportunities for misconduct.

16.9 The manager's three-day clock, day by day

The manager's duty to report a potential violation within three days is among the shortest deadlines in the Act. A manager who has thought through the days in advance is far less likely to miss it. The sequence below is a model, not a legal form.

Day zero: the report arrives. A client, a worker or anyone tells the manager of a possible sexual misconduct or sexual activity violation. The manager listens, thanks the person and does not promise any particular outcome. She writes down what she was told, in the person's own words as nearly as possible, with the date and time. She does not ask leading questions or try to investigate. If anyone is in immediate danger, she calls 911.

Day zero, later: secure the facts. The manager preserves relevant records, such as schedules, service logs and messages, without altering them. She does not discuss the matter with other staff beyond what is necessary. If the person who is the subject of the report is working, the manager considers whether anyone is at risk, and takes sensible steps, such as adjusting schedules, to keep people safe while the matter is reported.

Day one: prepare the report. The manager identifies how to report to the Department and gathers the facts she was told: who, what, when and where. She does not need proof. A potential violation is enough to trigger the duty. She considers whether the human trafficking procedure also applies, and if so, contacts the hotline or law enforcement.

Day two: make the report. She submits the report to the Department and keeps a copy and proof of submission. If she is unsure how to submit, she asks the Department that day. She also records the report in a confidential file.

Day three: the deadline. The report must be made no later than the third day. If for any reason it cannot be made, the manager should contact the Department at once, explain the situation and ask what to do. She should not let the deadline pass in silence.

After the report. The manager cooperates with any Department request, preserves records and continues to protect the safety of staff and clients. She does not retaliate against anyone who reported, and she does not discuss the matter with people who do not need to know. She also remembers her own duty under section 456.063(3), as a licensed practitioner, to report allegations of sexual misconduct to the Department.

What the manager must not do. She must not wait to see whether the person has a good explanation, must not pressure the person who reported to withdraw, must not alter or destroy records and must not tell the subject of the report to leave town or hide. Each of those steps can make the situation much worse.

Why the clock is short. The Legislature set a short deadline so that serious allegations reach the Department quickly, where trained investigators can evaluate them. A manager is not the investigator. Her job is to relay the information and to keep people safe.

16.10 Duties to report

Two separate reporting duties apply, and licensees often overlook them.

Every licensed practitioner. Section 456.063(3) provides: "Licensed health care practitioners shall report allegations of sexual misconduct to the department, regardless of the practice setting in which the alleged sexual misconduct occurred." Three points matter:

• It speaks of allegations. You do not have to prove misconduct or be certain; a credible allegation brought to your attention is enough to trigger the report.
• It applies in any practice setting, whether the conduct occurred in your establishment, a different one, or an out-call setting.
• It applies to you as a licensed health care practitioner, whether or not you are a manager.

A failure to report a person the licensee knows is violating Chapter 456, the practice act or the rules is itself a ground for discipline (s. 456.072(1)(i), Chapter 18).

The designated establishment manager. A therapist serving as manager must, "upon a report of any potential violations of Section 480.0485, F.S., Rules 64B7-23.005 and/or 64B7-26.010, F.A.C., related to sexual misconduct, or sexual activity report the potential violation to the department for investigation pursuant to Section 456.073(1), F.S., within three days" (Rule 64B7-26.0035(3)(e), Chapter 12). The manager's deadline is short and specific; a manager who waits to see how things develop is out of compliance.

The trafficking reporting duties in Chapter 15 are separate and run to the Hotline or law enforcement. A single event may trigger both.

16.11 When the conduct comes from a client

Most of this chapter concerns the duties of therapists and establishments. But clients sometimes behave inappropriately toward therapists, and a therapist needs to know that she has options and that her safety matters.

You may end the session. A therapist who feels unsafe or uncomfortable may stop at any time. The statutes and rules do not require a therapist to continue a session in which a client is behaving improperly.

You do not owe an apology. A therapist who ends a session after an advance has done what the standards expect. She does not need to explain at length or make the client comfortable. A short statement is enough.

Your own conduct remains the test. A client's conduct does not change what the therapist may do. A therapist who responds in kind has crossed the line, whatever the client did first.

Tell the manager or owner. If you work in an establishment, report the incident so that the establishment can protect other therapists, consider whether to refuse future service to the client and, if the manager has a duty under the rules, report the potential violation to the Department.

Document. Write down the facts promptly, as described earlier.

Consider whether to report to law enforcement. If the client's conduct was physical or threatening, you may wish to contact law enforcement. Chapter 10's confidentiality rules protect patient information, but they allow certain disclosures, and an attorney can advise you on how they apply to a report. If you are unsure, ask.

Take care of yourself. An incident can leave a therapist shaken. Talk with a trusted person, take a break if you need it and consider speaking with a counselor.

Plan for safety. Therapists who work alone, or out-call, should have a plan: a way to contact help, a person who knows where they are and a rule that they will leave if a situation feels unsafe.

Set expectations at booking. Clear service descriptions, a short policy statement on professional conduct and a standard script for booking inquiries reduce the number of inappropriate requests. A therapist who states at the start that her services are therapeutic massage only will be asked for improper services less often.

16.12 Staff-to-staff conduct and the workplace

The definition of sexual activity covers contact between employees, and the establishment prohibition applies whoever is involved. A workplace culture that tolerates sexual jokes, pressure or relationships among staff creates an environment in which misconduct is more likely.

Respect among coworkers. A therapist who hears a colleague make sexual comments about clients or coworkers should say that they are not acceptable. If the behavior continues, she should tell the manager, and the manager should respond.

Relationships among staff. The text reviewed for this course does not prohibit consensual relationships among employees outside the workplace, but the prohibition on sexual activity in the establishment is absolute. Any such relationship must be kept entirely out of the establishment and out of the professional environment. A relationship between a manager and a subordinate raises particular concerns about power and consent, and an owner who wishes to avoid problems should adopt a clear policy.

After-hours use. The statute prohibits sexual activity in the establishment at any time. An owner who allows staff to use treatment rooms after hours for private purposes may be allowing prohibited activity. Keep the premises secure and limit access.

Dress and conduct. The dress rule in Chapter 13 and the conduct standards in this chapter work together. All employees must be fully clothed in opaque clothing, and they must behave professionally.

Complaints from staff. A worker who believes she has been subjected to improper conduct by a colleague, a manager or an owner should be able to report it. If she cannot do so within the establishment, she may report to the Department. The manager's three-day duty applies when the manager receives such a report.

Handling rumors. Rumors about staff or clients should not be repeated. A manager who hears a rumor should consider whether it points to something that should be looked into, and if there is a specific allegation, follow the procedure.

Leadership. The tone of an establishment is set by its owner. An owner who treats people with respect, who answers questions plainly and who follows the rules herself builds a workplace in which everyone is safer.

16.13 Consequences

The Act attaches consequences at several levels. Chapters 18 and 19 explain the grounds and the process; this is the sexual-misconduct map.

For the therapist.

• Discipline. Sexual misconduct is a ground for discipline through s. 456.072(1)(v) (conduct as defined in s. 456.063(1)), and through the Act's own prohibition (s. 480.0485) and the general ground of violating any provision of the Act or rules (s. 480.046(1)(p)). The penalties available under s. 456.072(2) include permanent revocation and fines up to $10,000 per count (Chapter 18).
• No time-limit shelter. The usual six-year limit on filing an administrative complaint does not bar an investigation of sexual misconduct (Chapter 19 explains).
• Criminal exposure. Separate criminal statutes may apply to the same conduct. Several (for example sexual battery) are on the list of offenses that mandatorily deny a license (Chapter 6).
• Licensure elsewhere. An applicant who has had a license revoked or surrendered in another jurisdiction based on sexual misconduct, and has not had it reinstated, is disqualified from licensure under s. 456.063(2)(a).

For advertising. Advertising "to induce or attempt to induce, or to engage or attempt to engage, the client in unlawful sexual misconduct as described in s. 480.0485" is a ground for discipline (s. 480.046(1)(e)). The advertising prohibitions themselves are Chapter 17.

For the establishment, owner and manager. Section 480.046(3) says the Board "shall revoke or suspend the license of a massage establishment ... or deny subsequent licensure," if:

• (a) the license was obtained by fraud or misrepresentation;
• (b) the license holder is guilty of fraud or deceit, or of gross negligence, incompetency or misconduct in operating the establishment; or
• (c) the establishment owner, the designated establishment manager, or any individual providing massage therapy services for the establishment has had, in any jurisdiction, (1) a final order or other disciplinary action for sexual misconduct involving prostitution; (2) a final order or other disciplinary action for crimes related to the practice of massage therapy involving prostitution; or (3) a conviction or plea of guilty or nolo contendere to any misdemeanor or felony crime, regardless of adjudication, related to prostitution or related acts under s. 796.07.

Notice the word shall: where one of those events is established, revocation or suspension is mandatory. Notice also any individual providing massage therapy services for the establishment. An establishment can lose its license because of what a single therapist working there did, even a therapist the owner did not know had a record. That is a powerful reason for the screening in Chapters 6 and 12 and the license checks the manager must make.

The consequences extend to the people. An owner who has been the subject of such action "may not reapply for an establishment license and may not transfer such license" (s. 480.046(4)). A designated manager who has been the subject of such action "may not reapply for a license" (s. 480.046(5)). (Both subsections are worded loosely in the statute and refer to "section (3)"; read them with subsection (3) in mind.) These are lasting bars, not temporary suspensions.

16.14 A consequence map

Because the consequences of sexual misconduct occur at several levels, it can be hard to remember who faces what. The table summarizes the map, using the provisions described in this chapter and in Chapters 18 through 20.

A few observations help. The establishment can lose its license because of what a single therapist did, even one the owner did not know had a record, which is why screening and license verification matter. The bars on owners and managers are lasting, not temporary. And the reporting duties apply to all licensed practitioners, not only to managers.

The map also shows why prevention is better than response. A therapist who maintains professional boundaries, an owner who builds a culture of respect and a manager who acts on reports can avoid every consequence in the table.

16.15 Advertising and online presence

The third layer of prohibition concerns advertising, and Chapter 17 covers it in detail. Two points belong here because they affect how misconduct begins and how it is detected.

Wording matters. Advertising that induces or attempts to induce clients to engage in unlawful sexual misconduct is a ground for discipline. Wording such as "all services available" or "ask for the special" may be understood as offering sexual services, whatever the owner says about intent. A safe approach is to describe the therapeutic services you offer, plainly and accurately, and to avoid any phrase that could be read as suggestive.

Online listings. Advertising on websites, social media and directories is subject to the same rules. A listing posted by a third party that describes your business in suggestive terms should be corrected or removed. Check your online presence regularly.

Images. Photographs and images should show professional settings. Avoid pictures that suggest anything other than therapeutic massage.

Reviews and comments. Do not respond to reviews or comments in ways that imply sexual services. If a comment suggests that someone believes you offer them, correct it politely and clearly.

Booking inquiries. Train staff to respond to inappropriate inquiries with a standard statement: "We offer therapeutic massage only." If a caller persists, end the call and note it. A pattern of inquiries may suggest that your advertising or listing is being misread.

Why this matters. Suggestive advertising attracts the wrong kind of inquiries, exposes the therapist to discipline and is a recognized indicator of illicit activity. Honest advertising is the first line of defense.

16.16 Frequently asked questions

Does the prohibition apply if the therapist and client are in a long-standing romantic relationship that began outside the practice? The statutes address the use of the therapist-client relationship to engage in sexual activity outside the scope of practice, and the establishment prohibition applies to sexual activity in the establishment regardless. The text reviewed here does not provide a special exception for pre-existing relationships. A therapist in this situation should ask the Board or consult an attorney, and should not treat a partner in the context of practice without advice.

May a therapist begin a relationship with a former client? The text reviewed for this course does not state a waiting period. The statutes prohibit using the relationship to induce or engage a patient in sexual activity. A therapist who is considering a relationship with someone she has treated should seek advice from the Board or an attorney before acting, and should recognize that the relationship may still be viewed as arising from the professional one.

Does a therapist have to report a client's advance to the Department? The reporting duties concern allegations of sexual misconduct by practitioners and potential violations of the establishment prohibitions. A client's advance that the therapist rebuffed may still involve a potential violation of the establishment prohibition, and the manager should consider whether to report. If you are unsure, ask the Department.

What if the client says it was a joke? Whether the conduct was meant as a joke does not change what the statute prohibits. A therapist who receives a sexual remark should state the boundary, and a therapist who makes one should stop.

Is a hug allowed? The statute defines sexual activity by purpose or likely effect. A professional greeting is not sexual activity. A therapist should be careful, however, and should respect any client's wishes about touch. If you are in doubt, do not.

May I ask a client out if I stop treating her first? See the answer about former clients. The safest course is not to. If you do, understand the risk and seek advice first.

Is a tip a problem? A tip is not sexual activity. A request for a tip in exchange for something improper is an advance. The therapist's response should be the same: state the boundary and end the session if necessary.

16.17 More scenarios to practice

Scenario G: The late-night messages. A therapist begins texting a regular client late at night about personal matters, and the messages become flirtatious. The client replies warmly. Has the therapist done anything wrong?

Discussion. The therapist is in the warning-sign column of the spectrum. She is using the professional relationship in a way that blurs the line, and the messages may be viewed as verbal sexual activity under the general statute. She should stop the personal messages at once, return to professional communication, and consider telling a supervisor or seeking advice. The client's warm replies do not change the therapist's duty.

Scenario H: The manager and the rumor. A worker tells the manager that she heard a coworker made sexual comments to a client, though she did not witness it. The manager is not sure whether to act. What should she do?

Discussion. The statute speaks of allegations and potential violations, and the manager's duty is triggered by a report of a potential violation. The manager should write down what she was told, avoid investigating on her own and report to the Department within three days. She should also consider her own duty under section 456.063(3). She should not discuss the matter with other workers.

Scenario I: The after-hours room. An owner lets two employees who are in a relationship use a treatment room after closing "since no clients are there." What is the problem?

Discussion. Sexual activity in a massage establishment is prohibited at any time, whoever is involved, and an owner may not engage in or allow it. After-hours use by employees falls within the prohibition, and the owner who allows it is exposed to discipline and to the consequences for the establishment. The owner should stop the practice and secure the premises.

Scenario J: The suggestive listing. A third-party directory lists an establishment's services as "relaxing, discreet, extra services available" without the owner's knowledge. A client asks about the "extras." What should the owner do?

Discussion. The owner should contact the directory at once to correct or remove the listing, tell staff to respond to inquiries that therapeutic massage is the only service offered and review all online listings. Advertising that would be understood as offering sexual services is a problem whatever the owner's intent. A pattern of inquiries about extras should also prompt her to consider whether anything in her own materials is being misread.

Scenario K: The client who will not stop. A client repeatedly asks a therapist to cover less of her body with the drape and says the therapist is "being uptight." The therapist explains the rule, but the client insists. What should she do?

Discussion. She should state clearly that she will keep the drape in place, that the rule requires coverage at all times unless written specific consent is noted and that she will not do that work. If the client continues, she should end the session, document what happened and tell the manager. She is never obligated to continue a session in which she is uncomfortable.

Chapter summary

Section 480.0485 states that the therapist-patient relationship is founded on mutual trust, and defines sexual misconduct as using that relationship to induce or attempt to induce, or to engage or attempt to engage, the patient in sexual activity outside the scope of practice or of generally accepted examination or treatment. Sexual activity as defined in Chapter 2 applies with or without consent, so a client's agreement is not a defense.

The general statute, section 456.063, defines sexual misconduct for all health care practitioners more broadly, including verbal sexual activity and conduct directed at a patient's immediate family member, guardian or representative, and section 456.072(1)(v) makes it a ground for discipline. The Board's Rule 64B7-23.005 prohibits sexual activity in the context of massage therapy practice or in an establishment and prohibits using the therapist-client relationship to induce or engage in sexual activity.

The second layer concerns the premises. Section 480.043(14)(a) prohibits sexual activity in an establishment, prohibits an owner or employee from engaging in or allowing any person to engage in it or using the establishment to make arrangements for it elsewhere, and prohibits used or unused condoms. Rule 64B7-26.010 repeats the prohibitions. The third layer is advertising, covered in Chapter 17.

Every licensed practitioner must report allegations of sexual misconduct to the Department under section 456.063(3), and a designated manager must report a potential violation to the Department within three days. The consequences reach the therapist, whose license may be revoked and who faces fines and possible criminal charges, and the establishment, whose license the Board must revoke or suspend if the owner, the designated manager or any individual providing massage therapy services has listed disciplinary action or convictions. Owners and managers subject to such action may not reapply.

Professional practice sets a higher bar than the law. Avoid sexual remarks, avoid relationships with current clients, keep contact professional, explain and keep to draping, state boundaries clearly if a client makes an advance, end the session if needed, document facts and report as required.