Lawmakers have drafted legislation that would close a legal loophole, first reported by the I-Team, that keeps statutory rape complaints about psychotherapists from being forwarded to law enforcement by the state authority charged with overseeing them.
Democratic Assemblyman Felix Ortiz, of Brooklyn, said he was "shocked" when he found out there was no mandatory reporting requirement.
“We will be introducing the new legislation no later than Monday,” Ortiz said.
Assemblywoman Amy Paulin, a Democrat from Scarsdale, called the loophole "outrageously ridiculous."
Under New York law it is third-degree, or statutory, rape when a mental health provider engages in a sexual relationship with a patient undergoing therapy, regardless of age, and even if the patient is a willing participant.
“The patient is unable to consent and that’s what the criminal statute here in New York recognizes,” said lawyer Audrey Bedolis. “Consent isn’t there because emotions have been manipulated by the therapist.”
But there is a loophole in the reporting of such crimes by the state.
A psychiatrist is a doctor whose license to practice is overseen by the state Office of Professional Medical Conduct (OPMC), a division of the Health Department, and that agency is required to report allegations of therapist-patient sex to law enforcement.
But a psychotherapist or state-licensed clinical social worker is not a doctor and that license is overseen by the state Office of Professional Discipline (OPD), a division of the Education Department.
OPD is not required by statute to report allegations of statutory rape pertaining to therapist-patient sex.
Under the proposed changes from Ortiz and Paulin, OPD would have 24 hours to turn over such complaints to law enforcement.
And, if passed, the law would also broaden the restrictions on therapist-patient sex. Right now, in New York, it is only statutory rape if the therapist engages in sex with a patient during a counseling session.
The updated law would make it illegal at any time during the entire course of treatment of a patient, regardless of location.
“The kind of mental health care provider that would have sex with a patient is apt to do it again and again until they’re stopped,” said Lisa Friel, a former sex crimes prosecutor in New York City and now consultant for T & M Protection Resources.
“New York state is one of the least protective for patients with their mental health care providers,” said Friel, who favors expanding the law.
The I-Team report was sparked by a case in Suffolk County involving a licensed clinical social worker named Scott Burzon. A patient of his, Denise Weisbrod, told the I-Team she reported him to the agency last year after he convinced her that her issues trusting men could be overcome if she were to routinely have sex with him.
“I would do anything at that point that I could to get better,” said Weisbrod. “I wanted to get better so I believed him because everything he said for four years seemed to be trustworthy, that he was going to help me.”
She said she first heard nothing from a state investigator. She called the office again in October and asked about the case and was told another person had also come forward with similar accusations.
“He was called in to be interviewed and admitted to both cases,” said Weisbrod.
An OPD spokesman, Jonathan Burman, did not dispute Weisbrod’s story, but said confidentiality laws prevent the agency from releasing any details.
OPD, which oversees professional licensees from architects to veterinarians, said there have been 132 complaints specifically against mental health providers in New York in the last three years.
Burman said that among all professional licenses, his agency refers dozens of cases a year to law enforcement. When asked for the specific number of criminal referrals pertaining to therapists having sex with clients, Burman declined to answer, again citing confidentiality laws.
Meanwhile, for seven months following Weisbrod’s August, 2011 complaint, Burzon still had his license and could still see clients. He committed suicide in March 2012, sources said.