Section 895.441. Sexual exploitation by a therapist; action for.

 

(1)   Definitions. In this section:

(a) “Physician" has the meaning designated in s. 448.01 (5) .

(b) “Psychologist" means a person who practices psychology, as described in s. 455.01 (5) .

(c) “Psychotherapy" has the meaning designated in s. 455.01 (6) .

(d) “Sexual contact" has the meaning designated in s. 940.225 (5) (b) .

(e) “Therapist" means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

(2)   Cause of action.

(a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.

(b) Notwithstanding ss. 801.09 (1) , 801.095 , 802.04 (1) and 815.05 (1g) (a) , in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff's attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.

(c) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect:

1. A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression or undue burden that would arise if any information identifying the plaintiff were made public.

2. A plaintiff in an action under this section from unreasonably long, repetitive or burdensome physical or mental examinations.

3. The confidentiality of information which under law is confidential, until the information is provided in open court in an action under this section.

(3)   Punitive damages. A court or jury may award punitive damages to a person bringing an action under this section.

(4)   Calculation of statute of limitations. An action under this section is subject to s. 893.585 .

(5)   Silence agreements. Any provision in a contract or agreement relating to the settlement of any claim by a patient against a therapist that limits or eliminates the right of the patient to disclose sexual contact by the therapist to a subsequent therapist, the department of safety and professional services, the department of health services, the injured patients and families compensation fund peer review council, or a district attorney is void.

1985 a. 275 ; 1987 a. 352 ; 1991 a. 160 , 217 ; 1995 a. 27 s. 9126 (19) ; 1999 a. 85 ; 2003 a. 111 ; 2005 a. 155 s. 62 ; Stats. 2005 s. 895.441; 2007 a. 20 s. 9121 (6) (a) ; 2011 a. 32 . Under sub. (2), consent is not an issue and, as such, an instruction regarding the victim's contributory negligence was improper. Block v. Gomez, 201 Wis. 2d 795 , 549 N.W.2d 783 (Ct. App. 1996), 94-1085 . This section grants no cause of action against a therapist's employer. L.L.N. v. Clauder, 203 Wis. 2d 570 , 552 N.W.2d 879 (Ct. App. 1996), 95-2084 . Reversed on other grounds, 209 Wis. 2d 674 , 704, 563 N.W.2d 434 (1997), 95-2084 .