Sexual Conduct by Health and Mental Health Professionals: Michigan Law

Michigan law addresses sexual conduct by health professionals in three criminal provisions and in the licensing code. Inside the criminal sexual conduct (CSC) statutes, unethical or unacceptable medical treatment or examination is a listed form of force or coercion.^[1] A separate felony, MCL 750.90, covers sexual contact or penetration obtained by misrepresenting that it is medically necessary or beneficial.^[2] A third provision makes sexual contact between a mental health professional and a client or patient a crime, during the professional relationship or within 2 years after it, whether or not the client agreed.^[3] The Public Health Code adds license discipline that does not depend on a conviction.^[4]

If you are in immediate danger, call 911.^[7] The National Sexual Assault Hotline is free, confidential and open 24/7 at 800-656-HOPE (4673).^[8] Michigan's VOICES4 hotline takes calls and texts at 855-864-2374.^[9]

This page explains each provision, how they differ, and the licensing, chaperone and record-keeping rules that sit alongside them. It describes what the statutes make a crime and how courts have read them. It is not legal advice, and nothing on it is a statement that any conduct is lawful.

The three criminal provisions compared

Provision	What it covers	Role of consent	Maximum penalty in the statute
CSC by force or coercion in the form of medical treatment, MCL 750.520b(1)(f)(iv) and the matching provisions	Sexual penetration or contact where the actor engages in medical treatment or examination in a manner or for purposes medically recognized as unethical or unacceptable[1][10]	Consent can be raised against a force-or-coercion charge; the prosecutor has the burden of disproving it once it is in controversy[11][12]	Depends on the degree: 15 years for third degree (penetration); 2 years, a fine of up to $500, or both for fourth degree (contact); with personal injury, life or any term of years for first degree (penetration) and 15 years for second degree (contact)[13][14][15][16][17][18]
Sexual contact or penetration under pretext of medical treatment, MCL 750.90	An individual who undertakes medical treatment misrepresents that sexual contact or penetration is necessary or will be beneficial to the patient's health, and induces the patient by that misrepresentation[2]	The offense is defined by the misrepresentation that induced the patient[2]	20 years (contact); 25 years (penetration)[2]
Mental health professional and client, MCL 750.520e(1)(e)	Sexual contact during the professional relationship or within 2 years after it, with a client or patient who is not the professional's spouse[3]	The statute says the consent of the victim is not a defense[3]	2 years, a fine of up to $500, or both[14]

Unethical medical treatment as "force or coercion"

The CSC statutes list five forms of force or coercion. The fourth is: "When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable."^[1] The fourth-degree statute repeats the same form for sexual contact.^[10]

Because this is a form of force or coercion, it works the same way as any other form. Used to accomplish sexual penetration it supports third-degree CSC, and with personal injury it supports first-degree CSC.^[19][15] Used to accomplish sexual contact it supports fourth-degree CSC, and with personal injury second-degree CSC.^[10][17] See force or coercion: what the statute lists.

Michigan appellate courts have read the provision in three notable ways:

• It is not limited to medical doctors. "Medical treatment" is read broadly to include forms of health care beyond those practiced by medical doctors.^[20] In one case the coercion element was satisfied where a therapist engaged in sexual contact with a patient through an unethical or unacceptable manner of treatment during a therapy session.^[21]
• It is not limited to pretext. In People v Baisden the Michigan Supreme Court overruled earlier Court of Appeals decisions to the extent they limited the provision to situations in which the examination or treatment is used as a pretext to secure the patient's consent; the provision also applies where nonconsensual sexual conduct is perpetrated during or in the context of medical treatment or examination.^[21]
• Expert testimony is not required in every case. The same order overruled those decisions to the extent they held that medical testimony is required in all prosecutions under the provision.^[21]

A professional relationship can also amount to coercion under the general case law on authority. The benchbook used by Michigan judges summarizes People v Reid as a case in which the complainant was coerced into submitting where the defendant, who was counseling the complainant, used the counseling relationship to place the complainant in a confused and disoriented condition.^[22] In a case involving a psychiatrist and a patient, the Court of Appeals said that the presence of consent is not necessarily the factual equivalent of the absence of coercion and that the focus is the validity of the consent; that opinion was later vacated in part on other grounds.^[23]

MCL 750.90: sexual contact or penetration under pretext of medical treatment

MCL 750.90 is outside the CSC chapter and has its own elements. It applies to an individual who undertakes medical treatment of a patient, who in the course of that treatment misrepresents to the patient that sexual contact or sexual penetration between them is necessary or will be beneficial to the patient's health, and who induces the patient to engage in it by means of the misrepresentation.^[2] The offense is a felony with a maximum of 20 years for contact and 25 years for penetration.^[2]

Three further points come from the text:

• "Medical treatment" includes an examination or a procedure, and "patient" means a person who has undergone or is seeking to undergo medical treatment.^[24]
• The section does not prohibit the individual from being charged with, convicted of, or punished for any other violation of law committed while violating it.^[25]
• The court may order the sentence to be served consecutively to a sentence for any other crime, including one arising out of the same transaction.^[25]

The current wording dates from October 10, 2023. Before 2023 PA 58, the section applied only to a person treating a female patient who induced her to have sexual intercourse by representing it was necessary or beneficial to her health, and the maximum was 10 years.^[26] Other 2023 changes are listed in the timeline of Michigan sex-crime law changes.

Mental health professionals and clients

MCL 750.520e(1)(e) makes sexual contact fourth-degree CSC where "the actor is a mental health professional and the sexual contact occurs during or within 2 years after the period in which the victim is the actor's client or patient and not the actor's spouse."^[3] The provision goes on: "The consent of the victim is not a defense to a prosecution under this subdivision."^[3] It also says a prosecution under it shall not be used as evidence that the victim is mentally incompetent.^[3]

"Mental health professional" has the Mental Health Code meaning: an individual trained and experienced in the area of mental illness or developmental disabilities who is a physician, a psychologist, a registered professional nurse, a licensed master's social worker, a licensed professional counselor, or a licensed marriage and family therapist.^[27]

The provision concerns sexual contact. The list of circumstances for third-degree CSC, which covers sexual penetration, has no mental health professional entry.^[19] Penetration in a treatment setting is addressed through the other provisions on this page, including force or coercion and MCL 750.90.^[1][2]

Fourth-degree CSC is labeled a misdemeanor but carries up to 2 years, which makes it a felony under the Code of Criminal Procedure's definition.^[28][29] See fourth-degree CSC.

Patients who are especially vulnerable

Where the other person is mentally incapable, mentally disabled, mentally incapacitated or physically helpless, and the actor is in a position of authority over that person and used this authority to coerce the person to submit, sexual penetration is first-degree CSC and sexual contact is second-degree CSC.^[30][31] "Mentally incapacitated" includes incapacity due to the influence of an anesthetic.^[32] See positions of authority and CSC and intoxication, incapacity and consent.

Licensing consequences under the Public Health Code

License discipline is separate from the criminal case, and one of its grounds reaches conduct to which the patient consented.^[4]

Ground	Sanction in the statute
Conduct with a patient that is sexual or may reasonably be interpreted as sexual, including conduct initiated by the patient or to which the patient consents[4]	Probation, suspension, revocation, limitation, denial, restitution, or fine[33]
Conviction of first-, second- or third-degree CSC[34]	Permanent revocation is mandatory if the violation occurred while the licensee was acting within the health profession[35]
Conviction of fourth-degree CSC or assault with intent to commit CSC[36]	Sanctions ranging from probation to permanent revocation[36]
Conviction under MCL 750.90 or a substantially similar crime[37]	Permanent revocation[37]

Several procedural rules apply around those grounds:

• If a licensee is convicted of a felony, or of a misdemeanor punishable by a maximum of 2 years, the department shall summarily suspend the license.^[38]
• The department may summarily suspend a license before any conviction if the public health, safety or welfare requires emergency action.^[38]
• A licensee has to notify the department of any criminal conviction within 30 days after the conviction.^[39]
• A licensee who has knowledge that another licensee committed a violation has to report it to the department.^[40]
• An individual whose license is permanently revoked is ineligible for reinstatement.^[41] After an ordinary revocation based on a CSC conviction, an applicant shall not apply for reinstatement before 5 years have passed.^[42]
• A disciplinary subcommittee may impose a fine of up to $250,000 for a violation of the two subdivisions of the discipline statute that include the conviction-based grounds.^[43]

Any person may submit a written allegation against a licensee; if it is submitted more than 4 years after the incident, the department may investigate but is not required to.^[44] Information obtained in an investigation before a complaint is issued, including patient names, is confidential.^[45] The process is explained in licensing-board investigations and professional licenses and employment.

Chaperone, consent and record rules added in 2023

Three Public Health Code rules took effect October 10, 2023:

1. Procedures on minors. A licensee may not perform a medical treatment, procedure or examination on a minor that involves vaginal or anal penetration unless it is within the scope of practice, a medical assistant or another licensee is in the room, and written consent of a parent, guardian or other authorized person is obtained beforehand. The person providing consent may waive the second-person requirement.^[5]
2. Exceptions. The rule does not apply to medical emergencies; to care that primarily relates to the patient's urological, gastrointestinal, reproductive, gynecological or sexual health; to care at a children's advocacy center; to sexual assault medical forensic examinations; to taking a temperature; or to rectally administering a drug.^[46]
3. Records. When a medical service involves vaginal or anal penetration, outside listed exceptions, the licensee shall expressly state that in the patient's record and keep the record for a minimum of 15 years.^[47]

Knowingly violating the rule on procedures for minors is a felony: up to 2 years or a fine of up to $5,000, or both, for a first offense, and up to 5 years or a fine of up to $10,000, or both, for a second or subsequent offense.^[6]

Reporting and other remedies

Physicians, nurses, psychologists, licensed professional counselors, marriage and family therapists and social workers are among Michigan's mandated reporters of suspected child abuse.^[48] See mandated reporters of child abuse. A patient's options for reporting are set out in options for reporting sexual assault, and civil claims in civil lawsuits for sexual assault.

What people get wrong

"If the client consented, a therapist has committed no crime." For sexual contact during the professional relationship or within 2 years after it, the statute says consent is not a defense.^[3]

"The medical provision only applies to physicians." Courts read "medical treatment" broadly to include health care beyond that practiced by medical doctors.^[20]

"Licensing action needs a conviction." Sexual conduct with a patient is a ground for discipline by its own terms, and the department may summarily suspend a license before any conviction.^[4][38]

"An intimate examination is automatically suspect." The criminal provisions turn on treatment that is medically recognized as unethical or unacceptable, or on a misrepresentation about medical need.^[1][2]