Sex and the Social Worker
By Matthew Robb, MSW, LCSW-C
Social Work Today
Vol. 5 No. 5 P. 36

Is the incidence of sexual misconduct up or down? The experts weigh in.

It is discussed in graduate school, analyzed in workshops, dissected in journals, spotlighted by advocates, prohibited by the National Association of Social Workers (NASW), sanctioned by regulators, punished by courts, and described by one expert as the “quadruple whammy” of social work.

The phenomenon—sexual misconduct—is the scourge of the helping professions, among them social work. The NASW ranks sexual misconduct claims as the most-cited infraction of its Code of Ethics. The Association of Social Work Boards (ASWB), meanwhile, asserts that this ultimate boundary violation persists with “no diminution” in reported complaints.

Many experts say sexual misconduct is as pervasive as ever, but one insider disagrees. Eric Marine is vice president of claims for sexual exploitations for the American Professional Agency Inc., a New York-based firm that administers the professional liability insurance program for the NASW Insurance Trust. For 20 years, Marine has sifted data, crunched numbers, and connected dots such that today he confidently declares sexual exploitation by social workers is down—way down.

The implications, he says, are profound. On one level, it represents a major achievement for the discipline of social work. On another, it signifies that something is working, and working well.

Good News?
If sexual misconduct is down, just how far down is it?

Marine says it is at a historic low and still trending downward. “The volume of claims against social workers has dropped precipitously in the past 10 years—precipitously,” he says. “At one time, sexual misconduct was 25% or more of all claims. Today it’s maybe 8% or 9%.” That this behavior exists at all is still problematic, he says, “but it’s heartening that the numbers [have] dropped.” The best data, he says, puts the per-capita incidence rate in social work below that of psychology and psychiatry.

Marine concedes that the American Professional Agency, Inc.’s data are not exhaustive but could offer the most authoritative picture available. The dilemma, he says, is that no malpractice insurer, state licensing board, advocacy group, or professional association can claim bulletproof data because none comprehensively track sexual misconduct at local, state, and national levels. Information gaps abound. Evidentiary thresholds are high. Definitions vary. Sharing of data is spotty. In the final analysis, however, Marine is as confident in his agency’s data as he is suspect of data cited by regulators, associations, and advocacy groups.

“I don’t believe complaints at the board level are statistically accurate,” he says. “And I think their data are skewed. I converse with boards of examiners around the nation and their numbers vs. what I see are totally different. For starters, there is a major disconnect between what we and they call a ‘complaint.’” Marine underscores this perception of disarray by noting that even the authoritative NASW “receives far fewer complaints than the state licensing boards and malpractice insurers do.” From 1986 to 1997, NASW received 95 reports of sexual misconduct. Distributed nationally, this averages out to less than two complaints per U.S. state over an 11-year period.

In a 2004 study, Susan Hutchinson Mittendorf, PhD, and Julie Schroeder, PhD, of Louisiana State University reaffirmed the consensus view when they concluded that many cases of sexual misconduct simply slip between the cracks. They found that despite state social work licensing boards receiving a steady stream of ethics complaints, “many retain data only on fully adjudicated cases.” Examining a 25-year period ending in 1999, the two social workers noted that the Louisiana State Board of Certified Social Work Examiners had documented only 13 fully adjudicated cases “in which disciplinary action for sexual misconduct was taken.” That translates into approximately one case every two years statewide, leaving the uninitiated observer to conclude that sexual misconduct is a rare phenomenon indeed.

Marine suggests that he could argue a stronger case were American Professional Agency, Inc.’s data not proprietary. Although the agency has amassed a mountain of data on professional misconduct stretching back 31 years, the NASW Insurance Trust—a for-profit subsidiary of the NASW—has historically blocked their release, fearing rival underwriters could gain an unfair competitive advantage. Client-advocates may cite the public interest for the release of the data, but Marine responds, “This is a statistical business using statistics for purposes of business, not for research.” (The NASW Insurance Trust denied Social Work Today’s request for access to the data.) Even so, he says, “what we have is raw data based upon [partly uncorroborated] allegations.” Many malpractice claims, he notes, are settled before a jury can decide matters of guilt and innocence. “If you accuse someone of sexual misconduct,” he says, “then it [officially] becomes a sexual misconduct claim. Even if it’s later not found [in trial], it still stands as a claim.”

Marine says the incidence of sexual misconduct is down, but Donna DeAngelis, executive director of the Virginia-based Association of Social Work Boards, believes otherwise. “I have not noticed any diminution of complaints at all,” she says. “I won’t quibble with [Marine’s] numbers and I can’t guess as to why malpractice claims are down, but the complaints that regulatory boards receive on professional misconduct are not down. That’s why the boards have begun to require ethics courses as part of [continuing education].”

DeAngelis and Marine do agree that many victims of sexual misconduct never go public. Where DeAngelis sees the jagged tip of an iceberg, Marine argues against making inferences about phenomena that may—or may not—lurk beneath the surface of established fact.

“I’m seeing [sexual misconduct] allegations that aren’t supported,” he says. Clients sometimes make bogus claims because the claim sticks like Velcro. “The worst thing,” he says, “that you can do against a social worker is say: ‘You had sex with me.’ It immediately alienates people around the social worker and suggests he or she is guilty until proven innocent.”

Drawing on her experience as a leading regulator, DeAngelis comments, “We only know of what is reported and some people don’t report for years.” State boards, she says, typically track and report only on adjudicated complaints. Because “claims” of sexual misconduct typically fall below the evidentiary threshold, they don’t merit ink in official reports and never make their way to Marine’s desk. DeAngelis notes that 30 years ago, fewer than one-half of the nation’s jurisdictions had any kind of social work regulation. With greater numbers of boards reporting today, she says, the numbers are up, not down. Or, at least, they should be.

Might the discipline have seen a simultaneous surge in reporting and drop in sexual misconduct? DeAngelis says no. She allows that her intuition argues otherwise, but adds, “We don’t have the data to determine that.”

Minneapolis psychologist Gary Schoener agrees with Marine on an observed decline in sexual misconduct but says the real question is “just how big that decline really is.”

Schoener, executive director of the Minneapolis-based Walk-In Counseling Center, is an internationally recognized expert on sexual misconduct and has consulted in thousands of cases allegedly perpetrated by social workers, psychologists, psychiatrists, and more. His center debuted its first victim support group in 1976, he says, “back when we were way, way, way ahead of the field.” By 1999, flagging demand put an end to the groups. Schoener says that when one of the nation’s leading treatment centers loses its base, it suggests something profound.

Nevertheless, Schoener still argues against certitude. “We have never been able to get an accurate snapshot of sexual misconduct in the field. It is a hidden problem. The literature suggests that only 3% to 5% of victims even step forward.” Schoener attributes the presumed decline in sexual misconduct to several variables.

“Deterrence and fear are major factors today,” he says. “In 1985, Minnesota became the second state—after Wisconsin—to criminalize client-therapist sex and the first to make it a felony.” Nearly two dozen states followed suit, making sexual involvement with clients punishable by incarceration. The stiff sentences meted out, Schoener says, have gone far in eliminating what he terms “repeat offenders” but what others may call sexual predators. Another key driver, he notes, is the NASW explicitly prohibiting sexual involvement with clients in its 1992 and 2002 codes of ethics.

Licensure boards are also much more high profile and aggressive, he says. Victims of sexual misconduct many years ago typically only had the NASW Committee on Inquiry to file their complaints. (Few victims, he says, likely knew the committee even existed, nor that complaints of sexual misconduct had a six-month cut-off period.) The rise of the state licensing boards, he says, brought order to chaos and introduced laws with teeth. The board that 15 years ago may have rapped the knuckles of a sexually inappropriate social worker today may impose a career death sentence.

Stronger, smarter, and more attuned, the system is significantly improved but still far from ideal, Schoener says. Part of the problem is a statute of limitations geared toward the sexually inappropriate social worker. “People typically can’t get their act together to bring an action within the customary one or two years.” Some statutes may allow exceptions to the limit, but few client arguments, he says, get traction in courts.

“But the bottomline,” he says, “is the ‘cap’ did its job. It’s a killer. It’s a pittance.”

Schoener refers to the American Professional Agency, Inc. 1986 and subsequent policy revisions that limit social worker professional liability coverage to only $25,000 in instances of sexual misconduct. (Today, the $25,000 cap is an industry standard.) The expert witness in countless court cases says defense expenses—filing fees, expert witness fees, depositions, and more—will quickly chew up that $25,000 payout, leaving little to nothing for attorney fees and certainly nothing for the client. “Most attorneys won’t typically take the case because there’s no money in it for them,” he says. In short, he argues that the American Professional Agency, Inc. is seeing reduced numbers because it writes policies that discourage victims from complaining. This is good for the insurance business, he says, but the message elsewhere is “screw the consumer.”

Marine takes issue with Schoener and his idea of who the consumer is. “Our consumer is the policy holder. Insurance is not intended to be a social compensation where the ultimate recipient is a party to the contract. Some exposures are just uninsurable at a reasonable cost. Sexual misconduct is one of those exposures. I don’t doubt that the inability to get money may stop some people from filing claims, but there is no deterrent to filing a licensing action, only the cost of a stamp.”

From her office near Baton Rouge, LA, Susan Hutchinson Mittendorf, PhD, says, “I would not disagree that the incidence of reporting has gone down, but I don’t think that means that the incidence itself has gone down.”

Mittendorf’s research finds that many cases go unreported, many clients don’t sue, and few offenders are likely to self-disclose sexual misconduct. “The [American Professional Agency, Inc.] is only seeing the most severe cases—those that can be adjudicated,” she says. “Oftentimes, a victim is upset or frightened or terribly embarrassed about the sexual misconduct,” especially if that victim is married or involved in a long-term relationship. In addition, she says some victims are fearful of courtroom mudslinging and media circuses turning their excruciating personal travails into public free-for-alls. “At least in Louisiana,” she notes, “you cannot guarantee confidentiality in court cases.”

Schoener agrees and says the system seems tailored to wear down victims. The payout or final result in many court cases, he says, may not be received or known for years after the suit is brought. Should the decision be contested, he says, “it can go on forever and ever.”

He cites one case in which he acted as an expert long ago. “Believe it or not,” he says, “there is still an action underway to collect from the insurance carrier, seven years after the plaintiff won the trial. By the time we will know the answer on the insurance, about 15 years will have elapsed since the victim first filed the case.”

— Matthew Robb, MSW, LCSW-C, is a social worker and freelance writer residing in suburban Washington, DC.

Beyond Scare Tactics and Surface Issues
Whatever the actual statistics on sexual misconduct, every respondent interviewed for this article agreed that at the heart of the debate lies a vulnerable person—sometimes a child.

Sexual misconduct is a complex, entrenched problem that requires more than plugging information gaps, beefing up regulations, and raising stingy insurance caps, says Minneapolis psychologist Gary Schoener. Until the social work profession looks at the root issues, sexual misconduct will persist.

Among the problems Schoener sees are poor screening of degree applicants, inadequate attention given to professional impairment, and ethics workshops strong on surface issues but weak on the fundamental drivers of sexual misconduct.

Speaking of workshops, he says, “the problem of sexual misconduct doesn’t hinge on knowing the NASW Code of Ethics. It’s about managing the therapeutic relationship. Take the sex out of misconduct and there are numerous other things that can go wrong.”

Emblematic of the problem, he says, is the conspicuous absence of training materials exploring boundaries. “What is typically done today in workshops is scare tactics,” he says. “Scaring people may work as a deterrent, at least usually. But there are no DVDs or videotapes in existence that interview impaired or overinvolved social workers—none in the world.”

Raising his voice, Schoener says, “My goodness, this is the video age. Videotape training is par for course in the business world, yet you can’t even put up a videotape before an audience of social workers and say: Look and listen to real social workers who struggled with their depression, got into trouble, and today wish they had gone for help earlier.”

— MR