1. (a) Applicability of Rule. This rule applies to any person subject to the rules and regulations of the Texas State Board of Examiners of Psychologists including certificands, licensees, supervisees of a psychologist, and/or applicants for certification or licensure. Acts described in this rule constitute unprofessional conduct.

2. (b) Sexual harassment.

   1. (1) A person (defined in subsection (a) of this section) may not engage in sexual harassment of:

      1. (A) a patient/client or former patient/client;
      2. (B) a student enrolled in the educational institutional at which the licensee/certificand/applicant offers professional/education services; or
      3. (C) a supervisee or employee for whom the licensee/certificand/applicant has administrative or clinical responsibility.

   2. (2) Sexual harassment is sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the person's (defined in subsection (a) of this section) activities or professional roles, and that either:

      1. (A) is unwelcome, is offensive, or creates a hostile workplace environment, and the person knows or is told this; or
      2. (B) is sufficiently severe or intense to be abusive to a reasonable person in the context. Sexual harassment can consist of a single intense or severe act or of multiple persistent or pervasive acts.

3. (c) Sexual impropriety.

   1. (1) A person (defined in subsection (a) of this section) may not engage in sexual impropriety with:

      1. (A) a current patient/client;
      2. (B) a former patient/client for a least five years after the cessation or termination of professional services (because of the potential for harm, persons do not engage in sexual behavior even after a five-year interval except in the most unusual circumstances--see §465.36(c)(4)(G) of this title (relating to the Ethics Code);
      3. (C) a student enrolled in the educational institutional at which the licensee/certificand/applicant offers professional/educational services; or
      4. (D) a supervisee for whom the licensee/certificand/applicant has administrative or clinical responsibility.

   2. (2) Sexual impropriety may include, but is not limited to:

      1. (A) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexually demeaning;
      2. (B) inappropriate sexual comments about and to a patient/client, former patient/client, student, or supervisee, including, but not limited to, making sexual comments about an individuals body;
      3. (C) making sexually demeaning comments to and about an individual's sexual orientation;
      4. (D) making comments about potential sexual performance except when the examination or consultation is pertinent to the issue of sexual function or dysfunction in therapy/counseling;
      5. (E) requesting details or sexual history or sexual likes and dislikes when not clinically indicated for the type of consultation;
      6. (F) making a request to date;
      7. (G) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee/certificand/applicant;
      8. (H) kissing of a sexual nature;
      9. (I) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature.

4. (d) Sexual intimacy/violation.

   1. (1) A person subject to this rule (defined in subsection (a) of this section) may not engage in sexual intimacies with:

      1. (A) a current patient/client;
      2. (B) a former patient/client for at least five years after cessation or termination of professional services (because of the potential harm, persons do not engage in sexual intimacies with former patients/clients even after a five-year interval except in the most unusual circumstances--see 465.36(c)(4)(G) of this title (relating to the Ethics Code);
      3. (C) a student matriculating in any program in the department at the educational institution at which the licensee/certificand/applicant offers professional/educational services; or
      4. (D) a supervisee for whom the licensee/certificand/applicant has administrative or clinical responsibility.

   2. (2) Sexual intimacy/violation includes engaging in any conduct that is sexual or may be reasonably interpreted as sexual, including, but not limited to:

      1. (A) sexual intercourse;
      2. (B) genital contact;
      3. (C) oral to genital contact;
      4. (D) genital to anal contact;
      5. (E) oral to anal contact;
      6. (F) oral to oral contact;
      7. (G) touching breasts or genitals;
      8. (H) encouraging another to masturbate in the presence of the licensee/certificand/applicant;
      9. (I) masturbation by the licensee/certificand/applicant when another is present;
      10. (J) any bodily exposure of normally covered body parts.
5. (e) Who may report. Violations of sexual harassment, sexual impropriety, or sexual intimacies may be reported to the board by any of the parties involved or by an uninvolved party who has witnessed or become aware of the violation.
6. (f) Relationship to §465.36 of this title (relating to Ethics Code). This rule establishes the minimum standard for principles specified in §465.36.

Source Note:The provisions of this §465.33 adopted to be effective July 22, 1993, 18 TexReg 4502; amended to be effective March 8, 1996, 21 TexReg 1540.