Sacred Calling, Secular Accountability

Law and Ethics in Complementary and Spiritual Counseling

Ronald Bullis

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134944095
• Topic: Psychology
• Subtopic: Mental Health in Psychology
• Index: Psychology

Increasingly, counselors are practicing spiritual or complementary interventions. In balance, how counselors use such interventions is under closer examination by law. This effort to protect clients is embedded in ethical and legal principles, but rarely addressed in the mental health literature. This book will fill that gap by offering a clear understanding of the context of the law. Detailed case studies are given in each chapter as a centerpiece to the understanding, interpretation, and application of the laws. The author, with his unique qualifications in legal and spiritual areas, pays critical attention to the issues of culture throughout this resource that includes handy appendices of a legal glossary, abbreviations, literature review, and an exercise on how to find the law.

Jurisprudence and Spiritual or Complementary Interventions

Objectives

1. To explain key concepts in law—jurisdiction, levels of courts, precedence, and stare decisis, the differences between the civil and criminal law, and First Amendment protection and limitations.

Without such foundations, reading law cases and decisions cannot be either properly interpreted or applied. This entire chapter introduces the broad outlines of legal issues inherent using complementary therapies.

2. To note the “religious” exemption to state counseling laws.

Did you ever wonder why clergy and other religious professionals can offer counseling without benefit of state licensure? The short answer is the First Amendment. A longer answer enables the counselor to more fully understand the ethical and legal dynamics inherent in such diverse legal matters as what the difference is between a client suing a counselor in civil court and when a district attorney issues an arrest warrant when both offenses stem from the same facts? Or what does it mean to appeal a decision against you? Under what circumstances can spiritual or complementary counselors claim First Amendment rights? When they meditate with a client? When they engage in prayer or discuss religious or spiritual values with a client? Can school counselors be accused of infringing First Amendment rights when they discuss values or morals with a student?

3. To begin to understand how the First Amendment law applies to school counselors.

As government organizations, the law applies to schools differently than it does to private counselors. This chapter acquaints the reader with some legal issues posed by public counselors and complementary and spiritual interventions.

4. To offer a historical context of early legal actions addressing alternative and spiritual counseling.

Specific examples include the criminalization of fortune telling and practicing astrology, as well as negligence (civil) suits for practicing exorcism. This chapter outlines the four primary elements of a malpractice action. Counselors might take offense at these Sacred Calling, Secular Accountability elements of malpractice being applied to them. The fact remains that there is no longer any bright line of distinction between traditional counseling methods and complementary therapies. For example, my own empirical research reveals that some counselors use exorcism in their practice. Counselors who use guided imagery, past-life regression, or the enhancement of psychic, shamanic, telepathic, or prophetic abilities, in fact, might well fall into the criminal sanctions imposed from the more strict statutes. Where one state licensing board may not blink at a counselor using past-life regression or induced trance techniques, another licensing board may raise ethical issues. Prudent counselors have their fingers on the pulse of their state and private licensing boards and are prepared to defend their prudent practices both legally and ethically.

For being a rather litigious society, many know little about the mechanics of law. Misunderstandings abound about the sources and implications of law and legal decisions. Counselors cannot afford such misinformation. This chapter begins with an overview of the sources and key principles of law.

This chapter is extremely important because it outlines crucial legal concepts, without which many may misconstrue the nature and impact of legal decisions. Without such an introduction, the later descriptions of law cases and statutes may be misleading or misunderstood. It is a truism that “what you don't know about the law is bad, but what you think you know about the law is worse.”

Case Study: The Counselor Without Consent

A hypnotherapist and counselor appealed his conviction on four rape charges (State v. Speed, 1998). He was convicted under a statute many states have enacted that specifies a charge of 2^nd degree rape when the alleged perpetrator is a health care provider, when the victim is a client, and when the intercourse occurs during an interview or treatment session. The counselor had a statutory right to assert the affirmative defense that the clients consented, with the knowledge that the sex was not therapeutic. These “therapeutic exploitation” statutes are treated with some depth in Chapter 2. Such statutes have been enacted in several states and can be considered a trend in the law about which counselors need take notice and action (Bullis, 1995).

Five former clients testified at the defendant's trial. Three were complaining witnesses. They testified that the defendant suggested sex in the context of therapy, usually in connection with Tantric sex. Tantric sex—a technique of sexual yoga or sexual philosophy—has sometimes been the source of spiritual energy or development, and the source of some law cases (Bullis, 1996). The defendant claimed that he used his office for both Tantric sex and counseling, but that he never mixed the two. He admitted that he had sex with three of his clients in his office and he admitted that he made therapeutic tapes for them. One witness testified that her sexual relations were separate from Tantric exercises and that the defendant never charged the client when they had sexual intercourse. Given this evidence, the appellate court ruled that a reasonable trier of fact (judge or jury) could find him guilty. The counselor lost his appeal and his conviction stood.

This case illustrates points we will discuss later in this chapter. First, this case is a criminal case, not a civil case. The statute under which he was convicted has been noted. So, his penalty, a felony, may well be jail, probation, or at least a hefty fine. In a civil case, the penalty can only be money damages.

Second, while this is a criminal case, the defendant may also be civilly liable and subject to disciplinary action by his state licensing board and/or his professional association. One penalty does not immunize someone from other penalties.

Third, this case was taken on appeal. That means that the counselor, found guilty at the lower, trial court, asked the judges to review his conviction. They agreed but did not retry the case. The appeal just heard lawyers reargue some of the legal points before a panel of judges from a higher court. Had the appellate court ruled in his favor, they may have thrown out his conviction and ordered him a new trial.

Fourth, this case was decided by a court of appeals in the state of Washington. This decision has no effect on other state courts. Federal courts, whose jurisdiction (authority) lies within that state can use it to interpret Washington State law. This case has limited jurisdiction. Thus, it is unwise to think that a counselor practicing in California is bound by this decision. The next sections address principles of law in greater depth.

Sources of Law

How many times has someone asserted, “That's against the law!” or claimed, “That's perfectly legal!”? The proper retort from a professional is, “What is the statute or case?” Further, the more sophisticated questioner will ask, “What is the jurisdiction of the court?”

These are no idle questions. They go directly to the validity of assertions about what the law is and how widely the law applies.

There are principally two sources of law: statutes or case law. Statutes are the ordinances passed by governments. Whether passed by municipalities, states, or the federal government, such rules are the statutes controlling only that level of government. Of course, a statute passed by the Iowa state legislature has little or no effect in New York State. We will discuss more about the concept of jurisdiction in the next section.

Regulations, including executive orders, are a form of statute. For example, the state legislature may empower an organ of state government to promulgate the rules for licensing psychologists, social workers, or other counselors. While the full legislature may not have voted upon the specific regulations, they have empowered a department or commission to enact regulations on its behalf. Regulations, thus, have the force of statutes. The Code of Federal Regulations (C.F.R.) is an example of federal law promulgated by, say, the Departments of Energy or Education. State and local governments enact similar law.

Judicial decisions are law by another route. Case law are the legal decisions judges make from the bench. In American jurisprudence, the branch of the government called the judiciary (judges) have the authority to interpret statutes and to hold statutes unconstitutional. This is part of the American concept of “checks and balances.”

The U.S. Supreme Court has overturned many state and federal laws. By the same token, they have interpreted the constitution and other statutes to, in effect, make law. A prime example of where the U.S. Supreme Court made its own law was in the case of Loving v. Virginia (1967). In this case, the Court held that a Virginia Statute, prohibiting blacks and whites from marrying, was unconstitutional. Upon the date of this decision, the Virginia statute, and those of the other 16 states with similar statues, became null and void. Thus, the Court became a legislature by eliminating states’ law.

Courts can create law as well as overturn it. In Miranda v. Arizona (1966), the court required that those detained in “custodial surroundings” be advised of constitutional safeguards. Known by heart by every crime drama buff, this warning includes the right “to remain silent but if you do speak, anything you do say can be used against you in a court of law.” A right to an attorney is also included. This ruling, of course, applied to all U.S. jurisdictions.

Certainly, the U.S. Supreme Court is in a privileged position. All other courts and legislatures are under its power-that is to say, jurisdiction. This is not true for all courts or legislatures.

The jurisprudence of jurisdiction

Jurisdiction means “power.” State legislatures have the jurisdiction over their own states. They cannot legislate beyond their own borders.

The same is true for courts. The jurisdiction of courts is often thought of in terms of “levels.” Each state, and the federal government, has distinctive levels of courts which have separate levels of jurisdiction. Grasping these levels is often confusing, however, doing so is extremely important to understand how significant or how far-reaching the decision is. A trial court decision, while it may receive considerable notoriety, may have limited legal significance. Thus, every legal decision must be viewed in the context of jurisdiction.

Jurisdiction information is important for counselors to know because a case of a lower jurisdiction may not apply to the counselor's practice—even if the counselor is practicing in the same state where the decision was made. For example, a New York Supreme Court sitting in Albany does not have jurisdiction over a Supreme Court sitting in Manhattan. A counselor may read that a New York Supreme Court's decision from Albany may now be the law—when this is not so, unless courts apply the same rule in Manhattan or an Appellate Court says so.

The following chart illustrates both the similar and varying names for these court “levels.” These levels are depicted from the highest (top) to the lowest (bottom).

Federal	Virginia	New York
Supreme Court	Supreme Court	Court of Appeals
Court of Appeals	Court of Appeals	Supreme Court, Appellate Division
	Circuit Court
District Court	District Court	Supreme Court

Four points need to be made in reference to this chart. First, note that some states have different names for similar court jurisdictions. For example, New York State calls their lowest or trial court the “Supreme Court” while Virginia and the federal systems reserve that title for their highest court.

Second, the lowest courts are called “trial” courts. The trial courts are the courts where innocence or guilt is tried by a judge or jury. While high drama, the O.J. Simpson trial was held in California's court of least jurisdiction—their trial court. If an appeal were taken, there would be no jury, just lawyers arguing their cases before a judge or a panel of judges.

Third, each court level has both a subject and a geographical jurisdiction. Most court levels, listed above, will hear most legal issues, including those dealing with counselors and mental health professionals and their legal problems arising from practice.

However, most states have some specialized courts such as military courts or bankruptcy courts.

Geographical jurisdiction is of more immediate importance. Generally, the lower the court, the less the geography of its power. For example, there are two federal district courts in Virginia. The Eastern District Court sits (hears cases) in Richmond. The Western District Court sits in Roanoke. The Eastern District Court and the Western District Court divide their power between the eastern and western that areas of the state.

Should an appeal be taken from one of these federal courts, that appeal would be addressed by the U.S. Court of Appeals for the Fourth Circuit which also sits in Richmond. If an appeal were taken from the Circuit Court, it would be go to the U.S. Supreme Court.

A state case also could end up in the Supreme Court, but by a different route. For example, if a case decided in the Henrico County District Court in Virginia is appealed, it would be heard in the Virginia Circuit Court of Appeals. From there it m...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgements
• Preface
• Prologue
• Chapter 1 Jurisprudence and Spiritual or Complementary Interventions
• Chapter 2 Criminal Charges
• Chapter 3 Civil Liabilities
• Chapter 4 Licensure and Insurance Issues
• Chapter 5 Ethical Implications and Ethical Models for the New Millennium
• Chapter 6 Religious Affiliation, “Cults,” Coercion, and Counseling
• Chapter 7 The “Cultural Defense,” Liability in School Counseling, and Vicarious Liability for Social Work Schools
• Chapter 8 A Brief Afterword
• Appendices
• References
• Index