N.J. Admin. Code § 13:37A-3.5

Current through Register Vol. 56, No. 21, November 4, 2024

Section 13:37A-3.5 - Sexual misconduct

(a) The purpose of this section is to identify for licensees conduct that shall be deemed sexual misconduct.

(b) As used in this section, the following terms have the following meanings:

"Client" means any person who is the recipient of massage or bodywork therapy.

"Client-therapist relationship" means a relationship between a licensee and a client in which the licensee owes a continuing duty to the client to render massage or bodywork therapy services consistent with his or her training and experience.

"Sexual contact" means the knowing touching of a person's body directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the licensee's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes, but is not limited to, the imposition of a part of the licensee's body upon a part of the client's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or client's body into or near the genital, anal or other opening of the other person's body. "Sexual contact" does not include the touching of a client's body that is necessary during the performance of a generally accepted and recognized massage and bodywork therapy procedure.

"Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or non-verbal conduct that is sexual in nature, which occurs in connection with a licensee's activities or role as a provider of massage and bodywork therapy services that is unwelcome or offensive to a reasonable person, or creates a hostile workplace environment, and the licensee knows, should know, or is told this; or is sufficiently severe or intense to be abusive to a reasonable person in that context. "Sexual harassment" may consist of a single extreme or severe act or of multiple acts and may include, but is not limited to, conduct of a licensee with a client, co-worker, employee, student, or supervisee whether or not such individual is in a subordinate position to the licensee.

"Spouse" means the husband, wife, civil union partner, domestic partner or fiancee of the licensee or an individual involved in a long-term committed relationship with the licensee. For purposes of this definition, a long-term committed relationship means a relationship that is at least six months in duration.

(c) A licensee shall not engage in sexual contact with a client with whom he or she has a client-therapist relationship. The client-therapist relationship is ongoing for purposes of this section, unless more than three months has elapsed since the last massage and bodywork therapy was rendered.

(d) A licensee shall not seek or solicit sexual contact with a client with whom he or she has a client-therapist relationship and shall not seek or solicit sexual contact with any person in exchange for professional services.

(e) A licensee shall not engage in any discussion of an intimate sexual nature with a person with whom the licensee has a client-therapist relationship, unless that discussion is directly related to a proper massage and bodywork therapy purpose. Such discussion shall not include disclosure by the licensee of his or her own sexual relationships.

(f) A licensee shall provide privacy and therapy conditions that prevent the exposure of the unclothed body of the client. Appropriate draping measures shall be employed to protect client privacy.

(g) A licensee shall not engage in sexual harassment either within or outside of the professional setting.

(h) A licensee shall not engage in any other activity that would lead a reasonable person to believe that the activity serves the licensee's personal prurient interests or which is for the sexual arousal, or sexual gratification, of the licensee or client or which constitutes an act of sexual abuse.

(i) Violation of any of the prohibitions or directives set forth in (c) through (h) above shall constitute professional misconduct pursuant to 45:1-21(e).

(j) Nothing in this section shall be construed to prevent a licensee from rendering massage or bodywork therapy to a spouse, providing that the rendering of such massage or bodywork therapy is consistent with accepted standards of massage or bodywork therapy and that the performance of therapy is not utilized to exploit the spouse for the sexual arousal or sexual gratification of the licensee.

(k) It shall not be a defense to any action under this section that:

1. The client solicited or consented to sexual contact with the licensee; or

2. The licensee is in love with or held affection for the client.

N.J. Admin. Code § 13:37A-3.5