A law rubs married couples wrong

In Minnesota, massage therapists can touch, but they better not touch

Sunday, August 13, 2006
By Jon Tevlin, Star Tribune

MINNEAPOLIS — LaRae Lundeen Fjellman likes to think her massage and alternative health business in Lindstrom, Minn., has a small-town touch. She knows most of her clients personally and often gives them presents, such as flowers or banana bread, on special occasions. But when she got too close to one of them and fell for former client Kirk Fjellman, who was divorcing his wife, she was surprised to learn that Minnesota bans massage therapists from having sexual relations with former clients for two years.

Kirk says his ex-wife reported the new Ms. Fjellman to state officials in 2004. Now, the state is seeking to fine and possibly prohibit Ms. Fjellman from practicing in Minnesota for having sex with someone who has become her husband.

“There’s no harm, no victim,” Mr. Fjellman said. “What’s this about?”

The case, which is before a judge and may be decided this month, could have implications for the private lives of an array of alternative health care providers — and anyone who has ever had a crush on a yoga instructor, acupressurist or even someone selling 10-minute back rubs at a mall.

Documents filed by the Department of Health say the therapist clearly violated an unusual state law passed by the Legislature in 2000. Ms. Fjellman does not deny she violated the statute, but says she didn’t know it existed.

Because the case is in litigation and sealed, state officials cannot discuss it, said Tom Hiendlmayr, director of the Health Occupations Program.

Mr. Fjellman’s ex-wife is not named in the documents and could not be reached.

Mr. Hiendlmayr said the statute is “part of an umbrella law to protect consumers” from unlicensed alternative care practitioners, ranging from herbalists to folk remedy practitioners. The statute does not target massage therapists and there does not have to be a victim, he said.

In an argument filed to the Office of Administrative Hearings in the Health Department, the state’s lawyers said sex prohibitions are appropriate because “a therapeutic relationship exists between the massage therapist and the client, and inherent in that relationship is a power differential.”

The state supported its arguments with excerpts from “The Ethics of Touch,” a respected industry guideline for practitioners. But the book’s author, Ben Benjamin, said in an interview that some of that text was taken out of context.

“If she’s sleeping with the guy while he’s a client, it’s unethical,” Mr. Benjamin said. “But if they liked each other and something happened over time, you can’t fault that. Had this behavior occurred anywhere else besides Minnesota, it wouldn’t be an issue.”

Mr. Fjellman is a licensed chemical dependency counselor and says he is fully aware of boundary issues; in fact, he is not allowed to date his current or past clients.

The state does not ordinarily initiate investigations, but it was obligated to act when it received the complaint from the ex-wife, Mr. Hiendlmayr said. But Susan Gallagher, an attorney for Mr. Fjellman, said the state should exercise discretion in such cases. The state, she said, is seeking to restrict the couple’s “right to fall in love, get married and do what all married people do.”

It is not clear how the two-year ban became law in 2000. Since then, the department has received 80 complaints against “complementary and alternative health care” practitioners, 30 of those against massage therapists, according to Mr. Hiendlmayr.

Ms. Fjellman began seeing her future husband at her business, the Balanced Body, in Lindstrom in October 2000 for numbness in his arms. He continued as a client until May 2002. The Fjellmans said in an interview they never had sexual relations during that time, though they acknowledged occasionally having lunch and attending a class together. They also helped drive a mutual friend to another state, which included overnight stays at hotels, they said.

“To tell you the truth, we weren’t attracted to each other physically,” Ms. Fjellman said.

“I always preferred skinny minnies,” Mr. Fjellman said. “LaRae is more full-figured.”

Both say their marriages were on the rocks and heading toward divorce. He eventually moved into an apartment, and a month after last seeing her as a client, she moved in with him as a roommate for “financial reasons,” they say.

The couple say they began dating in July 2002 and first had sex that fall. They became engaged in March 2003 and married in September of that year. Mr. Hiendlmayr said that even if they had waited until marriage to have sex, they would have violated the rule.

Mr. Fjellman says his ex-wife accused him of having an affair while he was a client, and gave the state bills from TGI Friday’s and hotels as proof. A transcript of the state’s interview with LaRae also dwells on their relationship while he was a client.

During their professional relationship, LaRae said, she gave Kirk flowers on the anniversary of his sobriety, and often gave small gifts to clients. He gave her a magazine subscription and a $100 gift certificate after learning clients usually tip their therapists, which he had not.

The state, however, cites the exchanges as further “boundary issues,” and contends that taking tips is unethical because of “transference,” a process in which trust in the practitioner leads to increased reliance and vulnerability.

Les Sweeney, president of the Associated Bodywork and Massage Professionals, said, however, that tipping “is the norm.” Mr. Sweeney calls Minnesota’s rule “overbearing.”

“I didn’t see that Minnesota has a waiting period on purchasing guns,” he said.

Ms. Gallagher said that if the administrative law judge hearing the case can’t decide on its constitutionality or rules against Ms. Fjellman, the next step is the State Court of Appeals.

The ethics of therapy

Rules for licensed and unlicensed health care practitioners vary widely among the various professions and states. Hospitals or providers often have stricter rules. Generally, the larger the power imbalance between practitioner and client, and the more vulnerable the client, the stricter the rules. Here are general guidelines:

Psychiatrists: It is never proper for psychiatrists to have sexual relations with a current or former patient whose treatment involved psychotherapy.

Social workers: The professional code prohibits sex with former clients, with a few exceptions in which the social worker has a burden to prove there has been no coercion.

Physicians and nurses not involved in psychotherapy: No specific time limits for former patients. Physicians must discuss ramifications and cease treatment.

Chiropractors: In Minnesota, chiropractors must assume a client will be a patient for two years, and cannot have a sexual relationship with them during that time.