State v. Michael A. DeLain, 2005 WI 52, affirming, as modified, 2004 WI App 79
For DeLain: Robert R. Henak
¶9 To obtain a conviction for a violation of Wis. Stat. § 940.22(2), the State must prove three elements beyond a reasonable doubt: (1) that the defendant was or held himself or herself out to be a therapist; (2) that the defendant had intentional sexual contact with a patient or client; and (3) that the sexual contact occurred during an ongoing therapist-patient or therapist-client relationship.  State v. Miller, 2002 WI App 197, ¶17 n.5, 257 Wis. 2d 124, 650 N.W.2d 850; see also State v. Ambrose, 196 Wis. 2d 768, 777, 540 N.W.2d 208 (Ct. App. 1995) (holding that the actor and the complainant “must be engaged in a professional therapist-patient/client relationship”).
 We note that the pattern jury instructions open by stating, “Sexual exploitation by a therapist, as defined in § 940.22 . . . is committed by one who is or holds himself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship,” Wis JI——Criminal 1248 (emphasis added). This opening statement appropriately includes intent. However, in stating that the second element of the crime is the defendant’s sexual contact with the victim during the relationship, and in describing this second element, the instructions fail to include intent. See id. (stating, “Second, that the defendant had sexual contact with (name of victim),” and later stating, “The second element requires that the defendant had sexual contact with (name of victim).”). We therefore suggest review of these instructions.
Issue/Holding: Whether there is an ongoing therapist-patient relationship, within the meaning of § 940.22(2) (2000-02) is determined under “the totality of the circumstances,” ¶24 (rejecting court of appeals’ construction, which applied a subjective test turning on the therapist’s intent). Thus, such a relationship may exist, even though (as here) the “patient” is acting as a police agent and secretly recording the session (text of lengthy footnote omitted):
¶24 Accordingly, we disavow the court of appeals discussion of “intentionally.” DeLain, 272 Wis. 2d 356, ¶¶10-11. Instead, we conclude that it is the totality of the circumstances, which in this case included a stipulation that DeLain provided therapy to J.F. on all her visits, that determines whether there was an ongoing therapist-patient relationship when sexual contact occurred. A defendant’s state of mind is one factor in this totality of the circumstances analysis. Further, a secret unilateral action of a patient may also be a factor, although not necessarily the decisive factor, as urged by DeLain. Similarly, the explicit remarks of one party to the other regarding the status of the relationship may be a factor, but not necessarily the dispositive factor, as proposed by the State. Other factors that may appropriately enter into the analysis include, but are not limited to: how much time has gone by since the last therapy session; how close together the therapy sessions had been to each other; the age of the patient; the particular vulnerabilities experienced by the patient as a result of his or her mental health issues; and the ethical obligations of the therapist’s profession.  Only upon consideration of all the circumstances that are relevant in a given case may we fully address the legislature’s concern for protecting the public.
The court concludes that this element was proven, ¶25, stressing in particular the parties’ stipulation that DeLain was performing psychotherapy on J.F. at the relevant time period, and that J.F. never formally withdrew from therapy.