Keene, New Hampshire psychologist Burton Hollenbeck is was indicted in April 2010 for engaging in sex with a former patient–a married woman. The state of New Hampshire is among 20 or so states that have a law that makes it a crime for a psychotherapist to engage in sexual contact with patient or formal patient. Hollenbeck moved to dismiss the indictments, arguing the state violated both his state and federal rights to substantive due process because it “criminalizes the private sexual conduct of consenting adults.” However, the law makes it clear that psychotherapy patients, by reason of their vulnerable position, are not capable of consent. The law makes it a criminal act for the therapist to engage the patient for up to a year after the termination of the doctor-patient relationship. Hollenbeck violated this but argued that the law is arbitrary. The Superior Court judge agreed with Hollenbeck’s argument and dismissed the charges against him in December 2010.
The prosecution then appealed.
In its 3-1 decision Wednesday (September 5), the New Hampshire Supreme Court said the state has a legitimate interest in protecting people whose ability to consent to sexual contact may be compromised by the inherent nature of the treatment relationship, and in maintaining the integrity of mental health professionals. The court reinstated 30 charges against Hollenbeck.
The case of a psychologist with a practice in Keene who was accused of having sex with a former patient is headed back to court.
Burton G. Hollenbeck Jr., 58, of Richmond faced 30 counts of aggravated felonious sexual assault before a Cheshire County Superior Court judge dismissed the charges.
Prosecutors appealed to the N.H. Supreme Court, which reversed the decision in a ruling released Wednesday.
Hollenbeck was accused of engaging in sexual conduct with the woman less than a year after her therapy with him ended, which violates state law, according to court documents.
A Cheshire County grand jury indicted Hollenbeck in April 2010 on 30 counts of aggravated felonious sexual assault between Feb. 1, 2008, and Dec. 9, 2008.
He agreed to turn in his license to practice mental health therapy in 2010, after the charges were filed.
Hollenbeck moved to dismiss the indictments in December 2010, arguing the state violated both his state and federal rights to substantive due process because it “criminalizes the private sexual conduct of consenting adults,” according to the Supreme Court decision.
A Cheshire County Superior Court judge agreed with Hollenbeck’s argument and dismissed all 30 charges in December 2010. The state then appealed.
In its 3-1 decision Wednesday, the N.H. Supreme Court said the state has a legitimate interest in protecting people whose ability to consent to sexual contact may be compromised by the inherent nature of the treatment relationship, and in maintaining the integrity of mental health professionals.
A one-year post treatment limit is imposed to protect patients’ ability to consent to sexual contact with their therapist, the N.H. Supreme Court said.
Hollenbeck argued that the one-year limitation is arbitrary.
The Supreme Court decided Hollenbeck did not meet his burden of proof and he has “no constitutionally protected right at stake.”
The Supreme Court then reversed the Superior Court decision, thereby reinstating all 30 charges.
Justice Gary Hicks disagreed with the majority decision made by Justice James Bassett and retired Justices Richard Galway and Edward Fitzgerald.
Hicks’s dissenting opinion was based on his belief that the Legislature went too far in enacting the law. He called the government intrusion into Hollenbeck’s private life “severe.”
Hollenbeck’s attorney, Cathy J. Green, said in a statement, “We are disappointed with the court’s majority opinion and agree with the strong dissent. We are confident that ultimately our client will be exonerated.”
According to two separate civil lawsuits filed against Hollenbeck in 2009 in Cheshire County Superior Court by the alleged victim and her husband, Hollenbeck provided therapy to both.
In June 2001 the alleged victim’s husband sought Hollenbeck for counseling, according to the husband’s lawsuit.
When Hollenbeck determined the husband didn’t need treatment, he terminated therapy.
In December 2004, the alleged victim and her husband began seeing Hollenbeck for marriage counseling.
Hollenbeck asked the alleged victim to have one-on-one therapy sessions with him after he learned that she had issues stemming from her past, according to both lawsuits.
Shortly after the wife started her private sessions with Hollenbeck, the doctor bought her golf equipment, gold and pearl earrings, paid her auto insurance, gave her $200 toward a trip to Europe and paid $50 for her monthly phone bill between March and November 2008, according to the husband’s lawsuit.
The wife and Hollenbeck became involved in a romantic relationship in February 2008, the husband’s lawsuit said.
In October of that year, Hollenbeck’s office manager blew the whistle on the alleged affair, but the wife and Hollenbeck denied the allegations, according to the lawsuit.
In December 2008, the wife came forward and admitted she was having an affair with Hollenbeck, according to the husband’s lawsuit. She then ended the relationship, according to her lawsuit.
When the wife told Hollenbeck to leave her alone, he then proceeded to contact her with harassing phone calls and texts, and stalked her, according to her lawsuit.
The alleged victim then sought an emergency order of protection against Hollenbeck in December 2008, according to the husband’s lawsuit.
Both the alleged victim and her husband are seeking hundreds of thousands of dollars in compensation for emotional distress, mental anguish, therapy, lost wages, legal fees and other damages, losses or expenses they say they suffered as a result of the alleged affair and Hollenbeck’s “wanton, malicious and oppressive” actions, according to both lawsuits.
The lawsuits have been suspended until Hollenbeck’s criminal case concludes.
Hollenbeck’s case will resume in Cheshire County Superior Court.
“We will pick up the case where we left off,” said Hillsborough County Attorney Dennis C. Hogan.
The N.H. Attorney General’s Office appointed the Hillsborough County Attorney to prosecute the case because of Hollenbeck’s contacts in Cheshire County, Hogan said.