The Seducers

by Martin Shepard

  “Arlene Lewis versus Jonas Lippman.”

  “Are opposing counsel ready?”

  “Yes, your honor.”

  “Yes, your honor.”

  Each attorney arose and gave the clerk his name and address as the court stenographer began his typing. That finished, defense counsel moved forward with a motion for dismissal.

  “If it please the court, the defendant moves for dismissal of this unprecedented suit on the basis of the New York State Civil Rights Law which bars civil suits on a variety of grounds including seduction. In 1971, a similar case was dismissed by Supreme Court Justice James Cerff on the grounds that it was barred.”

  Having concluded this, the tall, deep-voiced attorney in pinstriped suit turned to eye the jury. Immediately, plaintiff’s representative rose.

  “How say you, Mr. Newfield?” Judge Margolis asked.

  “Your honor. What my esteemed colleague failed to mention was that the case cited did not involve a psychiatrist.” He cast a harsh glance at opposing counsel. “Further, what my client charges is malpractice, not seduction. To dismiss this case on the grounds Mr. Rosenkrantz suggested would give every psychotherapist carte blanche to sleep with his patients.”

  “Both you gentlemen undoubtedly have more to say on this issue. Accordingly, I shall hear your arguments in my chambers.”

  He again sounded his gavel.

  “This court stands in recess for one hour.”

  Judge Margolis stepped down from his bench and was followed through the rear door by both lawyers. Those in the gallery stretched, looked about, smiled at one another, but remained fast in their seats. Jonas Lippman stood, walked through the partition’s gates and past the reporters in the first row. Immediately they followed him toward the main exit. As he opened the green doors he pulled up his jacket collar, pulled in his chin, shielded what could be seen of his face with his hands, and rapidly made his way past the photographers and spectators in the hallway to the privacy of the men’s room.

  31

  The fact that Margolis denied his mistrial motion came as no surprise. Certainly it was a motion worth making, if for no other reason than to alert the jury regarding seduction law. Who would deny that one or more of them might consider this point while deliberating; that even if intimacy were established they’d lean toward a not guilty vote?

  It was as important to judge the jury as it was to have them judge the evidence. In any trial, Norman tried to assess the predispositions of each member of that panel. A smile, frown, intense stare, or look of boredom was an important indicator of each person’s sympathies.

  Fortunately there was no statute prohibiting the seduction of jurors, for once he found his men or women, Norman played to them relentlessly, intending his remarks for their ears and looking in their direction whenever making a point.

  On raising his motion, he thought he’d seen a favorable response in the look of a long-haired college dropout taxi driver. This impression grew during the afternoon when Newfield made his opening remarks, conjuring up images of a man without scruples. Norman noted the skeptic’s arched eyebrow. Okay. The cabbie wanted to be on our side. But who else was there?

  Civil suits were harder to defend than criminal cases. Instead of a twelve-person jury, there were only six. In a criminal trial a unanimous vote was necessary for conviction. Under civil law a five to one majority sufficed to establish guilt.

  Newfield was clearly developing his jurors as well. Two women, one white, one black, both housewives, nodded attentively during his initial statement when he charged that “this doctor, to satisfy his own petty desires, took this poor sick woman and induced her, during the course of therapy, to have sex with him.

  “Further, that his perverse passions and lack of morality led him to extend these pseudotherapeutic cohabitations from his office to her residence, causing this dependent girl to fall in love with him.

  “It is my intention to demonstrate that as a result of these experiences, Miss Arlene Lewis suffered a nervous breakdown; a breakdown that was inevitable once, having satisfied his sexual appetites, this disgraceful man terminated treatment.”

  The women’s nods were augmented by the tight-lipped grimace of the retired Marine Corps colonel on the panel when Al, pointing contemptuously at the defendant, concluded that “people like Arlene have to be protected from the likes of men like this. That is why I shall ask you to award this lady $200,000 in damages to compensate her for the harm he has caused her and $50,000 in compensatory damages to punish him for what he has done.”

  For his part, Norman painted a contrasting scenario. It would not do to picture Arlene as an opportunistic litigant. He was sure that Newfield would take full advantage of her hospitalization by portraying an empathic picture of both her condition and her treatment; as in his opening remarks, when he claimed that “Lippman was as responsible for the electric current that flowed, repeatedly, through Arlene’s brain as was the hand of the doctor who administered the electroconvulsive therapy.”

  No use in arousing a backlash sympathy vote by attacking Al’s “poor victim.” Instead, in his opening, he sought to channel “evil intent” in another direction.

  “Granted,” said Norman, “that this poor lady does suffer from a mental illness. But that illness existed before she began treatment with Dr. Lippman, continued through her sessions with him, and is still in evidence this very day.” He could see the jurors cast assessing glances in Arlene’s direction. “And let me tell you,” he paused, looking first at his cabbie, then, more solemnly, at Al’s two housewives, “that no one has a monopoly on suffering. These allegations, aided, abetted and amplified by opposing counsel, have themselves inflicted enormous suffering.

  “Because of them, suspicion has clouded this good man’s reputation. And,” he added, noting with satisfaction both housewives beginning to nod again, “the stress and notoriety that these unwarranted accusations spawned have destroyed a happy marriage.

  “Now I am a lawyer, not a psychiatrist.” He turned to face Al Newfield. “I am not claiming ‘petty desires,’ ‘perverse passions,’ or any other motives to account for why these charges were brought. The analysis of plaintiff or her counsel is best left in the hands of professionals.

  “But what I do say is that if this woman is easily influenced, let us examine the influence exerted by her attorney in bringing this indecent suit.”

  Norman caught the flush of rage in Al’s face before returning to address the jury. Leaning both hands on the railing that encompassed them, he concluded:

  “If damages have been caused, they’ve been caused to the accused party. This defense contends that there is no conclusive evidence that Jonas Lippman’s treatment caused plaintiff any damages.

  “A quarter of a million dollars?” He rolled his eyes in disbelief. “She’s not entitled to five cents.”

  To Al’s dismay and his delight, Rosenkrantz had outlined his defense. It was an audacious move—particularly since he had little to go on—but effective. Something like a double reverse. The more Newfield demonstrated Arlene’s pliability, the more Norman might imply that this same pliability was capitalized upon by an attorney who had his own hidden agenda. The more Al substantiated Arlene’s craziness, the more doubt he might throw upon her credibility.

  If this was his intent, Norman still had to prove his case. And the testing ground during all of Tuesday and today came during examination and cross-examination of plaintiff’s psychiatrists.

  First in the docket was Dr. Gaylord Fisk, a tall, crewcut, white-haired, bow-tied man in his late fifties. After being sworn in, Newfield solicited his credentials: graduate of Harvard, professor emeritus at the Cornell University Medical School, author of a major textbook in clinical psychiatry, and advisor to the Judicial Council of the American Medical Association.

  “What is the function of the Judicial Council?” Al asked, beginning his direct examination.

  “The Council serves,” Fisk answered, in deep and measured
tones, “as the highest ethics board of organized medicine.”

  “Now, Dr. Fisk. You’ve been involved in the training of psychiatrists for many years, have you not?”

  “Yes. Eighteen years, to be exact.”

  “And in this capacity you have been either directly or indirectly involved in the treatment of a large number of patients?”

  “Between private consultations, my responsibilities at the hospital, and direct supervision of residents, I would say the number goes upward of five thousand.”

  “During that time have you ever come across incidents of analysts having sex with their patients?”

  “Unfortunately, yes.”

  “You say unfortunately.… Tell me, we hear so much about sex therapy these days,” he looked toward the jury for emphasis, “is it ever permissible for a psychiatrist to sleep with a patient?”

  “No.” The answer was curt, crisp, sure. “Sex therapy was pioneered by Dr. William Masters and Dr. Virginia Johnson. They’ve used their technique in working with married couples and single men who have trouble functioning sexually—although the work with single men has been discontinued. Occasionally, when treating unattached males, they’ve utilized ‘wife surrogates.’ These are trained women who function, under close medical supervision, as in-bed therapists.

  “No reputable sex therapy has ever been conducted in which ‘husband surrogates’ were employed for unattached females. Nor have any responsible physicians—men or women—ever functioned as in-bed therapists themselves. For the record, Masters and Johnson themselves have decried those instances they were aware of where patients came to their clinic after becoming sexually involved with a therapist.”

  “Then it does happen.”

  “Yes.”

  “Could you tell the court what the incidence of these occurrences is?”

  “That would be difficult. Masters and Johnson claimed that an alarmingly high proportion of their clients were so involved. Of course, they saw a select sampling of people. But psychiatrists are not likely to acknowledge sins in this area, for they know that such activities are clearly contraindicated. Intimacy with a patient is not only a direct violation of the Hippocratic oath, but can be devastating to the patient.”

  “In what way?”

  “It can make all sex seem evil, dirty and terrifying, make trust in the next psychiatrist impossible, and betray the belief in and ability to love.”

  “Tell me,” Al looked sympathetically at Arlene, “can it also trigger a schizophrenic breakdown?”

  “Yes. And I have seen several such instances over the years.”

  “And what, in your opinion, accounts for these unfortunate incidents?”

  “Psychiatric patients are particularly vulnerable to this form of exploitation because of their tendency to magnify the power of their doctors. This process is known as transference.”

  Judge Margolis, listening intently, interrupted to ask Fisk to further explain transference to the court.

  “Transference means that the patient sees the therapist as omnipotent, much as the small child views his parents or other adults. The patient wants to think the doctor has all the answers. This belief changes the patient’s perception of things.”

  “Does it,” the judge asked, “alter consciousness?”

  “No. Not in the way a drug will, for instance. But it does alter judgment.”

  Margolis pressed for a still clearer definition. “Is it something like hypnosis?”

  “That’s a fairly good analogy. In a sense, the person is hypnotized. And the sicker the patient, the more helpless—the more vulnerable—he or she is.”

  During this exchange, Al had moved to the side of the table nearest Arlene, who stared blankly ahead. Not a bad gesture, Norman thought, but unlike Newfield. He’d known him to be a slasher; a harsh, driving, attacking advocate, not one who readily displayed theatrical solicitousness. That was more Norman’s style. Touching her shoulder in a gesture of reassurance, Al moved forward again, and continued:

  “If a patient is so readily led, what should a therapist do if he becomes sexually attracted to her?”

  “Either control his emotions or refer that patient to another therapist. That is his moral responsibility.”

  “It’s that clear, is it?”

  “The training of psychiatrists specifically cautions them to resist the temptation to take such advantages.”

  “And if,” Al concluded, “they fail this responsibility? If, in fact, they do become sexually involved, regardless of their motivations?”

  Fisk looked at Al sternly. “If that occurred, the offending psychiatrist would have clearly violated the Code of Ethics of the American Psychiatric Association and stand guilty of malpractice.”

  “No further questions.”

  “Mr. Rosenkrantz,” Margolis asked as Newfield walked buoyantly back to his chair, “you’ve sat patiently through this testimony. Do you have any questions?”

  “Just a few.”

  In social conversation Norman would have enjoyed debating the efficacy of doctor-patient sex. Raising such questions here, though, would be prejudicial to his client. Fisk gave good expert testimony, all right. Credible, eminent and authoritative. Now he would try to utilize it for his own purpose.

  “Dr. Fisk,” he began, cordially and respectfully, “you did not yourself examine Miss Lewis, did you?”

  “No, I did not.”

  “But you are familiar with her case?”

  “Only from what I’ve read in the papers and the summary I received from her attorney.”

  “You know that she’d been hospitalized.”

  “Yes.”

  “And diagnosed as schizophrenic.”

  “Yes.”

  “As an authority on that illness I wonder if you could describe it in layman’s terms.”

  “Schizophrenia is probably the worst kind of mental illness we have. Such patients are the most fragile in that they have the least hold on reality.”

  “Are they always hospitalized?”

  “Not necessarily.”

  “Can they hold jobs and appear normal?”

  “They can, indeed. Many function quite well in professions that do not involve much interpersonal contact.”

  “Could such a person work, say, as an editor?”

  “They could.”

  “And would a casual observer note this malady?”

  “Not necessarily. But an expert should.”

  “Do schizophrenics hallucinate?”

  “They can.”

  Margolis again cut in. “Could you define hallucinate?”

  “The condition,” Fisk answered, “of seeing or hearing things that aren’t there.”

  “Are they delusional?”

  “Most always.”

  “Once more, doctor,” the judge interjected, “would you define that term for us nonpsychiatrists.”

  “A delusion is a strongly held belief about things, people or events which is contrary to fact. One can think of it as a misinterpretation of reality, a pseudoexplanation, a false belief.”

  “Now,” Norman continued, “have you ever known schizophrenics to be under the delusion that the therapist was in love with them?”

  “Yes,” Fisk conceded.

  “Or even to hallucinate an intimacy?”

  “That, too.”

  “If I may move to another point. You testified earlier about transference. Somewhat like hypnosis, I believe you said.”

  “That is correct.”

  “Is that process of transference exclusive for the treating psychiatrist?”

  “I’m not sure I understand that question.”

  “Nor do I,” Margolis added. “Could you make it more explicit?”

  “I’ll try. I meant, is it only the psychiatrist that the patient sees as omnipotent or is it all authority figures?”

  “All authority figures. But the therapist, chiefly.”

  “But it would include others, would it not? Such as teac
hers?”

  “Yes.”

  “Policemen?”

  “Yes.”

  “Lawyers?”

  “Objection.” Newfield was on his feet. “That is a leading question and rife with innuendo.”

  “Your honor,” Norman feigned surprise. “The term was introduced by this witness and enlarged upon by yourself and plaintiff’s counsel. I am merely trying to clarify it more fully.”

  Margolis eyed him suspiciously.

  “I will overrule this objection but caution you, sir, to make sure your questioning is along relevant lines.” Addressing the witness, he added, “You may answer.”

  “Yes. Lawyers, too.”

  “No further questions, your honor.” As Norman made his way back to the table, he caught his cabbie smiling and a look of surprise in the expression of the third female juror, a high school mathematics teacher.

  Tuesday afternoon it was Dr. Charles Clayburg’s turn. A corpulent associate professor of psychiatry at the Downstate Medical Center and a member of the New York Psychoanalytic Society, he balanced measured opinion with professional pomposity. This was the senior authority who would lend backing to young Art Matthews’ testimony; the author of a monograph on Sexual Intimacy Between Therapists and Patients: Twelve Case Studies.

  Again there was the swearing-in, a lengthy resumé to impress the jurors with Clayburg’s erudition, and a repetition of the morality-transference-helpless patient themes.

  “Can sex between a psychiatrist and a patient ever be justified?”

  “No.”

  “Do any acknowledged authorities advocate it?”

  “None does. It violates medical ethics and is invariably a disaster.”

  “You have researched this area, have you not?”

  “Yes, I have. I’ve interviewed a number of patients who have claimed to be intimate with their therapists.”

  “Were these allegations all true?”

  “No. Some were clearly imaginary, others questionable, but the ones I included in my study were conclusive.”

  Good question, Norman thought. If Al hadn’t asked it, I would have. By posing it now, Al establishes Clayburg as an even greater authority; a man able to distinguish false claims from real ones.