Warning: This story contains sexual details that might disturb some readers
A massage therapist caught making intimate video recordings of clients could face further legal action.
Deputy Health and Disability Commissioner Dr Vanessa Caldwell said the therapist, who filmed multiple people without their consent, was found to have sexually exploited consumers, breaching the Code of Health and Disability Services Consumers’ Rights.
There were five separate consumer complaints about the therapist's behaviour between February 2020 and May 2022. The name and location of the therapist has not been revealed.
"Making these recordings was a gross breach of trust and professional boundaries, and it is clear that this violation of privacy in the context of a consumer-provider relationship has had a significant and ongoing impact on the women involved," Dr Caldwell.
The case has now been referred to the Director of Proceedings to assess if further legal action is required.
It comes after an earlier police investigation had resulted in six charges and convictions of intentionally making an intimate visual recording of another person and one conviction of intentionally attempting to make an intimate visual recording. These related to four separate clients between April and May 2022.
The massage therapist, only named as "Mr A" in the report, was not a member of Massage New Zealand - a professional association for qualified massage therapists - or any other professional association. He holds a diploma in therapeutic massage that was obtained overseas.
However, Dr Caldwell said: "I remain of the view that his clients could have expected that his care would be provided in accordance with [Massage NZ] Code of Ethics."
Her report also found the therapist did not communicate his intention to massage sensitive areas, such as breasts or inner thighs.
He also failed to comply with accepted professional standards and boundaries regarding draping and the suggestion to his clients that they should remove their underwear.
The report noted it was also highly inappropriate for the massage therapist to discuss matters relating to sexual behaviour and attraction or orgasm.
In response to the commissioner's provisional report, the massage therapist said: "This fundamental breach caused, and continues to cause, significant emotional hurt and trauma to those women, as more fully described in the impact statements prepared for the court.
"My action also caused pain for my family and the community of [the town], which continues. It is not at all clear to me that there will ever be any way in which I can fully atone for the hurt my actions in making the illegal recordings has caused."
Client complaints
A client also noted inappropriate conversations the therapist made, including his previous wife having a "slimmer figure" and being "very different" to his current wife.
The massage therapist responded that he thought of this client as a friend when having such discussions.
"I was confused and in a way asking for help," he said. "She was a wife and mother. She had a point of view that might help me. I wasn't in a good place then. I was questioning everything. I felt my wife did not love me anymore."
Another client who complained recalled how on one occasion she felt that he had massaged "very close to [her] vaginal area".
"So, my legs were kind of in a P-shape and [Mr A would] work on my groin area, with his hands down, like fingers, obviously not touching my vagina, but just very close, inside that area of my leg," she said.
"I guess I knew that what he was doing seemed to be helping with the pain that I was getting… I guess I [kind of] just accepted it as part of the process.
"It was more like Jesus, like that was pretty close to my vagina."
She also described how he asked her to remove her clothing.
"Never have I been asked to remove my underwear by any previous massage therapists and when I was unwilling to do this, have your hands go up under my underwear and touch me where we both [know] you shouldn't have," she said.
In response, the therapist denied telling her to remove her underwear and said he did not want to massage under her underwear.
He said that during the massage he could feel that the woman's iliacus and psoas muscles were tight, along with the adductors of the hip. He added that the client did not say the massage was making her uncomfortable.
"I can't stop something I don't know about. She was getting relief from the pain, that was the feedback I received. I never touched her anywhere I did not think she was okay with. Anytime I asked if she was okay I would get a 'yup' from her."
During the investigation, it's noted the therapist told the Health and Disability Commission that he told all his clients they could undress to their level of comfort, but "more clothes, crappier massage".
"When you undress, undress to your level of comfort. [A lot] of people take off everything, some don't. I can work th[r]ough any modesty concerns just understand it is a simple equation. More clothes crappier massage, also the oil might stain you[r] clothes," his statement said.
Dr Caldwell recommended the therapist makes written apologies to all of the impacted clients if they wished to.
The massage therapist has advised that he does not intend to practice massage again. However, Dr Caldwell recommended that should he want to return to practice, he must make a number of changes including gaining membership with Massage New Zealand and completing a range of modules on informed consent and communication.
"In my view it is in the public interest to also hold Mr A to account for the breach findings discussed in this report, which were not the subject of the criminal proceedings," Dr Caldwell said.
"These include the failure to provide information that a consumer would expect to receive to enable them to give informed consent (Right 6(1)), providing services - including massage of sensitive areas - without informed consent (Right 7(1)), and failure to provide services that complied with professional standards with respect to draping practices, communication standards and documentation standards (Right 4(2))."
