CONCORD — The state may proceed with its prosecution of a Keene psychologist who surrendered his license to practice mental health therapy two years ago after being accused of engaging in sex with a former patient.

The 30 aggravated felonious sexual assault charges against Dr. Burton G. Hollenbeck, 58, of Richmond, were dismissed by Cheshire County Superior Court Judge Kenneth P. McHugh, who ruled that the law making it a crime for a pscyhologist to engage in sex with a former patient within a year of treatment violated both his state and federal rights to due process. Hollenbeck maintained the relationship was a consensual one.

The Supreme Court, in a ruling issued Wednesday, reversed that decision, sending the case back to Hillsborough County Superior Court, Southern District, for further proceedings. The case was transferred to Hillsborough County because of a conflict with the Cheshire County Attorney's Office.

The high court sided with prosecutors, agreeing that the state had 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 decision, however, was not a unanimous one and Justice Gary Hicks, in a strongly worded dissenting opinion, said the Legislature went too far in enacting the law. The degree of intrusion (into an individual's personal and private life) is severe, he wrote, with the defendant facing strict criminal liability and the state not needing to prove the relationship between the defendant and the woman actually impaired her ability to refuse consent.

“Rather the Legislature has determined that all patients are legally incapable, for an admittedly arbitrary period of one year after the termination of therapy, of consenting to sex with a former therapist. That determination applies whether the patient was in therapy for 10 years or one session, whether the sexual relationship began the day after therapy terminated or 364 days after termination. To declare all adult psychotherapy patients legally incapable of consenting to sex with their former therapist because the therapy relationship is one 'where consent might not easily be refused,” Lawrence, 539 U;S. at 578 (emphasis added by Hicks), and in so doing impose strict criminal liablity on the therapist even when the 'protected' partner was actually capable of giving or refusing consent and did, in fact, freely give it, simply goes too far. Although the issue is not before us, one might wonder about the burden thereby placed upon the rights of the 'protected,' but fully capable, partner,” Hicks wrote.

The Supreme Court, however, found that the kind of sexual relationship alleged in the Hollenbeck case, one that might not be easily refused, is not a constitutionally protected right. And, it said, the state articulated legitimate governmental interests in protecting those who are vulnerable to exploitation.

When the Legislature amended the law to pertain to therapists and their former patients in 1998, the court said lawmakers considered an article from the Council on Ethical and Judicial Affairs, American Medical Association, which said a sexual or romantic relationship that immediately follows the termination of a physician-patient relationship may be more suspect than one occurring after considerable time has passed. Research on psychotherapists indicated patients experienced strong feelings about their therapists for 5 to 10 years after treatment ends, according to the article.

“We conclude that the Legislature could reasonably conceive these facts to be true, and, thus, that RSA 632-A:2, I(g)(1) serves or could conceivably serve legitatimate governmental interests,” according to the opinion.

Lawyer Cathy Green of Manchester, who represents Hollenbeck, said they were disappointed with the majority opinion but “agree with Hicks' strong dissent and we are confident ultimately our client will be exonerated.”

Prosecutor Patricia LaFrance, first assistant Hillsborough County attorney, could not be reached for comment.

The case involved alleged consensual sex between Hollenbeck and a woman he treated in 2007. The sexual relationship took place between Feb. 1 and Dec. 9, 2008, according to the court decision.

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Pat Grossmith may be reached at pgrossmith@unionleader.com.