by: David G. Jensen, JD
former Staff Attorney
The Therapist
July/August 2009

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Lets suppose you are an intern sitting down at your desk or kitchen table and you have your favorite Starbucks drink in hand.¹ You have before you on your desk or kitchen table two applications: one is for the MFT examination and the other is for a job with a very well-respected nonprofit agency in your area. Both applications contain the following question: Have you ever been convicted of, pled guilty to, or pled nolo contendere to any misdemeanor or felony?

Unfortunately, six years ago, you pled guilty to a misdemeanor charge for shoplifting, a crime you committed as a nineteen-year-old. However, after completing your probation, you recall hiring a lawyer to have this crime expunged from your record, which the lawyer was able to do. So, how do you now answer these questions? Do you answer "Yes"; because you did the crime and did the time? Do you answer "No" because the crime has been expunged?

This is a trick question because, as we shall see, the answer depends on the application involved. The law here is multi-faceted and applicants, whether for intern registration or licensure, must understand these facets because answering these questions incorrectly can lead to serious repercussions, whether in the form of lost employment opportunities² or discipline from the Board of Behavioral Sciences ("BBS"). Before looking at these laws, however, let’s pause to consider some of the psychology of the situation.

Eraser’s Remorse
The last time I took a multiple-choice test, which was for the California Bar Exam, I suffered from something I came to understand as Eraser’s Remorse. After the test, I spent a lot of time worrying about whether I had completely erased some answers I had selected but then changed. Did I completely erase my first selection? Or, did I leave a smudge of pencil lead inside the answer bubble? Was I now going to get that question wrong because the machine reading my response would not be able to distinguish between the answer I erased and the one I filled in? Would I now fail the exam?

Eraser’s Remorse haunted me for days.

 

My desire to have my first selection completely erased from my answer sheet is somewhat akin to an individual’s desire to have his or her criminal history expunged from his or her life story. I say somewhat akin because I understand that a few questions on a licensing examination pale in comparison to felony or misdemeanor convictions, but the situations are similar in the sense that, once a change has been made, whether in answer choice or personal conduct, we want to be judged according to what we have done after the change. We do not want what we did before the change to adversely affect our present situation or our future goals, hopes, and dreams. Worrying about how one’s previous criminal history will affect one’s chances with the BBS is just another manifestation of Eraser’s Remorse, albeit in extreme form.

The desire to be judged on the basis of "who we are now" versus "who we were back then" surfaces for prospective MFTs during the application stage, whether for intern registration or licensure. Individuals who have committed misdemeanors or felonies, but who also want to become MFTs are typically contrite about their mistakes. They have matured. They know they made mistakes; they have accepted responsibility for those mistakes and triumphed over them, and that is highly commendable.

Consequently, having complied with the terms of their probation, having finished college and graduate school, and having hired an attorney to expunge their criminal history, prospective MFTs with criminal histories just want to forget about their past, once and for all, and that is very understandable. Unfortunately, for those pursuing intern registration or licensure as MFTs, criminal activity is never completely expunged. It must be disclosed to the BBS on applications for intern registration and examination eligibility. Here are the fundamental principles of law regarding the expungement of criminal convictions and guilty pleas:

1. If a defendant in a criminal case pleads guilty or nolo contendere to a crime, or is found guilty by a jury of committing a crime, once that defendant fulfills the terms and conditions of his or her probation, he or she can petition the court to have the criminal charge expunged from his or her record.³
2. If the defendant’s petition is granted, the court will withdraw his or her guilty plea or plea of nolo contendere and replace it with a plea of not guilty, or if the defendant was found guilty by a jury, the court will set aside that verdict.⁴
3. Once the guilty plea has been replaced with the "not guilty" language or the guilty verdict has been set aside, the defendant is "released from all penalties and disabilities resulting from the offense of which he or she has been convicted…."⁵
4. However, for prospective MFT interns and licensees, this process does not relieve the person of his or her obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for licensure by any state or local agency.⁶

Please do not fall for the canard that the conviction or plea does not have to be reported to the BBS because the conviction or plea has been expunged from your record! It is a lie; a half-truth; a "road" leading to BBS censure. But, on the other hand, please realize that if your plea or conviction has been expunged from your record you do not have to report the conviction or plea on an application for employment. So, don’t answer "Yes" when you can answer "No!"

So, with these rules in mind, we return to our latte-sipping intern who is mulling over an application for examination eligibility and an application for employment with the nonprofit agency.

Regarding the application for examination eligibility, the intern must answer "Yes" to the question about criminal convictions and guilty pleas. Although her guilty plea has been expunged, California law requires her to report the plea to the BBS. She did commit a crime, plead guilty to that crime, and she was over eighteen years of age when she committed the crime. Of course, she will also be able to submit evidence in her favor demonstrating rehabilitation, insight, maturity, and personal growth.

Such evidence, according to the BBS, could include letters of reference from employers, supervisors, professional counselors, instructors, parole officers, and/or probation officers, but one’s efforts at demonstrating rehabilitation should not end with just these sorts of letters. You should "think outside the box" about evidence tending to demonstrate change in the way you manage and conduct your life. Careful thought should be given to marshaling ANY evidence that has the potential of demonstrating your rehabilitation, insight, maturity, and personal growth, whatever that evidence is.

For instance, suppose that at the time you committed the crime you were spending your evenings and weekends drinking alcohol to excess, but now that you are clean and sober you spend your time on evenings and weekends coaching a little league baseball team, teaching people how to read, or singing in the church choir. Do not forget to include information like this because it helps demonstrate that the person you are today is not the same one who made some mistakes years ago. Be creative with your approach! Take your best shot! And, of course, the attorneys at CAMFT are available to consult with regarding these matters.

Depending on the particular crime of course, criminal conduct, in general, should not prohibit one from becoming an intern or from taking the first MFT examination, although such conduct may make it more difficult to get the intern registration or permission to take such examination. The BBS has the power, for instance, to compel a psychological evaluation of someone it believes may be unable to practice the profession safely.⁷ And, even if the BBS denies your application for intern registration or examination eligibility, you are able to challenge the BBS’s decision, and that mechanism has had some success over the last few years.

However, be forewarned, failing to report the convictions and pleas to the BBS can, has, and will continue to cause much trouble for prospective interns and licensees. Although you may want to forget about your past, you are going to have to visit it again when completing BBS applications for intern registration and examination eligibility. Own it! Acknowledge it! And, demonstrate how you have been rehabilitated and how you have matured!

Regarding the application for employment, the intern can answer "No" to the question about criminal convictions and guilty pleas. Since her guilty plea has been expunged, she has been "released from all penalties and disabilities resulting from the offense of which he or she has been convicted…."8 California law allows the offense to be treated as if it never occurred, so it is lawful to answer "No" to the question on the employment application, although the same question would have to be answered "Yes" on the MFT examination eligibility application. This inconsistency is not unlawful; it is sanctified by California law.

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David Jensen, JD, is a Staff Attorney for CAMFT. He is available to answer member calls regarding business, legal, and ethical issues.

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References

¹ For simplification purposes, an intern is being used, but this same issue could affect a trainee or postgraduate student applying for intern registration status and employment.
² Although California law mandates that a criminal conviction should not necessarily disqualify an applicant from employment, in reality, some employers will not consider applicants with criminal histories.
³ California Penal Code §1203.4(a)
⁴ California Penal Code §1203.4(a)
⁵ California Penal Code §1203.4(a)
⁶ California Penal Code §1203.4(a)
⁷ California Business & Professions Code §§ 820 and 4982.1
⁸ California Penal Code §1203.4(a)