(concurring in part and concurring in result ⅛ part).
I concur with Justice Henderson as to Issue I and concur in result as to Issue II.
The crux of Issue II is the proper interpretation “of SDCL 36-26-30(2). I depart from Justice Henderson’s opinion, because I believe that this statutory provision allows for some narrow discovery regarding communications between Hess and his social worker.
In November 1986, Weisbeek’s wife, Cindy, began counseling with Hess. In June 1987, she began treatment with other counselors at Hess’s clinic and reportedly did not receive any professional counseling from Hess after June 1987. Hess maintains that he did not begin his relationship with Weisbeck’s wife until March 1989, twenty months after she had ceased being his patient. Hess acknowledges that he had sexual relations with Weis-beck’s wife in “late 1989.”1 Weisbeek contends that Hess was seeing his wife at least as early as October 1988, one year and four months after treatment with Hess. Weis-beck’s tort action revolves around allegations that Hess breached his duty as a psychologist in forming a sexual relationship with Weisbeck’s wife, a former patient.
In response to a motion to compel filed by Weisbeek, the trial court ordered discovery of all communications between Hess and his social worker, Tom Terry. Psychologist Hess appeals the trial court order, claiming that all of his discussions with his social worker fall within the privilege set out in SDCL 36-26-30. This statute provides in relevant part:
No licensed certified social worker, social worker, or social work associate or his employee may disclose any information he may have acquired from persons consulting him in his professional capacity that was necessary to enable him to render services in his professional capacity to those persons except:
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(2) That a licensed certified social worker, licensed social worker, or licensed social work associate shall not be required to treat as confidential a communication that reveals the contemplation of a crime or a harmful act[.]
SDCL 36-26-30. Weisbeek counters that Hess’s sexual relationship with his former patient, Weisbeck’s wife, constituted a “harmful act.” He therefore claims that the psychologist’s discussions with his social worker regarding this relationship and any other relationships with former patients fall within the SDCL 36-26-30(2) exception to the social worker privilege.
Analysis of the arguments presented by the parties reveals two subissues. The first *369is whether psychologist Hess’s relationship with a former patient constitutes a “harmful act” within the meaning of SDCL 36-26-30(2). If it is a harmful act, then the second subissue is the scope of discovery permitted by a statute which allows disclosure of “a communication that reveals the contemplation of a crime or a harmful act.”
As noted by Justice Henderson, there are no South Dakota cases or statutes which address whether criminal or civil liability may be imposed on a psychotherapist who engages in sexual relations with a former patient. Justice Henderson therefore argues that psychologist Hess’s sexual involvement with a former patient is not a harmful act under SDCL 36-26-30(2). However, I believe the better argument is that such contact constitutes a harmful act for purposes of the privilege statute.
Although South Dakota has not spoken to the issue, some states have considered the question of civil liability for sexual contact between mental health care professionals and former patients. Both California and Minnesota have created a cause of action for money damages against psychotherapists who engage in sexual contact with former patients within two years following the termination of therapy. Minn.Stat. § 148A.02 (1992); Cal. Civ.Code § 43.93 (West 1993).
Even in the absence of an express statutory imposition of criminal or civil liability, there is persuasive authority for the proposition that sexual contact between a psychotherapist and a former patient is a harmful act. In Noto v. St. Vincent’s Hospital and Medical Center of New York, 142 Misc.2d 292, 537 N.Y.S.2d 446 (N.Y.Sup.Ct.1988), aff'd, 160 A.D.2d 656, 559 N.Y.S.2d 510 (N.Y.App.Div.1990), cert. denied, 76 N.Y.2d 714, 564 N.Y.S.2d 718, 565 N.E.2d 1269 (N.Y. 1990), a New York trial court considered whether sexual relations with a patient after termination of a professional psychiatric relationship could give rise to a medical malpractice action. The plaintiff patient had been under the care of the psychiatrist while receiving inpatient treatment for depression, drug and alcohol dependency and “seductive behavior.” Id. at 447. The psychiatrist then rotated to another unit. Id. After the plaintiff patient’s discharge, the psychiatrist entered into a personal relationship with the plaintiff in which they drank alcohol, smoked marijuana and had several sexual encounters. Id.
The New York trial court noted an absence of any explicit statutory cause of action arising out of sexual contact between a psychiatrist and a former patient. Id. at 448. Nevertheless, the court concluded that such behavior was actionable. Id. The court rested its decision on the facts of the case and on an expert opinion indicating that “engaging in a sexual relationship with a current or former patient is a departure from good and accepted psychiatric practice.” Id. at 447-48. In the court’s opinion, the cause of action was analogous to a claim for medical malpractice based on the seduction of a patient. Id. at 448-49. See also Stevenson v. Goomar, 148 A.D.2d 217, 544 N.Y.S.2d 690, 696 (N.Y.App.Div.1989), cert. denied, 74 N.Y.2d 945, 550 N.Y.S.2d 278, 549 N.E.2d 480 (N.Y.1989) (“Sexual exploitation of a patient during or even after a course of treatment, the harmful effects of which are by now well recognized and unanimously condemned within the health professions, is a clear violation of the duty of care the physician owes a patient and, thus, constitutes malpractice even if the sexual conduct was not itself done under the guise of treatment.”) (citations omitted).
Considerations of professional responsibility are also relevant to a determination of what constitutes a “harmful act.” The American Psychological Association (APA), a scientific and professional society of psychologists, publishes Ethical Principles of Psychologists and Code of Conduct. At the time psychologist Hess began his relationship with Weisbeck’s wife, the Ethical Principles of Psychologists stated in relevant part:
Psychologists are continually cognizant of their own needs and of their potentially influential position vis-a-vis persons such as clients, students and subordinates. They avoid exploiting the trust and dependency of such persons. Psychologists make every effort to avoid dual relationships that could impair their professional judgment or increase the risk of exploitation. Examples of such dual relationships *370include, but are not limited to, research with and treatment of employees, students, supervisees, close friends or relatives.' Sexual intimacies with clients are unethical.... Psychologists do not exploit then-professional relationships with clients, su-pervisees, students, employees, or research participants sexually or otherwise. Psychologists do not condone or engage in sexual harassment. Sexual harassment is defined as ■ deliberate or repeated comments, gestures, or physical contacts of a sexual nature that are unwanted by the recipient.
American Psychological Association, Inc., Ethical Principles of Psychologists (1989) (reprinted in Rena A. Gorlin, Codes of Professional Responsibility 252-58 (2nd ed. 1990). In December 1992, after Weisbeck had filed his complaint but before issuance of the trial court’s discovery order, the APA amended its ethical code to read:
4.07 Sexual Intimacies with Former Therapy Patients (a) Psychologists do not engage in sexual intimacies with a former therapy patient or client for at least two years after cessation or termination of professional services, (b) Because sexual intimacies with a former therapy patient or client are so frequently harmful to the patient or client, and because such intimacies undermine public confidence in the psychology profession and thereby deter the public’s use of needed services, psychologists do not engage in sexual intimacies with former therapy patients and clients even after a two-year interval except in the most unusual circumstances. The psychologist who engages in such activity after the two years following cessation or termination of treatment bears the burden of demonstrating that there has been no exploitation, in light of all relevant factors, including (1) the amount of time that has passed since therapy terminated, (2) the nature and duration of the therapy, (3) the circumstances of termination, (4) the patient’s or client’s personal history, (5) the patient’s or client’s current mental status, (6) the likelihood of adverse impact on the patient or client and others, and (7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the patient or client.
American Psychological Association, Inc., Ethical Principles of Psychologists and Code of Conduct 9 (1992). Importantly, the amended Ethical Principles indicate that sexual intimacies with a former therapy patient or client are “frequently harmful to the patient or client.” Id. The Ethical Principles also state that “such intimacies undermine public confidence in the psychology profession and thereby deter the public’s use of needed services.” Id. These statements, set forth by a professional association of psychologists, weigh heavily in favor of a finding that sexual contact with a former patient constitutes a “harmful act” for purposes of limiting the social worker privilege.
Although Justice Henderson stresses that the APA ethical code did not expressly prohibit sexual relationships with former patients at the time Hess framed his relationship with Weisbeck’s wife, I believe that the ethical code as it existed put Hess on notice that sexual intimacy between a psychologist and a ■ patient was improper. The ethical provisions in place at that time instructed psychologists to avoid “dual relationships that could impair their professional judgment or increase the risk of exploitation.” American Psychological Association, Inc., Ethical Principles of Psychologists (1989) (reprinted in Rena A. Gorlin, Codes of Professional Responsibility 252 (1990)). The ethical code further provided, “Examples of such dual relationships include, but are not limited to, research with and treatment of employees, students, supervisees, close friends or relatives.” Id. (emphasis added). The code added, “Sexual intimacies with clients are unethical.” Id. Arguably, this last statement applied to all clients, whether or not they were currently receiving treatment.
Furthermore, the fact that the alleged sexual conduct took place before the amendment of the APA code should not affect our determination that such conduct is a harmful act. We turn to the APA ethical code for guidance, not for definitive pronouncements as to what is or is not a harmful act under our social worker privilege statute. The strong *371language with which the amended APA ethical code denounces sexual contact between a psychologist and a former patient is persuasive authority for the conclusion that such contact is a harmful act, regardless of whether that contact took place before or after the amendment to the APA code.
I also disagree with Justice Henderson’s interpretation of SDCL 36-26-30(2), because it would discourage social workers from coming forward to expose unscrupulous psychotherapists who prey on vulnerable, former patients. At minimum, I believe the exception to the social worker privilege should enable social workers to report to professional associations regarding any psychotherapist who poses a threat of harm to former patients. Justice Henderson concludes that sexual contact between a psychologist and a former patient is not a harmful act and that communications regarding such behavior fall within the protections of the social worker privilege. Under this view, a social worker would violate the privilege statute by reporting a psychotherapist who, during a counseling session, discloses his plans to become sexually involved with former patients; the privilege would attach to these disclosures regardless of how detrimental such intimacy would be to the former patients and to the psychotherapy profession.
Justice Henderson also underscores the South Dakota Code provisions which criminalize sexual contact between psychotherapists and current, but not former, patients. This observation does not decide the issue before us. The exception to the social worker privilege encompasses contemplation of a crime or harmful act. The absence of a criminal statute does not resolve whether sexual contact between a psychotherapist and a former patient constitutes a harmful act.
Finally, the notion that sexual contact with former patients is not a harmful act for purposes of the social worker privilege could lead to arbitrary results. Under the South Dakota statutes criminalizing sexual contact between a psychologist and a current patient, a psychologist’s communications to a social worker indicating an intent to form a sexual relationship with a current patient would be discoverable. See SDCL 36-26-30 and SDCL 22-22-28. In contrast, a psychologist’s communications to a social worker would be privileged if they indicated an intent to form the same sexual relationship with a patient a few days after terminating counseling sessions with the patient.
For the reasons discussed above, I conclude that sexual contact between a psychologist and a former patient constitutes a “harmful act” within the meaning of SDCL 36-26-30(2).2 The next question, then, is the scope of this exception to the social worker privilege. The trial court allowed disclosure of virtually all communications between psychologist Hess and his social worker. I am convinced that this expansive ruling was improper.
The statutory exception at SDCL 36-26-30(2) states:
That a licensed certified social worker, licensed social worker, or licensed social work associate shall not be required to treat as confidential a communication that reveals the contemplation of a crime or a harmful act[.]
There is no South Dakota case law interpreting the proper scope of the exception contained in SDCL 36-26-30(2). Likewise, helpful cases from other jurisdictions are disappointingly sparse, largely due to the individualized nature of privilege statutes in other states. However, there is persuasive authority that indicates the exception to the privilege encompasses only communications regarding future crimes or future harmful acts. New York has a statutory exception to the social worker privilege which is essentially identical to the South Dakota version. This exception provides: “[T]hat a certified social worker shall not be required to treat as confidential a communication by a client which reveals the contemplation of a crime or harmful act.” N.Y.Civ.Prac.L. & R. § 4508(a)(2) (McKinney 1992). According to the practice commentary following this statute, this exception means that “no privilege *372applies to the client’s revelation of a future crime or harmful act.” N.Y.Civ.Prac.L. & R. § 4508(a)(2) commentary at 15 (McKinney 1992) (emphasis added). This limitation on the privilege “parallels the judge-made exception to the attorney-client privilege.” Id.
A similarly narrow, intent-driven interpretation was endorsed in People v. Bass, 140 Misc.2d 57, 529 N.Y.S.2d 961 (N.Y.Sup.Ct.1988). In Bass, the New York Supreme Court noted an absence of any statements to the social worker indicating that defendant would, or feared he would, continue sexual activity with his daughter. Id. 529 N.Y.S.2d at 963. The court therefore held that defendant’s statements to the social worker, limited as they were to admissions that he had engaged in sexual activity with his daughter in the past, did not fall within the statutory exception for communications revealing the contemplation of a crime or harmful act. Id. 529 N.Y.S.2d at 963 (disagreed with on other grounds, People v. Gearhart, 148 Misc.2d 249, 560 N.Y.S.2d 247 (N.Y.Crim.Ct.1990) (statutory requirement that physicians report child abuse suspends application of the physician-patient privilege in all judicial proceedings involving child abuse or neglect)).
In support of the broad discovery ordered by the trial court, Justice Wuest cites several earlier New York cases. However, these cases are clearly distinguishable from the case before this Court. In Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382, 384 (N.Y.App.Div.1978), a divorced mother sought custody of her child, alleging that the custodial father was emotionally unstable. Mother sought disclosure of father’s psychological records held by a counseling center and a certified social worker at the center. Id. Father alleged that the records were privileged. Id. The court noted the doctrine of parens patriae and the judicial trend to carve out a limitation on privilege in cases involving the welfare and best interests of children. Id. 403 N.Y.S.2d at 385. Consequently, in interpreting the “harmful act” exception to the social worker privilege, the court reasoned that “statements made or information given by the [father] to the social worker bearing adversely upon the health, safety and welfare of the infant are not privileged within the contemplation of the statute. and are subject to compulsory disclosure.” Id. 403 N.Y.S.2d at 386 (citing Community Service Society v. Welfare Inspector General of State of New York, 91 Misc.2d 383, 398 N.Y.S.2d 92 (N.Y.Sup.Ct.1977); People v. Brooks, 50 A.D.2d 319, 376 N.Y.S.2d 928, 929 (N.Y.App.Div.1975), reversed on other grounds, 42 N.Y.2d 866, 397 N.Y.S.2d 792, 366 N.E.2d 879 (N.Y.1977)).
The court’s rationale for taking a more expansive view of the “harmful act” exception is inapplicable to this case. Neither the doctrine of parens patriae nor the court’s traditional focus on the best interests of the child can be invoked to justify broad discovery in a case revolving around a psychologist’s relationship with an adult patient.
Although Justice Wuest cites another New York case for the proposition that “statements made to a social worker indicating possible fraud were not privileged,” this summary misconstrues the holding of the case. In New York v. O’Gorman, 91 Misc.2d 539, 398 N.Y.S.2d 336, 338 (N.Y.Sup.Ct.1977), defendants misrepresented their ownership interest in real property in order to receive welfare payments. These misrepresentations were made to certified social workers administering the welfare program. Id. 398 N.Y.S.2d at 337-38. After being charged with grand larceny and deliberate concealment, defendants argued that these fraudulent misrepresentations were privileged under N.Y.Civ.Prac.L. & R. § 4508, the statute establishing a privilege for communications to certified social workers. O’Gorman, 398 N.Y.S.2d at 338. The court rejected defendants’ interpretation, citing the general rule that a “personal confidence can never be used to cover a transaction which is in itself a crime.” Id. 398 N.Y.S.2d at 338 (quoting New York v. Farmer, 194 N.Y. 251, 87 N.E. 457, 464 (N.Y.1909)).
The holding in O’Gorman is irrelevant to the disposition of this case. There is no indication that Hess’s statements to his social worker constituted a crime or an element of a crime. Consequently, the existence or nonexistence of a privilege between Hess and his social worker is unaffected by O’Gorman.
*373South Dakota could adopt a broader interpretation of its statute than the New York authorities have favored. Arguably, the phrase “contemplation of a crime or a harmful act” could extend beyond merely future plans or intentions. For example, one entry in Webster’s Third New International Dictionary, Unabridged 491 (16th ed. 1971) defines contemplation as “an act of the mind in considering with attention: continued attention to a particular subject: MEDITATION, MUSING, STUDY.” This definition supports a broad interpretation of SDCL 36-26-30(2) and would allow discovery of virtually any statement to a social worker concerning a crime or harmful act. In contrast, another entry in the same dictionary defines “contemplation” as “the act of looking forward to an event: the act of intending or considering a future event: EXPECTATION.” Webster’s Third New International Dictionary, Unabridged 491 (16th ed. 1971). This definition coincides with the view that only statements intimating a future intent are admissible under SDCL 36-26-30(2).
In spite of two plausible interpretations, I suggest that the better view is the narrower, intent-driven interpretation. First, as noted in Justice Henderson’s opinion, society’s interests in protecting a patient’s privacy and encouraging uninhibited communication with psychotherapists are compelling. A far-reaching exception to the social worker privilege would severely threaten these interests. Second, if the legislature had intended a broad exception to the social worker privilege, it could have used unambiguous language showing that intent. For example, the Idaho Rules of Evidence carve out an exception to the social worker privilege for communications that reveal “the contemplation or execution of a crime or harmful act.” Idaho R.Evid. § 518 (1994) (emphasis added). Similarly, a former Massachusetts statute allowed discovery of communications that reveal “the contemplation or commission of a crime or a harmful act.” Massachusetts v. Collett, 387 Mass. 424, 439 N.E.2d 1223, 1225 n. 1 (1982) (citing Mass.Gen.Laws ch. 112, § 135(b) (revised 1989)) (emphasis added).3
Because the South Dakota Legislature did not employ such broad language in enacting SDCL 36-26-30(2), the extensive discovery allowed by the trial court, extending to essentially all exchanges between Hess and his social worker, was improper. The trial court should have limited discovery to communications by Hess to his social worker indicating a future intent to initiate or continue sexual relationships with his former or current patients. In this regard, I disagree with both the “all” approach of Justice Wuest and the “nothing” approach of Justice Henderson.
Finally, the dissent raises a procedural issue which should be addressed. The dissent endorses the trial court’s decision to allow broad discovery and then determine at a later date whether the privilege renders some or all of the evidence inadmissible. According to the dissent, the trial court could then enter a protective order sealing the records from unnecessary public disclosure. I assert that this “postponement” approach undermines the privilege to the point of destroying it. Disclosing information to the parties, which is later determined to be privileged, frustrates the purpose of the privilege statute. In future cases, where the judge is uncertain whether any communications fall within the exception at SDCL 36-26-30(2), an “in camera hearing is the proper procedure to allow the judge to determine whether or not the privilege applies to communications made to the social worker.” Collett, 439 N.E.2d at 1230, aff'd, 17 Mass.App.Ct. 913, 455 N.E.2d 1006 (1983), cert. denied, 390 Mass. 1106, 459 N.E.2d 824 (1984). “The judge should phrase his questions to the social worker so as to limit the social worker’s disclosures to information likely to fall within the exception.” Id. at 1232. Third *374persons, such as the parties and their attorneys, “should not be present during this determination because there is a strong likelihood that some of the disclosed information will not come within an exception and will remain privileged.” Id. at 1231-32.
. Hess acknowledges that he began seeing Weis-beck’s wife in March 1989, and that they engaged in sexual intercourse in "late 1989." Statements in a March 1989 letter from Hess to Weisbeck’s wife refer to Weisbeck’s wife "snuggling" in Hess's arms and grabbing the hair on his chest to pull him closer. These statements suggest that Hess and Weisbeck’s wife had a physical relationship as early as March 1989, even if they did not engage in sexual intercourse until late 1989.
. This opinion only decides the issue of whether sexual contact between a psychologist and a former patient constitutes a “harmful act" under SDCL 36-26-30(2). It does not determine whether Hess engaged in any tortious conduct to which civil liability would attach.
. Justice Wuest's dissent cites two Massachusetts cases, Massachusetts v. Berrio, 407 Mass. 37, 551 N.E.2d 496, 499 (1990) and Massachusetts v. Collett, 387 Mass. 424, 439 N.E.2d 1223, 1228 (1982), in support of the trial court's broad discovery order. Both of these cases deal with the interpretation of the pre-1989 Massachusetts statute, which allowed discovery of communications that reveal "contemplation or commission of a crime or harmful act.” Mass.Gen.Laws ch. 112, § 135(b). Because of the different and broader language in the Massachusetts statute, the precedential value of these cases in interpreting the narrower South Dakota statute is questionable.