(dissenting).
As noted by the majority, challengers to a ruling on an evidentiary matter must prove that the trial court abused its discretion. Because a judicial mind, in view of the law and the circumstances of this case could reasonably have concluded as did the trial court in this case, I dissent. Additionally, the majority would allow a psychotherapist to discuss his harmful acts against a client with a social worker, and allow those discussions to remain privileged. Therefore, I dissent on that issue also.
FACTS
Plaintiff Weisbeck was married to his wife Cindy in 1974. Starting in November 1986, Cindy started counseling sessions with Hess.1 Weisbeck was also counseled by Hess, although not as frequently as Cindy. The record shows that after June 1987, Cindy continued as a patient of MPCC, but the only counseling sessions for which she was billed were with counselors other than Hess. In September 1987, Hess employed Cindy to do secretarial work for MPCC. Both Weisbeck and Cindy were patients of MPCC until April 1988. In October 1988, Weisbeck discovered the concert tickets and a poem signed, “Love, Jim.” Confronted with these items, Cindy thereupon admitted to her husband (Weis-beck) that Hess had told her he loved her. Cindy terminated her employment with MPCC in October 1988. In March 1989, Weisbeck discovered the lengthy letter from Hess to Cindy, wherein Hess expressed his love for and lifelong commitment to Cindy, stating in part:
I will be by your side and we will get through all of this. I believe with all my heart that we can have a happy life together.... You have so many times said that you have so little to give me and I would have to give so much. All I need from you is for you to love me and show me that you love me and willing to be my partner. There are so many ways you show me even now. Your calls, your coming to school this week, cookies on my car, when you snuggle in my arms ... even when you grab the hair on my chest to pull me closer to you.... I look forward to a lifetime of teaching and learning from each other and sharing all kinds of experiences.... With each other, the best years of our lives are still ahead of us.
As noted by the majority, both Hess and Cindy were married at the time this letter was written, and Hess also admits that he had sexual intercourse with Cindy in 1989, while she was still married to Weisbeck. Cindy was divorced from Weisbeck in 1990; Hess was also divorced (from his third wife) in 1990. Sometime in 1990, Hess began to consult with Tom Terry (Terry), a social worker (not licensed at the time Hess consulted with him), regarding the fact that Hess was involved with a former patient. Hess had approximately eight to ten sessions with Terry.
During the course of discovery in the present action, Weisbeck made two requests for information from Hess: (1) Weisbeck requested client lists, including clients in Hess’ private practice, as well as clients who were students at BHSU; and (2) Weisbeck sought to depose Terry, the social worker with whom Hess met regarding his relationship *375with Cindy. After briefs and a hearing, the court entered an order granting Weisbeck’s motion to compel, with certain stipulations. First, the client lists would be turned over to the court and kept under seal. Second, at the Terry deposition, counsel for Weisbeek could make inquiry “regarding the content of the visits between [Hess and Terry], including but not limited to, the discussions regarding [Cindy].” The court concluded its order stating, “It is further understood that the Court has not determined whether these discussions are admissible in trial. Such determination shall be made at a later date.”2 It was from this order that Hess took an intermediate appeal.
STANDARD OF REVIEW
In regard to the scope of discovery, this court has stated:
The scope of pretrial discovery is, for the most part, broadly construed. Bean v. Best, 76 S.D. 462, 80 N.W.2d 565 (1957). SDCL 15 — 6—26(b) provides, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” A broad construction of the discovery rules is necessary to satisfy the three distinct purposes of discovery: (1) narrow the issues; (2) obtain evidence for use at trial; (3) secure information that may lead to admissible evidence at trial.
Kaarup v. St. Paul Fire and Marine Ins. Co., 436 N.W.2d 17, 19 (S.D.1989) (citing 8 ChaRles A. Wright & Arthur R. Miller, Federal Praotioe and Prooedure § 2001 (1970)). This court has noted that the scope of discovery has “ ‘ultimate and necessary boundaries.’” Kaarup, 436 N.W.2d at 20 (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451, 460 (1947)). However, the United States Supreme Court has stated that, “[e]videntiary privileges in litigation are not favored[.]” Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115, 133 (1979). “Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974). Further, this court has noted that, “It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” Williams v. Carr, 84 S.D. 102, 104, 167 N.W.2d 774, 775 (1969) (noting the similarities between South Dakota and Federal Rules of Civil Procedure, and quoting the forerunner to our present rule SDCL 15 — 6—26(b)).
Evidentiary rulings of the court are reviewed under an abuse of discretion standard. Zens v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co., 479 N.W.2d 155, 159 (S.D.1991) (citations omitted). See State v. Christopherson, 482 N.W.2d 298, 300 (S.D.1992). Similarly, we have held that under the rules of criminal procedure, “the extent of discovery permitted by either side rests in the discretion of the court.” State v. Catch The Bear, 352 N.W.2d 640, 644 (S.D.1984) (citations omitted). As noted by the majority, a trial court’s orders regarding discovery are reviewed by applying the abuse of discretion standard. See Aberle v. Ringhausen, 494 N.W.2d 179, 182-83 (S.D.1992) (applying an abuse of discretion standard to review of trial court’s orders regarding discovery); William Ins. of Pierre v. Bear Butte Farms Ptrshp., 392 N.W.2d 831, 833 (S.D.1986) (holding that it was “within the trial court’s discretion to refuse any additional discovery” and that the court’s refusal to allow additional discovery was not an abuse of discretion). See also Doe v. Puget Sound Blood Center, 117 Wash.2d 772, 819 P.2d 370, 373 (1991) (reviewing a discovery order, and noting that, *376“it is the proper function of the trial court to exercise its discretion in the control of litigation before it.”); Terre Haute Regional Hosp. v. Trueblood, 600 N.E.2d 1358, 1362 (Ind.1992) (stating that “the standard of review in discovery matters is limited to determining whether the trial court abused its discretion.”) (citations omitted). This court has long held that the test utilized in review of matters “involving judicial discretion is ‘whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’” Myron v. Coil, 82 S.D. 180, 185, 143 N.W.2d 738, 740 (1966) (emphasis added) (quoting F.M. Slagle & Co. v. Bushnell, 70 S.D. 250, 254, 16 N.W.2d 914, 916 (1944)). See In re Guardianship of Jacobsen, 482 N.W.2d 634, 636 (S.D.1992); Christopherson, 482 N.W.2d at 300.
ISSUE /: DID THE LOWER COURT ABUSE ITS DISCRETION IN ORDERING HESS TO PRODUCE HIS CLIENT LISTS?
In response to Weisbeck’s request seeking Hess’ client lists, Hess claims that the production of these lists is barred by a statutory psychotherapist-patient privilege. Hess initially cites SDCL 19-13-7, which provides:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.3
Hess claims this statutory privilege based on SDCL 19-13-8, which provides in pertinent part: “The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.”
We have previously recognized the existence of a statutory patient-psychotherapist privilege. In re M.C., 391 N.W.2d 674, 675-76 (S.D.1986) (citing SDCL 19-3-7). Generally, the physician-patient privilege is without a common law basis; rather, it “is created and controlled by statute or court rule.” Wheeldon v. Madison, 374 N.W.2d 367, 376 (S.D.1985) (citing 2 Weinstein’s Evidence § 504[01] at 504-8 (1982)). In Wheeldon, this court noted the rules found in SDCL ch. 19-13 on which Hess relies in this case. The majority opinion fails to cite Wheeldon, wherein we stated: “The intent of this rule is clear. Only ‘confidential communications’ between a physician and his patient are protected under the statute.” 374 N.W.2d at 376 (emphasis added) (citing SDCL 19-13-7; SDCL 19-13-6(4); holding that where a physician was not asked for any information related to treatment of the patient, the testimony was not privileged).
Here, the client lists requested by Weis-beck are not related to treatment of any of the clients. The client names are not “confidential communications” under the rules contained in SDCL eh. 19-13; thus, the information is not privileged and may be discovered. This rule is in accordance with our holding that, “[t]he facts concerning the existence of a lawyer-client relationship are not privileged evidence.” Catch The Bear, 352 N.W.2d at 645 (citing McCormick’s Handbook of the Law of Evidence 185 (2d ed. 1972)). See Rosegay v. Canter, 187 N.J.Super. 652, 455 A.2d 610, 611-12 (1982) (stating that, “[tjhere *377is no rational basis to conclude that the patient-psychologist privilege would be superior [to the attorney-client privilege].”).
Other courts that have directly faced the question of discovery of patient identities would support this rationale. This is borne out in secondary authorities, as well as case law from other jurisdictions. It has been stated that, “A physician is free to testify as to the fact of his employment or being consulted by, attendance on, and treatment of, a certain patient, the fact that the patient was ill, the place and duration of the treatment, the number and dates of his visits, and similar facts.” 97 C.J.S. Witnesses § 295 (1957). Another authority on privileges notes:
A doctor’s conclusions, diagnoses, and treatments are usually covered by the privilege, even though they may not themselves reveal patient communications. The rationale for this result is that patients may avoid therapy or treatment if not guaranteed confidentiality. The privilege does not, however, shield from disclosure the fact that the patient received treatment and the dates of such treatment.
2 Soott N. Stone & Robert K. TayloR, Testimonial Privileges § 7.13 (2d ed. 1993) (emphasis added). See Gechoff v. Our Lady of Victory Hosp., 190 A.D.2d 1060, 593 N.Y.S.2d 682, 683 (N.Y.App.Div.1993) (concluding “that the disclosure of the identity of [a] nonparty witness does not violate the doctor-patient privilege” provided by statute); House v. SwedishAmerican Hosp., 206 Ill.App.3d 437, 151 Ill.Dec. 467, 564 N.E.2d 922, 927 (1990) (“Simply revealing [a] patient’s identity, in and of itself, will not result in the disclosure of confidential communications. It is evident that disclosure of the patient’s name does not violate the physician-patient privilege.”); Jenkins v. Metropolitan Life Ins. Co., 171 Ohio St. 557, 173 N.E.2d 122, 125 (1961) (holding that the patient-physician privilege does not prevent testimony by a physician as to the fact that he was consulted by a patient on a certain date); Wolf v. Colorado, 117 Colo. 279, 187 P.2d 926, 927 (Colo.1947) (holding that in a prosecution against a physician for conspiracy to commit abortion, records showing the names, addresses and telephone numbers of patients did not fall within the patient-physician privilege); Entian v. Provident Mut. Life Ins. Co. of Philadelphia, 155 Misc. 227, 279 N.Y.S. 580, 582 (N.Y.Cty.Ct.1935) (holding that testimony of a physician that a certain individual consulted with him was not privileged).
Similarly, the Sixth Circuit Court of Appeals has considered the nature and scope of a psychotherapist-patient privilege. In re Zuniga, 714 F.2d 632 (6th Cir.1983). Although cited by the majority, this case supports the rule that disclosure of the patient’s identity does not violate confidentiality. The court stated that, “the appropriate scope of a privilege, like the propriety of the privilege itself, is determined by balancing the interests protected by shielding the evidence sought with those [interests] advanced by disclosure.” 714 F.2d at 639-40. After balancing these interests, the court concluded:
The essential element of the psychotherapist-patient privilege is its assurance to the patient that his innermost thoughts may be revealed without fear of disclosure. Mere disclosure of the patient’s identity does not negate this element. Thus, the Court concludes that, as a general rule, the identity of a patient or the fact and time of his treatment does not fall within the scope of the psychotherapist-patient privilege.
Id. at 640 (emphasis added).
Hess places additional reliance for a privilege based on SDCL 36-27A-38, which provides:
The confidential relations and communications between a licensed psychologist and a person consulting him in his professional capacity are confidential. Nothing in this chapter may be construed as to require those privileged communications to be disclosed; nor may a psychologist’s secretary, stenographer or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
Hess argues that the phrase, “confidential relations and communications” provides a heightened privilege for psychologists, placing particular emphasis on the word “relations.” Hess urges that under South Dakota law, the very existence of a relationship be*378tween a psychologist and patient is protected by privilege. Such reasoning is flawed.
A number of other state statutes dealing with a psychotherapist-patient privilege contain the phrase, “confidential relations and communications.”4 No case is located indicating that courts of those states place any different or significant distinction on the word “relations” as opposed to “communications.” For example, the Georgia Court of Appeals made no distinction between “relations” and “communications” in its discussion of the state statute on the patient-psychotherapist privilege. Annandale at Suwanee, Inc. v. Weatherly, 194 Ga.App. 803, 392 S.E.2d 27, 28 (1990). That court allowed discovery of those parts of a psychotherapist’s records which were not deemed to be “communications.” Id. That same court had also specifically addressed the issue of discovery of patient identities. National Stop Smoking Clinic—Atlanta, Inc. v. Dean, 190 Ga.App. 289, 378 S.E.2d 901 (Ga.App.1989). In this medical malpractice and fraud action, the plaintiffs sought discovery of the names and addresses of all persons who had received treatment at the clinic. 378 S.E.2d at 901. The lower court entered an order compelling the defendant clinic to produce this information, and the clinic brought an interlocutory appeal. Id. The court of appeals stated that, “even in circumstances where communications are privileged, such as within the psychiatrist-patient relationship ... evidence showing the fact of employment of or treatment by a psychiatrist is not privileged.” Id. at 902 (citing Cranford v. Cranford, 120 Ga.App. 470, 170 S.E.2d 844, 846 (1969); Ga.Code Ann. § 24-9-21(5)).5 The court concluded, “that the privilege accorded psychiatrists and psychologists ... does not extend to their patients’ identities.” Id. Similarly the New Hampshire Supreme Court has held that under its patient-psychotherapist privilege statute, “only confidential relations and communications between a patient and a [psychiatrist or psychotherapist] which are customary and necessary for diagnosis and treatment, are privileged. Thus, observations ... when not made for the purpose of diagnosis and treatment, are not privileged.” In re Kathleen M., 126 N.H. 379, 493 A.2d 472, 477 (1985).
Several cases relied upon by Hess are distinguishable from the case at bar. In a Texas case, two women sued a male psychologist who had sexual intercourse with them during psychotherapy sessions at the office. Ex parte Abell, 613 S.W.2d 255, 256 (Tex.1981). One of the plaintiffs’ interrogatories to Abell requested the identities of any current or former patients that the psychologist has “kissed, touched, hugged, fondled or had any sexual contact of any type, including sexual intercourse[.]” 613 S.W.2d at 256. The trial court ordered that the information be supplied in a sealed envelope to the court and to the plaintiffs’ attorneys. Id at 257. Abell refused to comply and was held in contempt. Id. While the psychologist’s appeal was pending, the Texas Legislature passed a statute providing for the confidentiality of a patient’s “identity, diagnosis, evaluation or treatment.” Id. at 258 n. 3 (quoting Tex.Rev.Civ.Stat.Ann. art. 5561h § 2(b) (1979) (emphasis added)). The Texas Supreme Court held that the statute could be applied retroactively, and “that the statute forbids disclosure of the identity of former patients/clients of Abell.” Id. at 262-63. Because South Dakota has no similar statute specifically prohibiting disclosure of a patient’s identity as well as communications, the Abell case fails to support Hess’ position.
*379Hess relies on two cases from California in support of his position. The first is Smith v. Superior Court, 118 Cal.App.3d 136, 173 Cal.Rptr. 145 (1981). In Smith, the psychologist was the husband in a divorce action. 173 Cal.Rptr. at 146. The wife sought discovery of the husband/psychologist’s client lists for the purpose of determining the husband’s income over a seventeen-month period. Id. In refusing to order disclosure of the psychologist’s client lists, the court specifically pointed out other means available to discover the husband’s income — such as examining the “receptionist or professional associates regarding the number of patients [husband] ordinarily counsels and his customary fees and gross receipts ... [and showing] inconsistencies between [husband’s] representations regarding his income and past living expenses.” Id. at 148. Thus, the facts of Smith are not in any way analogous to those presented here.
In a later California case relied upon by Hess, the court noted that, “[i]t is well-settled in California that the mere disclosure of the patient’s identity violates the psychotherapist-patient privilege.” Scull v. Superior Court, 206 Cal.App.3d 784, 254 Cal.Rptr. 24, 26 (1988) (citations omitted). In support of this rule, the court noted the independent “inalienable right to privacy” provided in the state constitution. 254 Cal.Rptr. at 27 (citing Calif. Const, art. I § 1). We note that the South Dakota constitution contains no similar provision. The Scull court went on to state:
However, the patient-psychotherapist privilege is not absolute. The state has a significant interest in facilitating ‘... the ascertainment of truth and the just resolution of legal claims.’ Indeed, ‘[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.’
When the right to disclosure clashes with a privilege, the court is required to ‘indulge in a careful balancing’ of the need for disclosure against the fundamental right of privacy. The scope of the privilege is determined by balancing the interests protected by shielding the evidence sought with those advanced by disclosure. When the balance swings in favor of disclosure, the court is required to limit the scope of discoyery ‘to the extent necessary for a fair resolution of the lawsuit.’
Scull, 254 Cal.Rptr. at 27 (citations omitted). Under the facts of Scull, the court decided that the patient identities need not be disclosed, noting particularly that the seventy-one-year-old retired psychologist who had been charged with four criminal counts of sexual molestation of a teenaged patient was no longer a threat to the public. Id. at 25-27. Although the majority cites Scull in support of its position, the materially different facts of the case at bar readily reveal that the Scull ease is insufficient authority.
A review of the law indicates that the trial court did not abuse its discretion in ordering the patient lists to be produced to the court. This court should not now rule that a judicial mind, in view of the law and the circumstances of this ease, could not have reached this conclusion. Myron, 82 S.D. at 185, 143 N.W.2d at 740 (citations omitted). As noted in its order, the trial court could make and carefully enforce provisions to protect the privacy of nonparty patients. See Blue Cross and Blue Shield of Minnesota v. Larson, 472 N.W.2d 885, 886 (Minn.App.1991) (noting that the trial court drafted a protective order restricting access to patient identity information).
ISSUE II: DID THE TRIAL COURT ABUSE ITS DISCRETION IN ORDERING THAT SOCIAL WORKER TERRY BE DEPOSED?
During his deposition, Hess was asked whether he had ever consulted with anyone regarding whether it was proper behavior to date a woman that was a former patient. Hess responded that he had consulted with Terry, a social worker, on eight to ten occasions. Weisbeck sought to depose Terry, specifically to discover statements made to Terry about the ethics and propriety of dating patients and former patients. Hess claims that all content of his visits with Terry are privileged, citing SDCL 36-26-30 which provides in pertinent part:
No licensed certified social worker, social worker, or social work associate or his *380employee 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: ... (2) That a licensed certified social worker, licensed social woi’ker, 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 [.]
(Emphasis added). Weisbeck urges that the content of Hess’ visits with Terry are not privileged, because those communications would reveal Hess’ contemplation of a “harmful act” — specifically, Hess’ romantic involvement with Cindy, a former patient.6 Hess argues that no harmful act ever took place.7 Specifically, Hess states that, “no evidence exists that [Hess] is now dating patients or has in the past. [Hess] has testified he has never dated a patient. Further, the only former patient he has ever dated is [Cindy] and this relationship did not start until 20 months after his counseling of her terminated.”
The majority fails to note that Hess’ contentions regarding his relationships with Cindy and other patients conflict with other evidence in the record. Both Cindy and Weisbeck were patients of MPCC until April 1988. Although Cindy had not been billed for counseling sessions with Hess since June 1987, Hess continued to receive forty percent of all gross revenues from both Cindy and Weisbeck’s counseling sessions, as sole owner of MPCC. Weisbeck observed signs of romantic involvement between Cindy and Hess during 1988, and found the concert tickets and poem in October 1988. The March 1989 letter from Hess also indicates prior romantic involvement, and indicates Hess’ desire at that point to make a lifelong commitment to *381Cindy. The text of the March 1989 letter indicates that at the same time he was romantically involved with Cindy, Hess still related to her in a counseling role:
If you take charge of your life now and do what you need to do to find happiness, then you will have so much more to offer the kids, yourself and all those around you.... You have a chance now to start a new life and put the hurt and pain and dissapointments [sic] behind you. I know it won’t be easy, but in time the old hurts will fade and they will be replaced with new feelings of happiness you’ve always wanted and believed you could never have. This new beginning for you will give you the ability to be happy.... Together we will deal with your depressions — including teaching the kids about what happens to you. Together we will show the kids what a healthy relationship can be like. Together we will finally find the happiness both of us have wanted so long.
These statements indicate that although formal counseling sessions had ceased, Hess still saiv himself in the role of therapist for both Cindy and her children. Courts unanimously agree that a therapist’s romantic and sexual involvement with a patient is a “harmful act.” See, e.g., Simmons v. United States, 805 F.2d 1363 (9th Cir.1986) and cases cited therein.
The courts of other jurisdictions have applied statutes regarding social worker privilege. The Massachusetts Supreme Court found statements made to a social worker by a defendant regarding incestuous acts not privileged as communications revealing a crime or harmful act. Massachusetts v. Berrio, 407 Mass. 37, 551 N.E.2d 496, 499 (Mass.1990). See Massachusetts v. Collett, 439 N.E.2d 1223, 1228, 387 Mass. 424 (Mass.1982) (holding that statements by a boyfriend to a social worker that he hit an abused mother as well as her child were not privileged). A New York court has applied the “crime or harmful act” exception to hold that statements made to a social worker indicating possible fraud were not privileged. New York v. O’Gorman, 91 Misc.2d 539, 398 N.Y.S.2d 336, 338 (N.Y.Sup.Ct.1977). See Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382, 386 (N.Y.Sup.Ct.1978) (holding that statements made to a social worker that may have bearing on a child’s health, safety and welfare are not privileged, and are subject to compulsory disclosure under the “harmful acts” exception to social worker privilege).
Following a review of the applicable law, and under the facts and circumstances of this case, I cannot find that the trial court abused its discretion in ordering that social worker Terry be deposed in this matter. This court could exclude from the scope of the deposition any examination regarding Hess’ relations with patients other than Cindy. As noted in the trial court’s order, Terry’s deposition would be reviewed to determine what parts, if any, are admissible evidence. This procedure is in accordance with a case from Montana. State ex rel. Mapes v. District Court, 250 Mont. 524, 822 P.2d 91, 95 (1991). In its writing, the Montana Supreme Court crafted an order allowing a party to depose a psychologist; the trial court would then make a determination of what parts, if any of the deposition testimony would be admissible evidence. The trial court could then enter a protective order sealing the psychologist’s records from unnecessary public disclosure. Id. The trial court could take similar precautions in this matter.
. Attached to Hess' deposition are MPCC billing records for counseling sessions for Weisbeck and Cindy. These records show that Weisbeck was present for at least 10 counseling sessions, either alone or with Cindy. Hess maintains that Weis-beck was not a patient of the clinic; that only Cindy was a patient, and that Weisbeck was only seen in conjunction with Cindy's counseling. Clearly, Hess’ contention that Weisbeck was not a patient of Hess or MPCC is flawed. Weisbeck was billed for all sessions, and by Hess’ own admission, Weisbeck was never told that he was not a patient.
. At the hearing on the motion to compel, the court stated:
We don't know yet if the privilege applies here with Terry's status. We don't know yet the nature and purpose of all this, and the only way you will find out is through discovery. This may be a privileged communication. It may turn out to be that way, and it will stay privileged. It will be sealed.... If there is no privilege there, then it is down to a matter of deciding what portions of it become admissible, relevant, all those sorts of things. That is all I am trying to structure here.... I don’t have enough stuff to know if privilege applies or not[J
. A related statute defines a number of the terms found in SDCL 19-13-7. SDCL 19-13-6 provides:
As used in this §§ 19-13-6 to 19-13-11, inclusive:
(1) A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist.... (3) A "psychotherapist" is ... (b) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged. (4) A communication is "confidential” if not intended to be disclosed to third persons, except persons present to further the interest of patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.
. Ala Code § 34-26-2 (1991); Ariz.Rev.Stat.Ann § 32-2085 (1992); Ark.Code Ann. § 17-96-105 (Michie 1992); Cal.Bus. & Prof.Code § 2918 (West 1990); Ga.Code Ann § 43-39-16 (1990); Idaho Code § 54-2314 (1988); KanStat.Ann § 74-5323 (1992); Mont.Code Ann. § 26-1-807 (1993); N.H.Rev.Stat.Ann. § 330-A:19 (Supp.1993); NJ.Rev Stat.Ann. § 45-14B-28 (West Supp. 1993); N.Y.CivPracX. & R. § 4507 (West 1992); 42 Pa.Cons.Stat.Ann § 5944 (West Supp.1993); TennCode Ann. § 63-11-213 (1990).
. GaCode Ann. § 24-9-21(5) provides: "There are certain admissions and communications excluded on grounds of public policy. Among these are: (5) Communications between psychiatrist and patient.” An additional statute in effect at the time National Stop Smoking was decided, although not cited in the opinion, was Ga.Code Ann. § 43-39-16, which provides in pertinent part: "The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client[.]”
. Weisbeck submits documentation to support his contention that a therapist's dating a current or former patient is a harmful act, specifically noting a psychologist’s mishandling of what is known as the "transference phenomenon.” See, e.g., Simmons v. United States, 805 F.2d 1363, 1364-66 (9th Cir.1986). The Ninth Circuit noted that, "Transference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is 'generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient’s past.’ ” Simmons, 805 F.2d at 1364 (quoting Stedman’s Medical Dictionary 1473 (5th Lawyers’ Ed.1982)). "When the therapist mishandles transference and becomes sexually involved with a patient, medical authorities are nearly unanimous in considering such conduct to be malpractice." 805 F.2d at 1365 (citations omitted). The court of appeals noted with approval the findings of the district court in Simmons:
The impacts of sexual involvement with one’s counselor are more severe than the impacts of merely 'having an affair’ for two major reasons: first, because the client’s attraction is based on transference, the sexual contact is ordinarily akin to engaging in sexual activity with a parent, and carries with it the feelings of shame, guilt and anxiety experienced by incest victims. Second, the client is usually suffering from all or some of the psychological problems that brought him or her into therapy to begin with. As a result, the client is especially vulnerable to the added stress created by the feelings of shame, guilt and anxiety produced by the incestuous nature of the relationship, and by the sense of betrayal that is felt when the client eventually learns that she is not 'special as she had been led to believe, and that her trust has been violated.
Id. at 1367.
. The 1993 legislature passed a statute that, although clearly not imposing retroactive criminal liability, does speak to the public policy of this state regarding whether such acts are "harmful acts.” SDCL 22-22-28 provides:
A psychotherapist who knowingly engages in sexual contact, as defined in § 22-22-7.1, with a person who is not his spouse and who is his emotionally dependent patient at the time of contact, commits a Class 5 felony. Consent by the patient is not a defense.
SDCL 22-22-29 provides:
A psychotherapist who knowingly engages in an act of sexual penetration, as defined in § 22-22-2, with a person who is not his spouse and who is his emotionally dependent patient at the time that the act of sexual penetration is committed, commits a Class 4 felony. Consent by the patient is not a defense.
SDCL 22-22-27 provides in pertinent part:
Terms used in §§ 22-22-28 and 22-22-29 mean: ... (3) "Patient," a person who seeks or obtains psychotherapeutic services from a psychotherapist on a regular and ongoing basis; and (4) "Emotionally dependent,” a condition of the patient brought about by the nature of the patient's own emotional condition or the nature of the treatment provided by the psychotherapist which is characterized by significant impairment of the patient's ability to withhold consent to sexual acts or contact with the psychotherapist and which the psychotherapist knows or has reason to know exists.