According to that summary the woman, whose name was suppressed by the tribunal, claimed a free one-hour massage at a clinic in an Auckland shopping mall which included the neck, head, shoulders, back and legs.
No discussion was had about where specifically she wanted Xu to massage before he started other than asking her to remove her clothes, except her underwear, and lie face down on the table
She said she lay face down and a towel was draped over her back but Xu moved it at times to expose her whole back, or her bottom when he moved onto her legs.
She then rolled onto her back with the towel covering her breasts with Xu massaging her neck, then her pectorals and the sides of her chest. He then removed the towel completely and began massaging her breasts with his hands, making contact with her nipples.
The woman found this inappropriate, and felt that Xu had “crossed the line” and made her feel “gross”
Xu denied touching the woman’s nipples but said he did massage her breasts because she hadn’t specifically told him not to and had taken her bra off.
He said that massaging a woman’s breasts had the function of increasing circulation and there were a lot of acupuncture and pressure points to massage in the area.
Xu told the tribunal that as the woman was an adult, if she minded him massaging her breasts she would have told him on the spot, but she did not express any concerns.
After massaging the woman’s chest Xu went away and the woman pulled the towel back over herself as she felt uncomfortable. When Xu came back he folded the towel down, exposing her again and massaged her lower stomach area, her upper abdomen and her legs before wiping the excess oil away with a tissue.
At the end of the massage, Xu left the room and the woman got up, dressed and left. She recalled feeling completely violated as she walked out.
The woman then wrote to the massage parlour expressing her concerns and the owner wrote back confirming that a full body massage did not include the breasts being touched.
Xu then texted the woman saying that clients usually told him which body parts they did not want touched. He stated there had been “no unethical behaviour”.
If a complaint is made to the Health and Disability Commissioner and it’s not referred on to the Director of Proceedings then a complainant can progress an independent case to the Human Rights Review Tribunal and potentially claim damages.
Prior to a hearing of the tribunal commencing Xu and the complainant reached an agreement about the issues in contention, however it still issued a written order by consent of both parties.
Outlined in that decision was expert advice from another qualified masseur who said that Xu failed to obtain informed consent from the woman before starting the massage, had inappropriately draped her with a towel and touched her inappropriately.
That expert, Dr Barry Vautier, said that it was rare for a male massage therapist to touch a female client’s breasts as there was a “high risk” of their actions being misinterpreted.
Vautier noted that massaging of breasts would not normally be carried out with a relaxation massage. Further, the nipples are generally considered an erogenous zone and like the genitals, should not be touched or massaged at all.
He advised that it was a serious breach of privacy and ethical conduct for Xu to leave the aggrieved person’s breasts and stomach exposed without consent.
Overall the tribunal found, and Xu accepted, that he breached the code of ethics governing health practitioners by failing to communicate with the woman, failed to comply with accepted professional standards and did not maintain or respect the woman’s privacy.
Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
