California High Court Revives Challenge to Mandated Reporting Law

SAN FRANCISCO (CN) – An uncommonly divided California Supreme Court ruled Thursday that psychotherapists can challenge a state law requiring them to report patients who acknowledge during treatment to having viewed child pornography, finding the law provokes a very serious invasion of privacy.

“Plaintiffs’ patients have a legally protected privacy interest in their communications during voluntary psychotherapy,” Justice Goodwin Liu wrote for the majority. “We conclude that the invasion of privacy caused by the reporting requirement is undoubtedly serious.”

Liu was joined by Justices Joshua Groban, Mariano-Florentino Cuéllar and Leondra Kruger.

For decades, the Child Abuse and Neglect Reporting Act (CANRA) has compelled therapists to inform the authorities of any patient who “knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide” depicting child pornography.”

But a 2014 update to the law expanded the definition of sexual exploitation to include anyone who has “accessed” child pornography.

Therapists resisted the amendment, which now requires them to report under threat of prosecution any patient who divulges that they’ve seen child porn.

In a 2015 lawsuit, licensed marriage and family therapists Don Mathews and Michael Alvarez and addiction counselor William Owen claim the amendment violates the privacy rights of patients who do not pose a serious threat of hands-on abuse.

Scholars who joined an amicus brief said the amendment targets those least likely to physically abuse children and that it will also have the counterproductive effect of deterring people from seeking therapy to help them control their sexual proclivities and addictions.

Dismissed by two lower courts, the high court revived the case Thursday, giving the plaintiff therapists and the state attorney general the opportunity to present evidence on whether the amendment serves its intended purpose of protecting children from exploitation or whether it discourages pedophiles from seeking treatment.

“On remand, the parties may develop evidence on a variety of relevant issues, including but not limited to the number of reports that psychotherapists have made regarding the possession or viewing of child pornography since the 2014 amendment; whether the reports have facilitated criminal prosecutions, reduced the market for child pornography, aided the identification or rescue of exploited children, or otherwise prevented harm to children; and whether there are less intrusive means to accomplish the statute’s objectives,” Liu wrote.

“The parties may also introduce evidence on the extent to which the reporting requirement deters psychotherapy patients from seeking treatment for sexual disorders, inhibits candid communication by such patients during treatment, or otherwise compromises the practical accessibility or efficacy of treatment,” he continued.

Attorney General Xavier Becerra’s office said it is reviewing the ruling. Attorneys representing the therapists and scholars were also unavailable to comment on the ruling.

In her dissent, Chief Justice Tani Cantil-Sakauye said a therapy patient’s expectation of privacy has been limited by CANRA’s long-established reporting requirements.

“In my view, the majority fails to supply a convincing explanation concerning how a patient can have a reasonable expectation of privacy in similar disclosed conduct when the consumption of pornography occurs through online channels,” Cantil-Sakauye wrote, noting that for 30 years therapists have been required to report patients who disclose they have duplicated videos or photos of child pornography.

“The Legislature did not expand this rule when it added the terms ‘downloads’ and ‘streams’ to the statute’s definition of ‘sexual exploitation’; it merely clarified that the old rule also applies to newer technologies,” she continued.

Cantil-Sakauye also said that even if the therapists can show that the amendment constitutes an invasion of privacy, the state has a countervailing interest in protecting children from sexual exploitation – which is perpetuated every time child pornography is viewed.

“The Legislature made a technical update to CANRA in order to help identify and rescue these child victims,” she wrote. “In light of the long-standing customs and practices surrounding the mandatory reporting of the consumption of child pornography, and given the formidable rules insulating a statute from a claim of facial constitutionality, plaintiffs have not alleged a constitutional violation of privacy.”

Justices Ming Chin and Carol Corrigan joined Cantil-Sakauye’s dissent.

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