SAN FRANCISCO (CN) – California has a compelling interest in stopping the proliferation of online pornography depicting child sexual abuse. But psychotherapists are testing the limits of that interest, arguing that a state law requiring them to report patients to the authorities if they divulge that they’ve viewed child pornography wrongly violates the core tenet of confidentiality.
On Wednesday, they asked the California Supreme Court to consider the privacy rights of patients who might be discouraged from seeking treatment to control their pedophilic urges.
“Psychotherapy is the poster child for the right to privacy,” said attorney Mark Hardiman, who represents therapists suing the California Attorney General to protect patient confidentiality.
Therapists and other mental health counselors are already mandated reporters, and under The Child Abuse and Neglect Reporting Act, they must inform on any patient who has committed a crime, like sexually abusing a child, or if they have a reasonable belief that a patient might harm a child.
But in 2014, California lawmakers decided to update the reporting law for the digital age, passing legislation requiring psychotherapists to inform on a patient who has knowingly downloaded, streamed, or accessed child pornography using a computer. Therapists who fail to report could be prosecuted.
Hardiman, who argued on behalf of therapists Don Matthews, Michael Alvarez and counselor William Owen, said the law’s expansion undermines the state’s interest in pedophiles seeking treatment.
“We need to encourage those people to seek assistance from psychotherapy,” he said.
He said the sort of person who views child porn online is “very different” from someone who sexually abuses a child or is in the business of distributing child porn.
Justice Ming Chin asked Hardiman where the court should draw the line.
Since therapists already have a legal duty to report anyone they believe has sexually abused a child or presents a danger to children, Hardiman said “the line should be drawn with the therapist.”
He added, “Therapists are better suited to evaluate their patients.” But what they’re mandated to report, he said, “should be more than just viewing images.”
It’s a timely issue, as a recent New York Times article revealed that tech companies reported 45 million online videos and photos of child sexual abuse last year.
“Child porn is ubiquitous,” Hardiman said. “It’s taking over the internet.”
“What if mass viewing of child pornography drives this product?” Justice Mariano-Florentino Cuéllar asked.
“We’d still be here,” Hardiman said, arguing that the state cannot use “broad brush analysis of future behavior” to justify its overreach.
Trenton Norris, a lawyer representing 14 scholars who submitted amicus briefs in support of the therapists, said viewers of child porn are “a very different subset” from those who sexually abuse children.
“They have very low criminal record and lack the antisocial traits,” he said. “The number of offenders is very small. But what you have is a chilling effect on those who want to change their behavior to seek help.”
Attorney Aimee Feinberg with the attorney general’s office said any privacy interest a patient may have is far outweighed by the state’s interest in protecting children from exploitation.
“Abuse is dramatically underreported,” Feinberg said, on the Legislature’s rationale for updating the law. Reporting requirements, she said, are “sometimes the only way that instances of child abuse can be brought to the attention of authorities.”
Justice Goodwin Liu posed a hypothetical. “Would it matter to you if the evidence showed the statute deterred people from seeking treatment?” he asked, wondering if the law is compounding the very problem it seeks to fix.
What if one out of 1,000 reports of child porn viewing actually led law enforcement to a useful tip? “Doesn’t that short shift the right at stake? There’s a very high cost exacted,” Liu said. “Psychotherapy involves some privacy interest.”
“I don’t think so,” Feinberg said, arguing that patients don’t actually have a reasonable expectation of privacy when they download, stream or access child porn.
“The state’s interest is in protecting children from exploitation,” she said.
But how does the statute help achieve that goal? Justice Carol Corrigan asked. “Are we just supposed to intuit that?”
Feinberg said law enforcement agencies can investigate the patient, confiscate the images if they’ve been downloaded, and “prevent re-victimization.”
She said therapists can warn patients in advance about the reporting law, calling it “a limited intrusion on the patient-psychotherapist relationship.”
“Except my therapist has just ratted me out,” Corrigan said.
Liu mused that often statutes are written to achieve one thing and end up having all sorts of other consequences.
The justices took the arguments under submission.