State Must Show Benefits of Disclosing Patients’ Illegal Online Viewing

In reinstating a lawsuit brought by a group of therapists and counselors, the California Supreme Court cleared the way for a show of evidence over which approach best serves the goal of curtailing the demand for online child pornography: The opportunity to effectively treat patients who possess and view such material, or mandatory disclosure to law enforcement authorities when a patient tells a therapist of such behavior.

In their suit against the state Attorney General and the Los Angeles County District Attorney to bar enforcement of a 2014 amendment to the California Penal Code, the therapists claim that patients, including those in treatment for sexual addiction and sexual attraction to children and who admit downloading and viewing Internet child pornography, do not “present a serious danger” to others. Mandatory reporting of these patients under the 2014 law discourages them from disclosing intimate details needed for effective therapy and deters potential patients from seeking treatment at all, according to the legal challenge.

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In backing the change in the law to require therapists to tell authorities when a patient discusses downloading or viewing the illegal digital material, the criminal justice authorities argue that patients have no expectation of privacy in making such admissions and that the purpose of the law is to protect children by drying up the market for images of their sexual abuse.

A trial court and intermediate appellate panel rejected the therapists’ claim at the pleading stage.

By dismissing the case at such an early juncture, the Supreme Court said that it was required to accept the facts pleaded as true and to give the lawsuit’s allegations a reasonable interpretation. Under this standard, the high court held in Mathews v. Becerra that the plaintiff's therapists asserted a cognizable privacy interest under the California Constitution and that their complaint may proceed. The court noted, however, that “in the absence of an evidentiary record, we express no view on the ultimate validity of the 2014 amendment to Section 11165.1(c)(3) or plaintiffs’ likelihood of success.”

“To be clear, the privacy interest we recognize here attaches to a patient’s disclosures during voluntary psychotherapy, not to the patient’s underlying conduct,” the court emphasized. “There is no right to privacy that protects knowing possession or viewing of child pornography online or through any other medium.”

The Supreme Court explained that a plaintiff alleging an invasion of privacy in violation of the state Constitution must establish three things: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.

The court’s majority opinion concluded that the first test is met via the psychotherapist-patient privilege found in California Evidence Code Section 1014. The Court quoted early commentary on the scope and purpose of the privilege: “Psychoanalysis and psychotherapy are dependent on the fullest revelation of the most intimate and embarrassing details of the patient’s life . . . . Unless a patient . . . is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depend[.]”

The court pointed out that the facts pleaded do not trigger an exception to the privilege for those seeking a psychotherapist’s service to aid in the commission of a crime or to escape detection and rejected the defendants’ contention that another exception, for a “dangerous patient,” applies. “The (dangerous patient exception) does not authorize courts to determine what kind of patients are dangerous. By the statute’s plain terms, it is up to ‘the psychotherapist’ to make that determination for each patient.”

The majority opinion then turned to whether the plaintiffs’ patients have a reasonable expectation of privacy in the circumstances alleged. The high court agreed with the lower court that “possession of Internet child pornography does not involve any vital privacy interest.” But in finding a reasonable expectation of privacy, the court noted, “plaintiffs do not contend that possessing or viewing child pornography itself implicates a privacy interest. They contend that privacy interests arise when their patients admit to possessing or viewing child pornography in the context of voluntary psychotherapy to treat sexual disorders.”

Finally, the court addressed the third prong of the test and concluded that the invasion of privacy caused by the reporting requirement is “undoubtedly serious.” “[T]here is no question that revelations made by patients who seek psychotherapy to treat sexual disorders, including sexual attraction to children, concern the most intimate aspects of human thought, however noxious or depraved.”

Looking ahead to the parties’ presentation of evidence on their respective positions, the majority opinion explained: “No one disputes that the principal purpose of the reporting requirement – preventing the sexual exploitation and abuse of children – is a weighty one. The main issue on which the parties disagree is whether the reporting requirement actually serves its intended purpose.”

The Supreme Court said that upon return of the suit to the trial court, the parties may develop evidence on a variety of issues, “including but not limited to the number of reports that psychotherapists have made regarding the possession and viewing of child pornography since the 2014 amendment; whether the reports have facilitated criminal prosecutions, reduced the market for child pornography, aided in 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.”

The high court also anticipated that the parties may 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.”

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.