Privacy

Requiring Psychotherapists to Report Patients' Child Porn Use May Violate Constitutional Right to Privacy

So concludes the California Supreme Court (by a 4-3 vote), applying the California Constitution; it remands for further fact-finding on the law's practical costs and benefits.

|The Volokh Conspiracy |

Since 1972, the California Constitution has expressly protected privacy, providing that,

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

The California Supreme Court has implemented this provision using the Hill v. NCAA test:

[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy…. A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests. The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.

How does this affect limits on psychotherapist-patient confidentiality, and in particular rules requiring psychotherapists to alert law enforcement when a patient has admitted to viewing child pornography? In today's 4-3 decision in Mathews v. Becerra, the court held that such reporting requirements may be unconstitutional, though depending on the facts, which need to be developed in further court proceedings. The majority (Justice Goodwin Liu, joined by Justices Mariano-Florentino Cuellar, Leondra Kruger, and Joshua Groban) relied heavily on the view that California is part of only a small minority of states that require such reporting, so that it "appears that '[nationwide] law and social custom' have not required child welfare reporting or authorized other disclosure of a patient's admission during voluntary psychotherapy treatment that the patient has possessed or viewed child pornography." And it went on to explain what facts would bear on any ultimate decision about whether the statute passes muster:

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.

Defendants argue that mandatory reporting advances the state's interest in protecting children by facilitating enforcement of the child pornography laws. As defendants note, the purpose of these laws is to protect children by drying up the market for images of their sexual abuse. And according to the Attorney General, mandatory reporting also helps to "ensur[e] that those with direct access to children do not threaten them with harm" and aids efforts to "rescu[e] children from sexual abuse."

Plaintiffs, by contrast, contend that there is only a "slim possibilit[y]" that the reporting requirement can assist law enforcement in identifying and rescuing children depicted in child pornography. They assert that patients who have downloaded or viewed child pornography online are "highly unlikely" to have any information about the identities, locations, or other relevant characteristics of the depicted children. Plaintiffs also allege that because child pornography is so freely and easily accessible on the Internet, patients who admit to viewing child pornography online span a wide range of psychological profiles and disorders, and do not present a serious danger of hands-on abuse. Mandatory reporting of patients who do not pose a serious danger of hands-on abuse, plaintiffs allege, would not serve any interest in preventing those patients from causing direct harm to children.

Moreover, plaintiffs' complaint alleges that the reporting requirement "deter[s] existing or potential patients who have serious sexual disorders … from obtaining needed psychotherapy, despite the lack of any evidence that they have engaged in 'hands-on' or 'contact' sexual abuse of children." The complaint specifically alleges that "mandated reporting of child pornography viewing will unnecessarily deter persons with sexual disorders from psychotherapy treatment," which suggests the contribution of those persons to the market for child pornography will continue unabated.

With no facts developed at this stage of the litigation, we are unable to evaluate these competing claims as to whether the reporting requirement serves its intended purpose. Our precedent includes varied assertions on whether mandatory reporting deters psychotherapy patients from seeking treatment. (Compare Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12 [dismissing as "entirely speculative" the concern that reporting of dangerous patients will discourage them from seeking counseling] with Stritzinger, supra, 34 Cal.3d at p. 514 ["it is impossible to conceive of any meaningful therapy" if the patient knows "at the outset that [the therapist] will violate his confidence and will inform law enforcement of their discussions"] and Lifschutz, supra, 2 Cal.3d at p. 431 ["'"It would be too much to expect [patients] to [reveal intimate thoughts and behaviors during treatment] if they knew that all they say … may be revealed to the whole world from a witness stand."'"].) The dissent relies on cases that cite decades-old studies and involve reporting requirements not at issue here. (Dis. opn., post, at pp. 24–25, citing Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 632 [discussing 2000 article on deterrence effects of reporting potentially violent patients], People v. Wharton (1991) 53 Cal.3d 522, 558 [discussing deterrence effects of reporting patients whom psychotherapists believe to be dangerous], Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12 [discussing 1974 article that found "little if any empirical data" on deterrence effects of reporting potentially violent patients], and Lifschutz, at pp. 426–427 [discussing deterrence effects in context of "compel[ling] disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation"].) No court has yet explored the ramifications of the reporting requirement challenged in this case.

At its core, plaintiffs' argument is that the reporting requirement does not further, and may in fact undermine, its intended purpose of protecting children from sexual abuse and exploitation. If substantiated, this mismatch between means and ends would render the reporting requirement unconstitutional under any standard. We thus have no need, in advance of factual development on this critical issue, to decide whether the reporting requirement must satisfy the compelling interest test or a general balancing test.

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. 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.

The dissent (Chief Justice Tani Cantil-Sakauye, joined by Justices Ming Chin and Carol Corrigan) disagreed on various grounds, but in particular had this to say about the likely efficacy of the law:

Based on the demonstrated countervailing state interest in protecting children from the harm caused by sexual exploitation over the Internet and plaintiffs' speculative contentions regarding whether the 2014 amendment furthers that interest, it is apparent that the state interest will almost certainly outweigh the alleged privacy invasion….

[T]his court has already laid bare plaintiffs' conjecture that mandatory reporting of psychotherapist-patient communications will deter patients from seeking therapy. Most recently in Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 632, we explained: "To a large extent, … the conditions that might influence [patient] perceptions about confidentiality already exist. Psychotherapists' duty to warn about patient threats is well established in California. Indeed, despite fears that this duty would deter people from seeking treatment and irreparably damage the psychotherapist-patient relationship [citation], empirical studies have produced 'no evidence thus far that patients have been discouraged from coming to therapy, or discouraged from speaking freely once there, for fear that their confidentiality will be breached.'" (Ibid.; see also People v. Wharton (1991) 53 Cal.3d 522, 558.) Similarly, in In re Lifschutz (1970) 2 Cal.3d 415 (Lifschutz), we rejected the petitioner's claim that if the state could compel disclosure of some psychotherapeutic communications, psychotherapy could no longer be practiced successfully. We observed "that the practice of psychotherapy has grown, indeed flourished, in an environment of non-absolute privilege," and "psychotherapists certainly have been aware of the limitations of their recognized privilege for some time." (Id. at p. 426.) In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, we observed that "it does not appear that our decision [in Lifschutz] in fact adversely affected the practice of psychotherapy in California. Counsels' forecast of harm in the present case strikes us as equally dubious." (Tarasoff, at p. 440, fn. 12.) …

Furthermore, even though the task of identifying sexually exploited children online is challenging, it does not mean that Assembly Bill 1775 fails to advance its purpose, as plaintiffs assert. In examining a similar federal statute, the Office of Legal Counsel determined that "[p]ornography may well involve 'a' specific, potentially identifiable child even if neither covered professionals nor their patients know the child's identity. Even if covered professionals (or their patients) do not know the identity of any children depicted in pornography viewed by a patient, a report may lead authorities to specific, identifiable children. While some child pornography may be the work of professionals and therefore difficult to link to specific identifiable children, other such images are homemade recordings, taken in domestic contexts, of sexually abusive acts 'committed against young neighbors or family members' and therefore traceable through law enforcement investigation to a particular child or children." Indeed, we have recognized that "[o]ftentimes, reporting by third parties [under CANRA] is the only way the proper authorities become aware of an incident of child abuse." Therefore, plaintiffs' claim—that the reporting statute does not actually serve its intended purpose because identifying children online is difficult—is unconvincing.

In addition, by asserting that, on the record before us, we cannot "evaluate … whether the reporting requirement serves its intended purpose," the majority completely ignores the direct (albeit "hands-off") harm caused by the viewing of child pornography over the Internet. Child pornography is not limited to hands-on abuse. "'[T]he "victimization" of the children … does not end when the pornographer's camera is put away. The consumer, or end recipient, of pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways. [¶] First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials…. The consumer who "merely" or "passively" receives or possesses child pornography directly contributes to this continuing victimization. [¶] Second, … [t]he recipient of child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly victimizing these children. [¶] Third, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials …. The underlying point … is that there is no sense in distinguishing … between the producers and the consumers of child pornography. Neither could exist without the other.'"

As the Attorney General argues, the 2014 amendment to CANRA "reflects the accepted position that 'every viewing of child pornography is a repetition of the victim's abuse.' [Citation.] Mandated reporting of such behavior helps authorities locate and confiscate these images and stop instances of this harmful conduct." Consequently, even were it true, as plaintiffs assert, that the new reporting requirement will not reduce hands-on abuse or facilitate the rescue of exploited children, "the State's interest in protecting against the harms visited upon children when sexual images of them are downloaded, accessed, or streamed is alone sufficient to outweigh any asserted privacy interest." As the District Attorney similarly asserts, "Obviously, the reduction of persons who duplicate, print, exchange, download, access or stream child pornography, will reduce the ongoing sexual exploitation of children." That should be enough to establish that the amendment furthers the state's compelling interest in protecting children and reducing abuse. The majority's contrary view depends, not on allegations in the complaint, but on the majority's speculation that "the contribution … to the market for child pornography" of persons allegedly deterred by the reporting requirement from seeking treatment for their sexual disorders "will continue unabated."

 

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  1. Terrible move. Obviously it would be safer to drive them further underground and not get any counseling. C’mon Csc don’t you know looking good instead of doing good is the California Way?

    1. The dissent claims that many other accepted mandatory reporting categories have not measurably driven patients underground. So yeah, there’s a valid empirical question about how much underground-driving is likely to result.

      1. “The dissent claims that many other accepted mandatory reporting categories have not measurably driven patients underground.”

        Not quite.

        Here is what they said: “empirical studies have produced ‘no evidence thus far that patients have been discouraged from coming to therapy”

        No evidence that patients have been discouraged is not evidence that patients haven’t been discouraged.

        I wonder how those studies were done. A study of psychotherapy patients would necessarily exclude patients discouraged by mandatory reporting requirements.

        1. Maybe compare to states and localities that dont have the reporting requirements and see if the rate of therapist retention is any different. (this would require having some gauge of the numbers for the relevant subset of the population, i.e.: pedophiles)

          1. “Maybe compare to states and localities that dont have the reporting requirements and see if the rate of therapist retention is any different.”

            What about people who don’t seek help in the first place due to the reporting requirements?

        2. Even if they did look for evidence I don’t know how they could find it. Nor should they need to.

          There is simply no chain of logic that I can conceive where you set up a law that says “say this set of things to your psychotherapist and you will be indicted, prosecuted, probably imprisoned, probably fined, and you will be on a sex offenders list for life and you really just might as well cut your own throat” and that could NOT be considered discouragement from attending psychotherapy.

          Sure you could find an individual that could serve as a counter-example. Just like you can find an idiot that will eat a Tide-pod. But who in hell considers that a normal example.

  2. Interesting, I’m not sure what I think at this point, beyond agreeing that the plaintiff meets the prima facie elements of stating an invasion of privacy claim under as articulated in Hill. I wonder how much the countervailing interest has to match with the privacy interest or the statutory scheme. If it doesn’t have to match, I would think that “to hell with people who view child pornography, interference with therapy be damned” is an important/compelling government interest. If it has to match the statutory interest of preventing ongoing child abuse, then there is perhaps a problem.

    I would also note, that for the plaintiffs to win, the old statute would have to be invalid as well. The previous statute also required reporting of various forms of child pornography access.

  3. Im loathe to support any decision that could be seen as supporting these creeps (even though this is just the pleadings stage) but I am glad the majority is wielding rational basis in a way that doesnt just buy into govt conjecture.

    The majority asserts that mandatory reporting requirements dont deter therapy, but these studies dont appear to be specific to the child porn reporting requirement. It is entirely possible that kiddie porn afficianados are more bashful than violent therapy patients. It at least deserves investigation.

    The govt shouldnt be able to just proffer evidence from a broad array of policy fields that arent related to its asserted objectives. The govt shoudnt be able to ban access to violent video games (assume 1A didnt bar this) on the theory that they promote violence, by marshaling evidence for the proposition that porn causes violence.
    The majority shouldve mentioned the govt argument that mandatory reporting facilitates identification, however

    1. It seems to me that there’s also a difference in kind between the guy who says “I’m going or burn down the black church at 123 Main Street this Sunday with everyone inside” and “I was looking at Traci Lords videos and realized I was watching the original German ones” or even “I was watching Amai Liu videos and after clicking on the next one realized it wasn’t her, it was just some girl who looked as young as her.”

      One is describing a future event that is nearly impossible to enact without violating the law (maybe he owns the building, and “everyone” is an empty set), while the others are past events that are entirely protected acts except for the rare exceptions (Asian porn and vintage porn, respectively).

      To turn this around, walk up to a cop and tell him “I’m going to burn that church down right now” while carrying gas cans and he’ll arrest you – even if he ultimately learns you own the building and have the permit. Tell the cop the analogous statement “I’m going to watch young Asian porn” or “I’m going to watch vintage porn” and he’ll merely tell you to go do it in private.

      From yet another angle: the person coming to get help is precisely not the person you want to stop – it’s the guy you don’t know about. It’s the same level of idiocy as prohibiting naloxone – if someone thinks it’s a good idea to have it, they’re probably right.

      Warning NSFW: Amai Liu is 18 or older in all of her works, but she still looks like she’s 12 (my wife and I contacted the National Center for Missing and Exploited Children and were told they get that call a lot). Traci Lords famously filmed her first pornographic movie in Germany when she was 16, where the age of consent for such was 16. Perfectly legal there, illegal here.

      1. Traci Lords didn’t start her porn career in Germany; she passed a fake ID and began working for an American porn agency when she was 15 and modeled in Penthouse when she was 16. And before that, she was molested and had an abortion.

  4. Why do courts keep insisting that child sexual abuse is a market, such that if there were no consumers of the recordings of it there would be no more abuse (or at least, less abuse) either?

    In the rare instances of selling recordings that makes sense, but almost every prosecution I’ve ever seen is for mere possession, never for the sale of such content. And I don’t think I’ve even ever seen it alleged that the possessor purchased it, merely that he downloaded it.

    Maybe that was different in the past – if the only way to get it was to have someone make copies of photographs in a lab and mail them to you, then in practice they’d want to at least be compensated for their time and materials. But in the age of the internet is that still a thing? Is childporn.silkroad.onion a thing (or something like that)?

    If the real harm is the perpetration against the child, and the consumers of recordings don’t actually encourage the creation of the material, the; now is that a compelling state interest? I understand the argument that the victim is harmed each time they learn of another person having viewed their pictures, but even then it’s the state causing the harm – they could just keep their trap shut and by their own theory the child won’t be harmed any more.

    This whole topic is so icky that it seems it doesn’t actually get the intensity of thought that other governmental actions get, let alone what most think they should get. So is this the chink in our liberty armor that will corrode the rest of our rights, because we refuse to look at it?

    1. There is actually a black market in child porn, people pay for the creation of new material. That said, your average lurker is downloading material either produced overseas or (more typically) that is old, going back to the 1970s before the moral panic on this issue. Much is also produced free of charge, Youtube style. (Source: a friend who served time in federal prison for possession)

  5. It’s worse than just cops. The right to privacy does not survive death in most places. Therefore, mental patients don’t want to discuss things that might cause their family pain if later exposed.

    I don’t see how anyone can claim to have a study that provides evidence of stuff that people bottle up and never reveal to another living soul. It is an oxymoron to suggest that such evidence exists.

    Anonymity is a big problem on the Internet. Many people from many angles are working to combat it. But we’ll never know how much suffering and how many crimes could have been prevented if only we provided an impenetrable wall of anonymity for people seeking psychotherapy, because the smart ones among them will never open up to anyone if confidentiality can be penetrated.

  6. In the dissent, the [¶] First, [¶] Second, [¶] Third paragraphs, with the change of a few words, would make all medical or recreational users of illegal drugs eligible to be punished as drug producers, importers and dealers. Do we really want to set or continue the precedent of having this kind of law on the books?

    1. The child porn laws are scary. They are draconian and harsh as all get out. They ignore of age of consent, and there is no Romeo and Juliet clause. Any allowance that a rational person would think should be there, isn’t.

      As far as the child porn laws are concerned, a 17 year old girl who sends a topless photo to her boyfriend is legally identical to a 30 year old man who films himself abusing a 12 year old.

      The boyfriend, by receiving that fully willing picture of a girl with whom he can do whatever they agree to, is now a criminal with a five year minimum sentence unless he turns the picture over to police in a very narrow window. However, by doing this, he would be calling for his girlfriend to be arrested for producing child pornography. Even immediately deleting it is not a defense.

      These laws need to be modified to fix these clear problems. However, no one wants to be the politician who is weakening child pornography laws.

  7. My disagreement with the California Supreme Court is that I think this legislation passes rationale basis. However, it might well not pass strict (or other higher-level) scrutiny. And given the language of the state constitutional provision, strict (or other higher-level) scrutiny might well apply.

    So I think they could, if they wanted to, decide which standard applies. They could develop the factual record only if they determined The privacy provision covers this matter and higher-level scrutiny applies.

    However, it’s not necessarily an unreasonable procedure to decline to decide the issues piecemeal, develop the factual record first in the trial court, and then have the appellate courts decide things with everything in hand.

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