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.

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."