California’s statutory requirement that a healthcare provider report to law enforcement or child welfare agencies when patients disclose that they have viewed child pornography online is constitutional, the Court of Appeal has ruled.
The ruling thwarts a challenge by a certified alcohol and drug counselor and two licensed marriage and family therapists who claimed that a 2014 revision to the state’s Child Abuse and Neglect Reporting Act (CANRA) violates their patients’ constitutional right to privacy.
In their attempt to bar enforcement of California Penal Code Section, 11164 et seq., the therapists claimed that their patients, including those in treatment for sexual addiction and sexual attraction to children and those who admit downloading and viewing child pornography, do not “present a serious danger” to others and that mandatory reporting will interfere with needed treatment.
“These patients typically have no prior criminal record or history of ‘hands-on’ sexual abuse of children, no access to children in their home or employment . . . and often express disgust or shame about their sexual attraction to children for which they are actively and voluntarily seeking psychotherapy treatment.”
The therapists argued that the 2014 amendment to CANRA adding a healthcare provider's knowledge of an individual’s accessing child pornography through digital media to the statute’s reporting requirements does not substantially further state goals because a patient’s viewing of child pornography is not evidence that the patient has engaged in “hands-on” abuse or exploitation. Unless stricken, they argued, the new provision will discourage patients from disclosing intimate details needed to provide effective therapy and deter potential patients from seeking treatment at all.
The plaintiffs claimed such mandated reporting of online viewing is “effectively useless” as a tool to identify and protect children and argued that the privacy rights of psychotherapy patients should prevail.
The trial court rejected the therapists’ claim at the pleading stage, a ruling that was upheld by the California Court of Appeal in Mathews v. Harris.
The appellate court cited the landmark case Tarasoff v. Regents to explain that a patient’s right to privacy is not absolute: “The public policy favoring protection of the confidential nature of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” Enacting and amending CANRA to include Internet child pornography as “sexual exploitation” sufficiently addressed that peril because the legislative action was “reasonably calculated to further the purpose of protecting abused and sexually exploited children.”
The court also pointed out that under California case law, there is no right to seek a particular form of medical treatment as a cure for one’s illness. “No fundamental privacy interest guarantees treatment for a sexual disorder that causes a patient to indulge in the criminal conduct of viewing Internet child pornography.”
And on the question of whether viewing of electronic images of children caused them harm, the Los Angeles based Court of Appeal was quite emphatic: “The claim that CANRA cannot be expanded to include Internet child pornography victims because they are ‘virtual’ and therefore, are not harmed is patently absurd.”
“The consumption of child pornography is not distinguishable from production and distribution in terms of harm to the victims . . . accordingly, we disagree with plaintiffs that once the images are on the Internet and are therefore ‘virtual,’ the purposes of CANRA are irrelevant.”
Gordon Ownby is general counsel for CAP. Questions or comments related to this article should be directed to gownby@CAPphysicians.com. The information in this publication should not be considered legal or medical advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.