Friday, February 22, 2008
Court Cannot Require Parolee to Waive Therapist-Patient Privilege—C.A.
By KENNETH OFGANG, Staff Writer
A parolee cannot be required to waive the privilege for communications with his private therapist in the absence of evidence that he is seeking therapy for some “nefarious” reason, the Court of Appeal for this district has ruled.
Div. Six Wednesday affirmed a Santa Barbara Superior Court judge’s ruling striking down a probation officer’s order that Reynaldo Corona either sign a waiver of therapist-patient privilege or stop seeing the therapist he retained after serving a sentence of more than three years in prison for molesting his two stepdaughters.
Corona was released on parole in May 2006, and directed to comply with various conditions, including participation in treatment as ordered by his parole officer. In his petition for writ of habeas corpus, Corona contended that he had been attending monthly therapy sessions in accordance with his parole agent’s order but had, at his own expense, undertaken private counseling with a specialist in sex offenses “to understand [his] offense and to eliminate any possibility of future difficulties.”
The state responded that while Corona had given the required waiver of privilege with regard to his state-paid group therapy, he should be required to sign a waiver with regard to his private sessions as well, since he might “choose to reveal information in his private therapy which he withholds from his group therapist.
By way of example, lawyers for the state cited the possibility that a “high risk” offender such as Carona might reveal to his private therapist that he had viewed pornography or visited a playground, either of which would violate parole conditions and indicate a possibility of re-offense.
Superior Court Judge Joseph T. Lodge disagreed, ruling that the condition was unreasonable and granting a writ of habeas corpus.
Justice Paul Coffee, writing for the Court of Appeal, cited In re Stevens (2004) 119 Cal.App.4th 1228, in which the court held that a convicted sex offender could not, as a condition of parole, be barred from using a computer where the offense did not involve computers.
“Here, Corona was convicted of committing a lewd act upon a child. He entered into private psychotherapy, in addition to the therapy required by the parole authority,” he wrote. “This would seem to be something for which he should be credited, rather than penalized. The People have not identified a nefarious reason for Corona’s decision to engage in additional therapy. “
He went on to say:
“We find disturbing the People’s assertion that it may revoke parole if Corona refuses to sign the waiver,” the justice said. “This implicates his constitutional right to due process....Before parole may be revoked, there must be an appropriate determination that the individual has breached a parole condition.”
Coffee also noted that under California law, Corona’s private therapist would be required to disclose any information causing the therapist to conclude that he presents a danger to another person.
The case is In re Corona, 08 S.O.S. 1190.
Copyright 2008, Metropolitan News Company