Metropolitan News-Enterprise


Friday, May 12, 2017


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High Court to Hear Privacy Challenge to Child Abuse Reporting Law




The California Supreme Court has agreed to decide whether requiring therapists to notify authorities that their patients are accessing or viewing child pornography violates those patients’ constitutional rights to privacy.

The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in Mathews v. Harris (2017) 7 Cal. App. 5th 334. Div. Two of this district’s Court of Appeal ruled Jan. 9 that the interests served by the reporting requirements outweigh the privacy interests asserted by a group of mandatory reporters on their patients’ behalf.

The plaintiffs include the founder and director of Impulse Treatment Center, described by the Court of Appeal as the nation’s largest outpatient treatment center for sexual compulsion/addiction. They are challenging a 2014 law, AB 1775.

The legislation enacted an amendment to the Child Abuse Neglect and Reporting Act, or CANRA, that requires them to report patients who disclose that they have developed, downloaded, streamed, or accessed child pornography through electronic or digital media.

They contend that the activities targeted by the law are too attenuated from actual abuse or exploitation of children to justify the intrusion into their private lives.

“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, no history of ‘hands-on’ sexual abuse or exploitation of children, and often express disgust and shame about their sexual attraction to children for which they are actively and voluntarily seeking psychotherapy treatment,” the therapists asserted in their complaint.

They also contended that, given the international scale of Internet pornography, the reporting requirement is unlikely to be of much assistance to California authorities in protecting the state’s children.

Los Angeles Superior Court Judge Michael Stern sustained demurrers brought by the state attorney general and the Los Angeles County district attorney. He concluded that there is no constitutional right to possess or view child pornography, and that those who access or view child pornography know that their conduct is socially unacceptable and criminal, and thus have no reasonable expectation of privacy.

Stern further concluded that because there is no fundamental right to informational privacy under the Fourteenth Amendment, the statute is constitutional as long as it has a rational basis. There is such a basis, he said, because the law is related to the state’s goal of protecting children from sexual exploitation.

Presiding Justice Roger Boren, who has since retired, authored the opinion of the Court of Appeal. The plaintiffs, he said, failed to establish that the statute, on its face, deprives patients of any constitutional right.

Possession of child pornography, he wrote, is not a right, but a crime under California and federal law. Requiring therapists to report patients who use the Internet to acquire and view such material, he said, is not significantly different from requiring them to to report that patients have created or exchanged child pornography in the form of films, photographs, or slides, which the law has required since the 1980s.

The plaintiffs, he went on to say, failed to show that the law seriously invades patient privacy, or that any such invasion would outweigh the state’s countervailing interests.

He noted that the law requires therapists to make disclosures to law enforcement, not to the public. And he found the therapists’ opinions as to whether their patients use of child pornography represents an actual danger to children to be of little import, given that the conduct is criminal in any event.

“Even if allegations about clinical correlations and the psychotherapists’ opinions about imminent danger of physical abuse by the patients who view child pornography are accepted as true, it does not guarantee that none of the patients will ever physically abuse a child,” Boren wrote, “A report to authorities may disrupt the proliferation of child pornography and deter the underlying conduct of viewing children who have already been sexually exploited. Both of these objectives protect children and justify AB 1775.”


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