Friday, December 27, 2019
California Supreme Court:
Challenge to ‘Sexual Exploitation’ Reporting Law May Proceed
Majority: Pleading That Disputes Validity of Requirement That Authorities Be Alerted to Patient’s Online Activity Viewing or Downloading Child Pornography Survives Demurrer
By a MetNews Staff Writer
The California Supreme Court, in a 4-3 decision, yesterday resuscitated an action by three mental health professionals who seek a determination that a statutory amendment which requires the reporting of patients who, in the course of seeking treatment for sexual disorders, admit downloading or electronically accessing child pornography violates those patients’ privacy rights.
At issue is the validity of a 2014 amendment to the Child Abuse and Neglect Reporting Act (“CANRA”).
Justice Goodwin Liu wrote the majority opinion, in which Justices Joshua Groban, Mariano-Florentino Cuéllar and Leondra Kruger joined. Chief Justice Tani Cantil-Sakauye dissented, with Justices Ming Chin and Carol Corrigan siding with her.
‘Cognizable Privacy Interest’
Lui declared that, taking the allegations of the complaint as true, the pleading alleges “a cognizable privacy interest under the California Constitution” and is therefore sufficient to overcome demurrers.
Los Angeles Superior Court Judge Michael L. Stern had sustained demurrers without leave to amend, and a judgment of dismissal was entered. Yesterday’s majority’s decision reverses the affirmance of Stern by Div. Two of this district’s Court of Appeal, which held, in a Jan. 9, 2017 opinion by then-Presiding Justice Roger Boren:
“CANRA withstands plaintiffs’ challenge. The privacy interest of patients who communicate that they watch child pornography is outweighed by the state’s interest in identifying and protecting sexually abused children. There is no fundamental right at issue in this case, and CANRA satisfies the rational basis test for determining the validity of a legislative enactment. The trial court properly dismissed the complaint.”
Cantil-Sakauye took the stance that CANRA has for decades required alerting authorities to patients who view or possess child pornography and the 2014 amendment “merely updated the statute’s definition of ‘sexual exploitation’ to keep pace with modern technology.”
Assembly Bill 1775 expanded CANRA’s definition of “sexual exploitation” so that it now applies to any person who “downloads, streams, [or] accesses through any electronic or digital media” child pornography.
Challenging the amendment are family and marriage therapists Don Matthews and Michael Alvarez and alcohol and drug counselor William Owen who seek to invoke their patients’ privacy rights.
“We focus our attention on simple possession or viewing of child pornography online or through other electronic or digital media — conduct that forms the basis of plaintiffs’ challenge.”
He said that under the amendment, Penal Code 11165.1(c)(3) “impinges on a legally protected privacy interest.” The jurist went on to observe “that the invasion of privacy caused by the reporting requirement is undoubtedly serious,” elaborating:
“As to the nature and gravity of the invasion, there is no question that revelations made by patients who seek psychotherapy to treat sexual disorders, including sexual attraction to children, concern the most intimate aspects of human thought and behavior, however noxious or depraved.”
Limits on Holding
Lui specified that the holding is only that a demurrer does not lie which “does not mean the reporting requirement is unconstitutional; it means only that the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward.”
“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.”
There cannot be a reasonable expectation in privacy in revelations by a patient of viewing or downloading child pornography online, Cantil-Sakauye asserted, explaining:
“[T]he psychotherapist-patient relationship has for more than three decades featured a reporting requirement that is triggered when a patient discloses having acquired child pornography in any of several ways. In my view, the majority fails to supply a convincing explanation concerning how a patient can have a reasonable expectation of privacy in similar disclosed conduct when the consumption of pornography occurs through online channels.”
“Given this decades-old reporting requirement, a patient cannot reasonably expect that psychotherapists will not report the patient’s disclosures of engaging in the same conduct over the Internet.”
The case is Mathews v. Becerra, 2019 S.O.S. 4473.
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