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July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 at 10:42 AM | Permalink

Comments

Bad idea especially along the outer limits of what is banned esp. since the old rules didn't just let those involved free reign.

Posted by: Joe | Jul 29, 2015 10:51:32 AM

As some of you may recall I am a psychologist. One of the great ironies of modern life is that while on one hand there is a greater acceptance of mental issues than in the past there is greater and greater demand that the intimacy of the patient-psychologist relationship be violated. There is an old joke that "if you think you need to see a psychologist, you do" and I like to argue that in today's world, "if you think you need to see a psychologist, you shouldn't." One shouldn't because one is likely to inadvertently say something to the police informer (sorry, I mean psychologist) that will land one is prison.

What galls me the most is that if a client were to say they viewed child pornography to a lawyer, they would be legally protected but if they say something to a psychologist they would not. How is that for rent seeking?!

Posted by: Daniel | Jul 29, 2015 11:24:58 AM

Yes, 1, court ordered treatment - 2. discuss any deviant thoughts or actions -
3. therapist reports to law enforcement

Should all social interactions lead directly to law enforcement? This is all very disturbing to those who came of age when individuals solved problems with children, neighbors, landlords, employees and strangers without the intervention of a government employee.

Posted by: beth | Jul 29, 2015 11:52:32 AM

There are different rules for doctors than lawyers in part because the Constitution provides a certain role for the latter, so don't think it mere "rent seeking."


Posted by: Joe | Jul 29, 2015 3:06:32 PM

There are different rules for doctors than lawyers in part because the Constitution provides a certain role for the latter, so don't think it mere "rent seeking."


Posted by: Joe | Jul 29, 2015 3:06:34 PM

@Joe

Who decided that the Constitution holds special privileges for lawyers? Lawyers.

Posted by: Daniel | Jul 29, 2015 4:29:17 PM

This is certainly not the case in Germany. German law dictates that a therapist/psychologist must report viewing of child pornography to the authorities only if the client refuses treatment or continues to engage in this deviant behavior. We, as a society must recognize that viewing/downloading of child pornography is a deviant behavior that requires professional, behavioral treatment. In this country, the worst crime in relation to the punishment that one can commit is viewing and downloading of child pornography. There are mandatory minimum sentences for this crime, a permanent felony record, a permanent registry, proximity regulations, etc...
It has been proven time, and time again that therapy is very effective for this kind of behavior. Not fear based laws.

Posted by: tommyc | Jul 29, 2015 4:30:30 PM

"Who decided that the Constitution holds special privileges for lawyers? Lawyers."

Not just lawyers. The text of the Constitution protects explicitly a right to counsel and sets up a range of protections to defend a person being prosecuted from loss of liberty. The people who wrote and ratified this weren't all lawyers & it reflected specific concerns and institutions long in place. There is not a similar detailed protection for medical care, including a "right to a doctor for one's health."

The text doesn't just single out lawyers; the press, religion, the militia and so forth also are covered. They are protected not merely because, e.g., priests determined they should be protected. There is some rent seeking going on so I'm not saying that isn't PART of it but such is the case for physicians at times too -- e.g., certain barriers of entry. And, the public at large understands this too. Their votes were needed.

Posted by: Joe | Jul 29, 2015 7:04:45 PM

Where in the Constitution do they enumerate the responsibilities of Attorneys?

Court ordered therapy somehow reminds me of Solzhenitsyn and the Gulag.

Posted by: beth | Jul 29, 2015 7:08:26 PM

There are so many presumptions, assertions and stereotyping in the above comments that responding to them is futile and worthless. The first worthless presumption in any comment above is the definition (or lack thereof) of CP. Should the person who unintentionally viewed a lying underage pornographic actor/actress, an outdated Abercrombie and Fitch catalog or intentionally real infant abuse be treated legally the same. The courts say yes. I maintain that the courts, lawmakers and government in general are worthless when it comes to pretending to be God. Look at the real crimes and real harm, not just hypothetical harm (Planned Parenthood anyone)?

The Pretense of "limits" supposedly contained in the Constitution have long been abandoned by both parties and All governmental actors. While true, classic production, distribution and possession of real pre-pubescent CP is abominable, each case should be treated proportionally to the nature of the crimes as they really are. Current statutory limits are arbitrary and lack a basis directly related to human nature. After all, the "age of majority" in pre WW II Germany was 21, and not all developed countries currently hold the age to be 18.

We have met the Stazi, and they are us. Our laws belong to the theater of the absurd.

Posted by: albeed | Jul 29, 2015 8:55:45 PM

Has Jaffe been reversed? Do Supreme Court decisions prevail over state regulations?

https://en.wikipedia.org/wiki/Jaffee_v._Redmond

At the very least, once a patient is known to or states he has a problem with pedophilia, he needs a clear disclosure that all factual utterances must be reported to the authorities. He should sign the notice he has received.

In real life, reports to child welfare authorities of suspected physical, sexual or emotional abuse pretty much end the therapeutic relationship. Could anyone here return to a treatment professional who has sicked the authorities, causing an investigation with zero Fourth Amendment or Fifth Amendment due process rights? They walk in without warrants nor the hearings for those warrants. They can take children away without any hearing, chance to argue in front of a judge, and then keep the child for as long as they wish. Child welfare workers have far more authority than the police. Nor can they be sued for their hideous over reaching, their horrific and unfair errors in allegations, and their racial biases. The number of children removed are, of course, far out of proportion to their fraction of the population for blacks, and Hispanics.

Only a fool would seek therapy for pedophilia in California, which will certainly result in long prison sentences, among a very hostile inmate population. That means the supervision, coping skills, various therapies, and alternative court ship skills to be imparted to patients will not take place.

There is a set of people with irresistible urges to prey on children. They are often slowed down by medication. Doctors administering these treatment are included in the mandatory reporting law. So their patients will likely go untreated, and continue to have persistent irresistible urges.

We have also provided references that the legalization of the viewing of child porn reduced the rate of reported sexual abuse of real children by 40%, and the new prohibition, increased it by that amount.

Lawyers with power. They are a real trip.

Posted by: Supremacy Claus | Jul 30, 2015 1:13:32 AM

All lawyer privileges are self dealt. No human being can regulate himself. That the lawyer has precluded any accountability whatsoever outside the profession fully justifies violence against the profession, and its hierarchy, in formal logic.

Posted by: Supremacy Claus | Jul 30, 2015 1:19:02 AM

"No human being can regulate himself."

Self-government seems impossible then. Is there a special institution that passes laws applicable to legislators, executes laws applicable to executives and interprets laws involving judges?

Since albeed grants that there are some legitimate limits to child pornography, it follows that there are "lines" since distribution of A&F catalogs as compared to something else is not the same thing. "Proportional" means there are lines & the problem apparently are where they are drawn. Which is not surprising -- if something is "abominable," there will be concern about allowing some of it. So, the rules in place will be overinclusive.

Posted by: Joe | Jul 30, 2015 9:59:36 AM

@joe "Self-government seems impossible then."

That all depends on how one defines the self and how one defines government. It has Madison who claimed that the core of government was that "ambition counters ambition"--Federalist 51. Now, some would claim that this type of government envisioned by Madison is nothing more than the law of the jungle with a frosting of an illusion called Democracy smeared on top. Certainly, that is the position taken by the late Richard Rorty. We also see that idea of government prominent in the thought of people like Michael Dorf and Jeffery Fisher--rules are just folly swaddles.

If one has an actual interest in this topic read "The Self Illusion"

http://www.amazon.com/The-Self-Illusion-Creates-Identity-ebook/dp/B008AJ2FCY?tag=duckduckgo-ffsb-20

The book is an attempt to explain how self-government is possible even if it is true that no human being can regulate himself.

Posted by: Daniel | Jul 30, 2015 11:02:44 AM

Don't all of you see how absolutely **crazy** these laws have gotten!

Now people with a legitimate reason to seek out a therapist will not even consider it because they might get turned into the police just for trying to get help for their problem.

God....if you can't see that we need reform on the current laws that these stupid politicians created, then our society headed down the toilet fast!

Posted by: Book38 | Jul 30, 2015 3:43:08 PM

Book38:

Sadly, you are correct .... and no one cares. They are fiddling while the US burns, laughing at the medieval clerics for discussing how many angels can dance on the head of a pin but eagerly await the next dropping from the 9 baboons in black pajamas as if that is the be all and end all.

Such is the state of the ignorant, publically educated masses who do not realize that the references to liberty are mere platitudes in this country and have swallowed the propaganda and self-delusion so willingly because it makes their life easier and does not seem to affect them or their children - yet. REAL thinking is hard.

Posted by: albeed | Jul 31, 2015 7:45:10 AM

@Daniel I read Madison.

The point holds -- there are checks and balances, but Congress still passes laws that regulates themselves, executive officers execute laws applicable to themselves and judges interpret laws that in various cases apply to themselves (the constitutionality of a tax on federal judges would still be heard by the Supreme Court).

I have read Michael Dorf. "rules are just folly swaddles" is not what I get from it.

Posted by: Joe | Aug 1, 2015 10:51:40 AM

"I have read Michael Dorf. "rules are just folly swaddles" is not what I get from it."

Then you're not paying attention.

Posted by: Daniel | Aug 3, 2015 1:50:46 PM

Perhaps, but remember the definition of child porn is wide ranging, abuse of someone 1 day old vs. an unshared self-ie of a 17 year old 364 days in the nude or provocative pose meets the same definition. Of course those two are extremes, but the meet the same CP definition and to give you the wide latitude.

Posted by: alex | Aug 4, 2015 2:22:04 AM

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