Ruling Shields Threats Told to Therapists

People who threaten during therapy sessions to commit violence cannot be held criminally liable for their threats, a California appeals court has ruled in a decision that divides mental health experts and law enforcement officials.

The ruling follows two recent cases in which patients were prosecuted for making “terrorist threats” after telling their doctors they were angry enough to commit murder.

Many counselors praised the ruling, arguing that the whole point of therapy is for people to express their true feelings and that the prosecutions--if allowed to stand--would have a chilling effect on their sessions.

Protection against prosecution is all the more important now, they argue, because increasing numbers of employers, courts and schools are sending people to counseling and anger management sessions to deal with their problems.

“If you place patients at risk for talking about their violent fantasies . . . then you’re providing a strong disincentive for them to discuss these issues,” said Paul Appelbaum, president-elect of the American Psychiatric Assn. and chair of the psychiatry department at the University of Massachusetts.

Therapists in California are still required by law to warn potential victims if a patient makes a credible threat of violence. Threats made directly to a victim are also open to prosecution. But some in law enforcement believe that these laws aren’t enough and that the appeals court decision represents a step backward.

“If this stands, then you leave the victims without a way to protect themselves,” said Superior Court Judge Pamela Iles, who hears all domestic violence cases in south Orange County. “These threats aren’t just ‘I’m going to hit you’ or ‘I’m going to hurt you.’ They’re ‘I’m going to kill you.’ And these people carry out their threats.”

The appeals court ruling stems from the case of a Los Angeles County Jail inmate who was convicted of making a terrorist threat for telling a jail psychologist he wanted to kill his estranged girlfriend. The 2nd District Court of Appeal overturned that conviction last month, saying it’s bad public policy to punish patients for expressing homicidal thoughts.

“Instead of exposing their thoughts for treatment, they might repress them and act on them,” Justice Arthur Gilbert wrote. “Such a result would not further the interests of victims, psychotherapy or the criminal justice system.”

The state attorney general’s office, which had defended the right of local prosecutors to bring charges related to statements from therapy, decided last week that it will not ask the state Supreme Court to review the opinion, saying it doubted the outcome would be any different. This means the appeals court ban will become law throughout the state.

Prosecutions of people who make threats in therapy are rare, though one Orange County case is now generating controversy.

Orange County prosecutors said they are now reviewing the appeals court ruling before deciding on Nov. 16 whether to move forward with “terrorist threats” charges against Frank Gardner, a former San Clemente High School teacher. Gardner was arrested in February after telling staff at an Orange County hospital that he felt like taking his gun and killing his supervisors. Gardner went to the hospital to seek psychiatric care.

Prosecutors charged Gardner with making a terrorist threat, a felony. He spent two months in jail before a judge eventually lowered his $500,000 bail.

Gardner, 50, visited South Coast Medical Center shortly after his supervisors told him he was being disciplined for sexual harassment. He told a nurse and later a doctor that he needed to be in a “safe place,” was extremely angry and wanted to kill his supervisors.

During a preliminary hearing earlier this year, Gardner recalled telling them, “I really don’t want to hurt anyone. I need help.”

Because Gardner had guns at his home, prosecutors feared he may have intended to carry out his threat. Authorities also allege that Gardner knew the hospital staff would relay the threat to his supervisors.

Deputy Dist. Atty. Mike Fell said he considers the case against Gardner sound, noting that a judge heard some of the evidence and determined it should go to trial. But Gardner’s lawyer, Stephen Klarich, said the whole case has gotten out of control.

“They should have put him under observation,” Klarich said, “but instead, it snowballed into a criminal case, and nobody wanted to dismiss it.”

It is a crime in California to threaten another person with violence. However, the person making the threat must believe his words will reach the intended victim. Such cases are usually filed when a threat is expressed directly to a victim, either verbally or in writing.

For a quarter century, therapists in California have been required by law to notify possible victims when a patient makes a threat of violence. The state has the most demanding requirements in the nation when it comes to such threats. California therapists must notify both police and the victim; in most states, one or the other will suffice.

California’s law, inspired by a 1974 slaying that followed a threat in therapy, was intended to protect possible victims, not to prosecute patients for making threats, said USC law professor Erwin Chemerinsky.

“It’s a long way from saying, ‘We want therapists to warn people,’ to saying, ‘People who confess thoughts to therapists become terrorists,’ ” Chemerinsky said. “You turn therapists into arms of the police departments.”

Other mental health professionals fear that prosecuting people like Gardner might discourage people from seeking treatment and from honestly discussing their feelings. They say people often make threats in the heat of anger that they would never carry out.

“When you start prosecuting people for everything they say, for what they think, that’s not going to benefit anyone,” said Nancy Clark, whose Orange County counseling program offers anger management and chemical addiction treatment. “From a therapy perspective, how are people going to get help and benefit from talking to a therapist if they have to worry that that person is going to be turned against them?”