The patient was confiding in a therapist about his cocaine addiction when he hinted he also had a problem with pornography. Would the therapist have to report him to authorities, he nervously asked.
Graeme Daniels, a Walnut Creek-based psychotherapist, said he explained that a new law required him to call police if he learned a client had viewed child pornography.
The patient, a father of two in his 40s, became flustered and would not give details about the pornography, Daniels said. Months after the exchange, the man had yet to return to see Daniels.
The new California law, which took effect in January, was crafted by a therapist industry group but is now under fire from Daniels and other therapists who say it has undermined their ability to properly treat patients. As a result, they contend, many who need help are deterred from seeking therapy, including men and women who feel a sexual attraction toward children, as well as sexting teens who exchange nude photographs of each other.
“This has a chilling effect on what people are looking for in therapy — the one private place left in society where you can talk about your stuff and get help,” Daniels said.
The law is now at the center of a legal battle in which two therapists and a substance abuse counselor have sued the state to halt the law, arguing that it violates a patient’s constitutionally protected right to privacy and leaves therapists unable to provide help to those who seek it.
The lawsuit has reignited a larger debate about the need to balance a patient’s right to privacy in therapy with a professional’s legal and moral duty to report crimes and protect others from harm.
During the last 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 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.
Donald N. Bersoff, professor emeritus at the Thomas R. Kline School of Law at Drexel University and past president of the American Psychological Assn., said some legal requirements can dissuade people from disclosing their psychological problems during treatment and force therapists to err on the side of reporting their patients out of fear of losing their licenses and facing possible criminal prosecution. Therapists, he said, should be allowed the discretion to decide when they need to break confidentiality.
“You would hope that there would be some place that a patient would feel safe to talk about their urges, their fears and their concerns,” he said. “But slowly, the confidentiality of therapy is being eroded.”
But supporters of such laws say they have helped authorities prevent serious crimes from taking place. Sean Hoffman, director of legislation for the California District Attorneys Assn., said the law can help police identify people who view child pornography and create a massive market for material produced through the abuse and exploitation of young children.
“If we don’t know about it, we can’t prosecute it,” he said.
The new law was the result of lobbying efforts by the California Assn. of Marriage and Family Therapists, which represents about 32,000 therapists. Cathy Atkins, the association’s deputy executive director, said the group frequently fielded questions from members who were confused about what they were required to report.
Previously, therapists were required to alert authorities when there was a reasonable suspicion that a person “knowingly developed, duplicated, printed or exchanged child pornography.” But the statute did not mention viewing or downloading material from the Internet, and some of the association’s members were worried they were failing to follow the law by not reporting when patients confided they had viewed online child pornography, Atkins said.
“The desire was to make the law clear,” she said.
The association’s lobbyist brought a proposal to Assemblywoman Melissa Melendez, a Republican from Lake Elsinore, who sponsored the legislation last year. Both houses passed her bill unanimously.
At the time, Melendez said child predators were taking advantage of evolving technology. “It is crucial that California’s laws are updated to ensure these criminals are held accountable for their heinous actions,” she said in a statement after the bill was passed.
Tim Shannon, a lobbyist for the association who worked on the bill, acknowledged that some therapists have criticized the law but said many support it. Reporting a consumer of child pornography, he said, could help lead police to find children who are being exploited and catch those who produce the illegal material.
“I think California protecting the children seems to trump the privacy protection of the abuser,” Shannon said.
But some therapists argue that the additional requirements can ensnare patients who therapists believe aren’t a threat to children but are merely seeking out professional help for serious problems. Other patients, they say, might need treatment to prevent acting on their impulses and abusing children.
Michael Alvarez, a Torrance psychotherapist who specializes in treating addictions, said he has helped dozens of people who felt an attraction to children and wanted assistance in how to control themselves.
“It restricts my ability to help individuals who want help,” he said.
In February, Alvarez was among those who filed a lawsuit in Los Angeles County asking a judge to stop enforcement of the law.
The state has responded by asking the judge to throw out the suit, arguing that a patient’s right to privacy is outweighed by a far more compelling interest in protecting sexually exploited children.
An attorney for Los Angeles County Dist. Atty. Jackie Lacey, who was also named in the lawsuit, wrote that the therapists’ argument fails to recognize that child victims are abused and exploited each time an image is shared, downloaded and viewed.
A judge is expected to decide this month whether the lawsuit can proceed.
In the meantime, Don Mathews, a psychotherapist who works in Walnut Creek and is one of the plaintiffs in the lawsuit, said he is concerned that the law severs the trust between therapist and client that is crucial to treatment and deters people who consume child pornography from getting the psychological help they need to stop.
“There is now a fear that their therapist is working as a police officer and not as a therapist,” he said.