Should Therapists Have to Report Patients Who Viewed Child Pornography?

Say that a 25-year-old man walks into a therapist’s office, where he expresses gratitude for being seen on such short notice. “I have a terrible secret,” he confesses. “I’m attracted to adolescent boys. I know how wrong it would be to act on that impulse. I haven’t yet, and I want to make sure that I never do. Can you please help me?”

The therapist nods.

“You did the right thing seeking help,” she says.

The man begins to cry in relief. “Thank you,” he says. “I’ve always purposely avoided kids, but last month my dad died, and last week I was going through an old box of his stuff when I found some old child pornography he had and it stirred up all these urges. I finally burned it, but I’m embarrassed to say I kept it for a couple days first.”

Under a California law that went into effect at the beginning of this year, the therapist in this hypothetical example—and 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.

My thinking is as follows:

• Sexting among teens should not be criminalized as child pornography at all, and prosecuting teens for sending or receiving explicit images, then forcing them to register as sex offenders, does far more to damage them than does sexting itself.
• Everyone else affected by this law belongs to a small subset of people: those who’ve viewed child pornography and are actively seeking help from a therapist. It seems to me that society has a strong interest in these people seeking and getting treatment, and that this new requirement acts as a powerful disincentive that will lead to a world in which comparatively more child porn is consumed and fewer people attracted to kids are successfully treated.

That high cost of disincentivizing treatment might be worthwhile if there were a large countervailing benefit. But is there? Knowledge of the new law is bound to spread quickly. Once that happens, vanishingly few patients will admit to viewing child porn. That logic alone is perhaps not enough to discredit a reporting requirement. Vanishingly few people are going to tell their therapist that they have a kidnapped child locked in the basement. The therapist could hardly keep quiet about that.

“Petitioners do not dispute that the state's compelling interest in preventing child abuse or neglect can outweigh a patient's constitutional privacy right in the non-disclosure of communications ... regarding ‘hands-on’ or ‘contact’ sexual abuse,” a filing in the lawsuit against the new requirement states. But it adds that “reporting of patients who have viewed Internet child pornography creates no reasonable likelihood that the depicted child victim is in California and can be identified and protected … from further ‘hands on’ sexual abuse by the pornography producers.”

The reality of the industry is that “there are literally tens of thousands of individual child victims depicted in such illegal Internet images that are produced in countries all over the world ... The state's compelling interest in protecting California's children from abuse is not substantially or rationally furthered by mandating that psychotherapists report patients who have only possessed or viewed child pornography.”

Possessing and viewing child pornography is morally wrong. The illegality of the industry is justified. But this particular reporting requirement doesn’t help protect kids.

As the legal effort to overturn the law goes forward, it will turn on the privacy rights afforded by the U.S. and California constitutions. But even if courts conclude that this law is constitutionally valid, legislators should reconsider it. “I think California protecting the children seems to trump the privacy protection of the abuser,” Tim Shannon, a lobbyist who supports the new requirement, told the Los Angeles Times. But framing the debate in terms of pedophile rights versus protecting children is misleading precisely because a a right or ability to seek help anonymously seems more likely to enhance than to detract from the safety of children. If that is truly the priority, the old regulations seemed to better serve them.