A recent change to California’s legal definition of “sexual exploitation of a minor” has created a new set of problems for therapists, while making therapy more dangerous for many patients—without increasing public safety one single bit. Since many states’ laws often follow California’s, this is an event of national significance.
Psychologists, physicians, and other professionals are “mandated reporters”—they are required by law to report certain things they see or hear in the course of their work. In such cases therapists and doctors are even instructed to violate patient-professional confidentiality. However, mandated reporters are expected to use our discretion in deciding IF something we see or hear rises to the level of having to report it. Properly used, that discretion protects the patient, protects society, and protects the professional.
California’s new law, AB1775, requires therapists and other professionals to report if a patient has knowingly downloaded, streamed, or even simply accessed (that is, viewed) an electronic or digital image in which anyone under 18 “is engaged in an act of obscene sexual conduct.” That’s any image that lacks “scientific, literary, artistic, or political” value. This can range from the most egregious child porn to the most playful sexting.
Most importantly, this law gives us NO DISCRETION in judging the potential danger involved in the behavior we are directed to report.
California requires mandated reporters to judge the words and stories they hear in session every week. Does this patient really want to murder his boss, or is he blowing off steam? Does this patient really want to kill herself, or is she dramatizing how depressed she feels? Decisions about whether or not to break confidentiality and report such conversations to the authorities—so-called Tarasoff situations—are the bedrock of therapists’ ability to deliver high-quality confidential care to patients, while assuring the public that therapists will help offer protection from people who are likely to harm themselves or others.
This law will punish many innocent teens and adults, and will deprive those who look at child porn of the therapy they may desperately want. It puts therapists in a terrible bind, robbing them of any discretion to judge if a given patient is dangerous. Ironically, therapists retain this discretion when patients talk about murder, arson, suicide, or tricking someone into getting pregnant.
The California legislature created this law with the involvement of every almost conceivable stakeholder—child welfare activists, law enforcement, social workers, etc.—except sexologists. It is shocking and frustrating that a law changing the way therapists handle patients who look at sexual images of minors was designed without consulting a single sex therapist, sex researcher, or sex educator.
Speaking practically, getting this law repealed appears impossible. But there is a growing movement to amend the new law, possibly via one or more clinical organizations like the California Association of Marriage & Family Therapists or American Association of Sex Educators, Counselors, & Therapists. The goal is to require therapists to evaluate those who look at sexual images of minors—just as therapists do with many other potentially dangerous behaviors—rather than automatically report them.
Research both in the U.S. and abroad shows that a large percentage of people who look at sexual images of minors are not at risk of committing any contact offense. The public, of course, is mostly uninformed that so many people who look at sexual images of minors never touch a minor inappropriately. That’s the deliberate result of the child porn hysteria currently sweeping the country.
Of course, a substantial number of consumers of child sexual imagery are dangerous. They need to be helped so that they don’t hurt anyone. A law that requires therapists to report such people without evaluating their potential for harm, and without treating them, guarantees that such people will remain invisible. They won’t get the help we all want them to get—making this law part of the dreadful problem it claims to want to solve.