Mathews v. Becerra (Dec. 26, 2019, S240156) __ Cal.5th __ [2019 WL 7176898]

California’s right to privacy may override some CANRA reporting duties.

The Child Abuse and Neglect Reporting Act (CANRA) requires mandated reporters (e.g., marriage and family therapists, psychologists, and drug and alcohol counselors) to report incidents of suspected “child abuse or neglect,” including “sexual abuse” and “sexual exploitation.”  In 2014, Assembly Bill 1775 (AB1775) expanded the definition of “sexual exploitation” to include “[a] person who depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct.”  Therapists filed suit alleging that AB1775 (particularly the highlighted portions) violates their patients’ constitutional right to privacy. They alleged that statements by their sexual disorder patients during treatment about downloading and viewing child pornography are confidential, that maintaining confidentiality is essential to treatment, and that the patients pose no serious danger of engaging in “hands-on” sexual abuse or exploitation. The therapists alleged that requiring them to report their patients for possessing or viewing child pornography fails to further CANRA’s purpose of identifying and protecting abused children and disincentivizes patients with sexual disorders or addictions from seeking treatment.

The trial court sustained without leave to amend the demurrers of the Attorney General and Los Angeles County District Attorney, ruling that there is neither a fundamental right to possess or view child pornography nor a reasonable expectation of absolute privacy in psychotherapeutic treatment, and that the reporting requirements do not amount to a serious invasion of privacy. The Court of Appeal affirmed, holding that the therapists had failed to state a valid privacy claim under the California Constitution.

The California Supreme Court reversed, holding that the state constitutional right to privacy might override the therapists’ CANRA reporting duties in the limited circumstances of this case.  While not making a final determination regarding the constitutionality of AB1775, the court held that the therapists’ complaint survived the demurrers under the framework in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.  First, the court held the therapists asserted a cognizable privacy interest regarding their patients’ disclosures during voluntary psychotherapy about downloading and electronically viewing child pornography, where the therapists had determined that their patients do not present a serious risk of sexual contact with children or active distribution of child pornography. Second, the patients have a reasonable expectation of privacy regarding communications to therapists about possessing or viewing child pornography.  Third, the reporting requirement is a serious invasion of privacy due to the scope and potential impact of disclosing some of the most intimate aspects of human thought to various agencies, which necessarily triggers further investigations and possible criminal prosecution and sex offender registration.

The Court did not strike the ultimate balance to determine if the AB1775 reporting requirement was constitutionally justified. Instead, the Court remanded for further factual development designed to draw out whether the statute serves its intended purpose. In addition, “the parties may develop evidence on a variety of relevant issues, including but not limited to the number of reports that psychotherapists have made regarding the possession or viewing of child pornography since the 2014 amendment; whether the reports have facilitated criminal prosecutions, reduced the market for child pornography, aided the identification or rescue of exploited children, or otherwise prevented harm to children; . . . whether there are less intrusive means to accomplish the statute’s objectives . . . [and] the extent to which the reporting requirement deters psychotherapy patients from seeking treatment for sexual disorders, inhibits candid communication by such patients during treatment, or otherwise compromises the practical accessibility or efficacy of treatment.”

The bulletin describing the California Supreme Court’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission. For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.