Wake Up California Therapists! Protecting Client Confidentiality per Proposed California Law AB 1775
For a very long time, California psychotherapists have been required to break client confidentiality only when we believe a minor or dependent adult is in imminent danger of serious abuse or neglect or a life is imminently at risk (homicide and/or suicide with a clear plan). Over the years this has enabled us to privately counsel countless men and women seeking help with discontinuing illegal or potentially harmful behaviors, or with diminishing shame and self-hatred over past misconduct. Many of us have helped these individuals develop and maintain healthier, happier, and safer lives – without needing to break our vow of confidentiality.
In California, the thinking has always been, if a client is not imminently likely to perpetrate abuse or harm on himself or another person, it is better to help that person work through his issues than to toss him to the wolves, which might result in arrest, possible conviction, and maybe even jail or prison – any and all of which are (more often than not) undeniably counterproductive to long-term behavior change and emotional healing. (The term “soul-crushing” comes to mind.) Essentially, California clinicians have been free to confidentially help their clients without fear of judicial intervention, except in cases of imminent risk. Furthermore, these reporting requirements have been very much in line with the reporting obligations in most other states.
This could all change very soon with a recently proposed California law, Assembly Bill 1775. In many respects AB 1775’s suggested changes seem minor, but this is absolutely not the case. If AB 1775 is passed and adopted, California therapists will be required to report to authorities any client who “downloads, streams, or accesses” images of any person under the age of 18 engaged in an act of obscene sexual conduct. Again, this doesn’t seem like much of a change, but in fact it’s a game changer. Simply put, this new law would require any therapist who learns that a client has even inadvertently accessed illegal sexualized imagery to report that person to the legal system. And these days it’s pretty easy to stumble upon illegal content, especially if people are looking at “youth” or “teen” Internet porn sites, which are by far the most commonly searched-for categories of porn in both the US and most other countries. And there’s no wiggle room for psychotherapists here, even though this is a crime with no direct victims. In fact, if a therapist fails to report such a violation, he or she could be subject to some fairly draconian sanctions, including loss of licensure, fines, and potentially even jail time. All for trying to help a client who is not a danger to self and does not have an active plan to physically harm or abuse another person.
A Call to Action
Opposing a law like AB 1775 is not a popular stance, as the suggested changes ostensibly protect children and teens from active, in-person sexual abuse. However, as surprising as this may be to many readers (and the legal system), there is no credible evidence linking the viewing of child pornography – even the intentional viewing thereof – to contact offenses against minors. Probably the best and most extensive study on this topic, conducted primarily in Switzerland by Swiss and German researchers, concluded, “Consuming child pornography alone is not a risk factor for committing hands-on sex offenses.” In fact, this research found that less than 0.05 percent of child porn viewers without a prior hands-on child sex offense went on to commit a hands-on child sex offense (1 out of 220). The study’s lead researcher, Frank Urbaniok, has stated the matter quite clearly, telling members of the press unequivocally that “the motivation for consuming child pornography differs from the motivation to physically assault minors.” This evidence has been repeated in other studies, with the results cogently discussed by Dr. Michael Seto in his very useful new book, Internet Sex Offenders.
So, to be clear, AB 1775 seeks to punish individuals who are not an imminent danger to themselves or others, along with any California-based psychotherapists who might choose to treat these individuals rather than report them. Exacerbating the situation is the fact that California is often a bellwether state when it comes to issues of psychotherapeutic advancement. For instance, the state’s recent and highly commendable decision to disallow the practice of “gay conversion therapy” on minors has already been mirrored by New Jersey, with New York (and hopefully other states) likely to follow in the very near future. In short, if AB 1775 is passed it may serve as a new nationwide standard, thereby creating significant and mostly unwarranted challenges that could negatively impact distressed clients and therapists all over the country.
As of now, the California Association of Marriage and Family Therapists has signed off on this proposition, likely not fully understanding the reality of what they are supporting. Or maybe CAMFT – an organization this author has been an active part of for many years – has simply forgotten that the purpose of counselling and psychotherapy is to help clients who want to live differently, not to simply turn them over to the authorities. Either way, it makes no sense that we would sacrifice willing clients who are highly unlikely to harm another person. Furthermore, this law would clearly and without question prevent many individuals who both need and desire assistance with non-contact illicit sexual activity from seeking that assistance. And that is counterproductive not just for the potential client but for our culture as a whole.
If you find that you are disturbed by proposed California Law AB 1775, as I am, and you are a member of CAMFT, please contact the organization and request that it recant its support. If you are a member of a different professional psychotherapeutic organization, such as the California Society for Clinical Social Work, the National Association of Social Workers, the American Psychiatric Association, or the American Psychological Association, please contact that group and/or the California State Legislature to register your opposition to AB 1775. Even if you are a clinician practicing outside of California, if you feel strongly about opposing this proposed law, please let these organizations and the state of California know, recognizing that laws passed in California may soon become the standard in your state, too.
This blog would not be valid without acknowledging the tremendous harm caused to minors who are drawn into the porn industry. For that crime there is no excuse. Yes, the minor who is exhibited online is harmed by that. And yes, those who persistently and consistently view this kind of abusive content should be required to undergo clinical assessment and treatment and possibly legal sanction. That said, the government is perfectly capable of finding, arresting, and prosecuting those who create, distribute, and repeatedly view child pornography. In fact, nationwide sting operations are already in place. Demanding that psychotherapists break confidentiality and report their clients to legal authorities even in cases where no physical contact has been sought or made is not only unnecessary, it tears at the very fabric of our profession.
Sometime prior to August 25, 2014 (likely over the preceding weekend) California Governor Jerry Brown quietly signed AB 1775. This is bad news, but the fight is not over. We will simply need to convince our professional organizations and legislators to either redact or (more likely) amend the law next term. We need to convince them that the intent of the law was good but the wording was bad. Yes, therapists do need direction in terms of reporting child porn users, but the answer is not to remove all discretion from the therapist, which is what AB 1775 has done. As such, therapists are now legally obligated to report to the authorities a 19-year-old boy who tells you his 16-year-old girlfriend sent him a topless sext. There is no longer any discretion in this matter, even though the client in question is hardly a threat to perpetrate a child sex offense.
This all seems a bit excessive, especially when you consider that California therapists (and most therapists nationwide) have long had discretion to report in areas of homicide, suicide, child abuse, and elder abuse. In all of those cases we assess whether the client has a clear and workable plan to perpetrate harm on self or others. We then make a discretionary decision on reporting. If we believe the client presents a clear and present danger to self or others, we report. If not, then we treat the issue privately – keeping an eye on the situation to make sure it diminishes rather than escalates.
Hopefully this new law can and will be amended in a way that reinstates traditional levels of therapist discretion in California, rather than taking the matter out of a clinician’s hands entirely. Remember, our job is to help our clients, not to punish them.
Weiss LCSW, R. (2015). Wake Up California Therapists! Protecting Client Confidentiality per Proposed California Law AB 1775. Psych Central. Retrieved on March 19, 2018, from https://blogs.psychcentral.com/sex/2014/08/wake-up-california-therapists-protecting-client-confidentiality-per-proposed-california-law-ab-1775/