The law that will lose us our clients (among other things)

In a recent editorial directed at leaders of the California Association of Marriage and Family Therapists, LCSW Robert Weiss wrote eloquently in protest of AB1775, a new California law (effective in January, 2015) which reduces therapist-client confidentiality, purportedly because it will protect children from the downloading and dissemination of child pornography. It won’t.

Weiss reminds us that the protection of client confidentiality is among the most elemental facets of a productive and meaningful psychotherapy relationship–that without the safety and trust provided by client confidentiality there is no true clinical path to healing. This teaching follows ethical standards dating back to the Roman Hippocratic Oath. The legal exceptions to this principle center on the prevention of imminent direct harm to others.

Perhaps the most significant change in so-called “duty to warn” laws occurred in 1976, with Tarasoff v. Regents of the University of California, a case whose finding determined that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. A less palatable revision of confidentiality law occurred in 2001, following the 9/11 attacks, in the form of the Patriot Act: section 215 authorizes FBI agents to request a subpoena from a special court, obtain access to psychotherapy records, and further prohibits clinicians from revealing to clients that their clinical records have been subpoenaed. Today, for the moment, the hysteria that induces totalitarian intrusion surrounds pedophilia, hence AB1775. Not surprising, really. If you want to pass a law that is uninformed by research or logic, your best bet is to have it be about sex.

Ostensibly, AB1775 will broaden the scope whereby a clinician such as a therapist can report an individual to authorities if said individual has used child pornography. Under the existing Child Abuse and Neglect Reporting Act, therapists are mandated to report sexual exploitation: “depicting a child in, or knowingly developing, duplicating, printing or exchanging film, videotape, negative or slide in which a child is engaged in obscene sexual conduct”. Failure to report is a misdemeanor, and admittedly, some of the language of this legislation seems anachronistic. Now observe the language of AB1775: sexual exploitation includes “downloading, streaming, or accessing (accessing?), through any electronic or digital media, a film, photograph, videotape, video recording, negative or slide, or slide in which a child is engaged in an act of obscene sexual conduct.” This bill was signed by Governor Brown and filed on 8/22/2014.

Bear in mind that the law defines a child as someone under the age of 18, and given the language of the law (“accessing through any electronic or digital media”), therapists will now have to report to authorities teens who send naked pictures to each other over their cell phones, or someone exhibiting an “obscene” picture of a minor on Facebook. Also, porn use that depicts teenagers (not preteens) constitutes child porn, according to the law.

And if you think this might be a good thing, let me now elucidate other problems, including elements that pertain to this blog’s title: after an individual is reported and later arrested–their computer and other hardware materials confiscated–they would begin an adjudication process that would likely result in a referral to counseling, with a provider who is certified in sex offender-specific treatment, as presided over by a government entity called The California Sex Offender Management Board (or CASOMB). Such a referral is a requirement for those who will likely have to register as sex offenders. Therefore, if a therapist reports an individual for engaging in sexual exploitation, as defined by AB1775, and he or she is not a certified sex offender treatment provider, a court has the authority to remove the client from the therapist’s care, thus disrupting not only therapeutic continuity, but also that therapeutic bond. Now a certified CASOMB provider (BTW: this takes a while), I write from experience on this matter.

Finally, recall the term  ‘imminent harm’ from earlier “duty to warn” provisions. This language pertains to the concept of protecting from harm versus reporting past events. So, we now have a social reality wherein someone can report raping or murdering a stranger, and the therapist is not required to report the event because the event is past tense. Indeed, he or she would be  compelled to maintain confidentiality. Meanwhile, if someone reports viewing a singular image of a minor, of something that could be construed as obscene, the listening therapist is required to alert police. Absurd.

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