In a recent statement to the membership of the California Marriage and Family Therapist Association (CAMFT), association lead counsel Cathy Atkins issued guidelines for members regarding the controversial new law AB1775. It’s an interesting report featuring answers to questions posed by members, numerous interpretations of intent, none of them explicated in the Penal code, but leaving therapists and other mandated reporters (not to mention our clients) still wading in ambiguous waters.
* Firstly, it’s good to read a (sort of) acknowledgement that AB1775 is much more than a legal addendum designed to keep us all in touch with advancing technology. It is in effect a re-definition of sexual exploitation, to include the viewing of child porn (CP) alongside a pre-existing definition that was previously confined to its production and distribution.
*Cathy’s guidelines addresses what I’ve called the conflation of child porn viewing into a definition of sexual exploitation by pointing out that the words “downloading” and “accessing” could be interpreted as meaning the exchanging of files, and so the additional language is designed to reinforce the original Child Abuse and Neglect Reporting Act ( CANRA) laws. She suggests that police will not investigate the mere “downloading” or “streaming” of child porn, and implies that law enforcement will take into account a therapist’s opinion as to whether CP use is “stumbled upon”, whether there are “factors to be weighed” (such as a spouse’s contrary characterization of CP use), or whether CP use will lead to direct harm of a child. In short, she suggests that therapists will have discretion in their reporting and that social services/police will take into account our opinions about our clients, but warns that said discretion will not protect us from liability, or even prosecution.
*Hmm? Do we accept this explanation? I’m dubious, obviously. Firstly, I think it likely that police will think that therapists who dispute potential direct harm to children are merely advocating for their clients; that police will not think the viewing of porn is “accidental” simply because we think it is (and wouldn’t such reports be a nuisance?); that police will think the viewing entails (or has entailed) exchanging by virtue of the aforementioned technological advances/nuances related to the internet, and will thus have a pretext for investigation, plus the ensuing legal fall-out, leading to disruption of existing therapeutic episodes, not to mention child abuse prevention efforts, via the hegemony of the CASOMB system (an issue not referenced by Cathy), as I have described in previous messages to the CAMFT e-tree. So much for therapist discretion, I think.
*Also, I think police are likely to agree with the 2012 US attorney general’s opinion that viewing CP alone does indeed constitute exploitation because the viewer is judged to be aware of the abuse depicted in the CP. And since a therapist becomes aware through client disclosure, then that knowledge of the abuse in turn triggers the obligation to report. The logic here is as follows: we are witness to someone who has witnessed abuse, and because we don’t know the victim we report the witness. Next, Cathy warns that if a therapist is aware that a client has accessed pornography, fails to report that use, and the client later abuses a child, then the therapist may be held criminally responsible for the failed report of possession (or viewing, I guess). BTW: unless a solid correlation exists between use of pornography and direct contact child abuse, then this argument validates the use of prejudice as tantamount to reasonable suspicion–another form of conflation. Otherwise, we should be making Tarasoff reports (pertaining to reports of threats made against others) if our clients report owning copies of American Psycho. More topically, perhaps, are we to infer risk to others if clients are enamored with 50 Shades Of Grey? This law, or the interpretation of it, thus strikes at the heart of the “imminent risk” principle of exception (of when to break confidentiality), so central to an understanding of the original CANRA laws. Oblivious, AB1775 supporters promote an inference (which belies current research, actually): that viewing of porn will lead to child abuse, or might; and that “might” is sufficient to trigger a process that will leave those tentatively disclosing clients wondering what, if anything, they will ever again share with a therapist.
* So it seems like glibness to assuage members that all will be worked out, and that AB1775 “does not affect the standard of intent of the CANRA statute” . We are not investigators, Cathy reminds us. But we are encouraged to do due diligence to protect children which, as the tautological thinking unfolds, invariably connects the viewing of porn with actual harm to a child. The bill’s author, Melissa Melendez, and others, want police making the distinctions between the accidental users, the regular users, and those relative few who will use CP and also directly harm children. Not the lawyers at CAMFT. Not the researchers. Not any mental health professionals. Not us.
We are the recruited.