Monthly Archives: August 2015

Sex, lies, and penal codes

So a drift back from passivity might begin with something like this: “Have you heard of the next thing in child abuse, this AB 832?” Sleepily, I reply, “No, is that a Melendez bill?”

“Nah–someone name Garcia.”

I shrug. “What of it. What’s it about?”

“Child abuse”

“Yeah, got that. Can you be more specific?”

“I thought you might know about it, since you’ve been caught up with that other law, AB1775”

“So you don’t really know anything about AB 832?”

“No,” my colleague replies forlornly. There is a pause between us, an awkward waiting. “I think this discussion’s hit a wall, don’t you think?” I remark playfully. Not that it wouldn’t hit a wall anyway. Such are the somnolent beginnings of dissent in the public sphere, across coffee tables and in between cubicles; in between sessions. Elsewhere, I picture a quiet, pine-enveloped room, filled with the soft buzz of ‘live’ microphones, with radio voices speaking collegially, passing laws that make perfect sense when spoken about in this way. This is the legislative realm. The subtext of AB 832, a bill that removes mandated reporting requirements for consensual sexual behavior between minors, is two-fold: first, it more or less acknowledges the normalcy of teens having sex; secondly, it tempers language that has long implied a homophobic edge to the existing Child Abuse and Neglect Reporting Act (CANRA), which casts acts such as oral copulation and sodomy as tantamount to sexual assault. Assembly women Garcia and Eggman (the authors–both Democrats) want minors of similar age (teens, I assume), gay or straight, left alone to pursue voluntary sexual behavior; to maybe talk about sex with teachers and counselors; to not be bullied, and most specifically, to not be reported to authorities when they are having sex voluntarily, unless one party is over the age of 21 and the other is under 16.

Well, clearly they haven’t reached across the aisle and coordinated their efforts with the AB1775 supporters. Don’t they realize that talking to police can be as therapeutic as talking to any counselor or social worker? As Garcia and Eggman peruse their worthy new text of California penal code 11165.1, subdivision (a), what might they make of subdivision (3), I wonder, which is situated just twenty lines south of their progressively amended words?

In it lies the controversial language of bill AB1775, authored (in legislative terms, that means written by someone else while a politician’s name is attached) by Republican Melissa Melendez last year, which added to penal code 11165.1 the infamous words “downloads, streams, accesses, through any electronic or digital media, or exchanges (other mediums indicated) in which a child is engaged in obscene sexual conduct” (which is defined in several other penal codes beginning with the numbers 311). This is the language that now defines sexual exploitation, which, like sexual assault, is a subset of sexual abuse, which is subject to mandated reporting by those who are guilty of a misdemeanor if they don’t report such behavior. BTW: in those other penal code sections, it’s clear that a child (alternately termed a ‘minor’) is anyone under the age of 18, and that obscene sexual conduct includes the aforementioned ‘voluntary’ behaviors. No where is it stipulated that behaviors must be coerced in order to constitute obscene sexual conduct.

So…wait. If I understand this right, we are now proposing that it’s okay for kids to have sex with each other (all of the major sex acts I’m aware of fall under the definition of ‘obscene sexual conduct’) unless one of them is over 21 and the other is less than 16. Meaning, as therapists we wouldn’t have to report this to the police if AB 832 went into effect. That’s nice. Seriously, it would be good if we didn’t have to narc on kids getting it on, or out gay or straight teens that engage in oral copulation or sodomy. However, if upon having sex or behaving sexually in any way, one such kid takes a picture of the act and later “sends’ or ‘accesses’ said picture, we would then require the ‘discretion’ of police, to whom we must report that latter behavior, to address said child’s sexual behavior and ensure that abuse has not occurred.

Seriously? Who is observing this absurdity, taking note as the zeitgeist of one social cause passes another moving in the other direction. Where is the corpus callosum of our society, assuring that our right and left brains communicate versus split, as manifest by our detached political mirrors. What am I saying? you ask. Here it is: as the cultural right keeps fighting for teenage abstinence, or to extinguish gay sexuality, it ups its game with respect to sexual exploitation, looking to widen the scope of persecution because it needs new scapegoats, the less fashionably sympathetic (I mean heterosexual males, of course). In doing so it squeezes the law into an illogical corner–caught somewhere in between the ‘free love’ left and the ‘protect children’ right .

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Radio Times

Got a phone call last Monday morning. A woman saying she was a producer for KFI Talk Radio in Los Angeles asked if I’d be interested in going on the Bill Carroll Show an hour later.

“Uh, I’m on my way to work,” I said dully, half thinking this was a crank call. Days earlier I’d been quoted in an LA Times story about AB1775, the controversial child porn law that I’ve skewered so much on this blog it’s become my own kind of abuse victim. Following this media exposure, invites to talk shows were at least plausible, but if you were a self-published author suffering junk solicitation on a weekly basis, you’d be a little skeptical too. So given the short notice, I was a little indignant and a whole lotta skeptical. Still, I asked my wife to check out the show to which I’d been invited to see if it was legit, and indeed it was. In fact, it was so legit that it featured Melissa Melendez, the assembly woman who sponsored AB1775, in cozy discussion with host Bill Carroll, a Howard Stern-lite type who on the Monday show seemed sympathetic to Melendez’ bill, and fairly skeptical of what therapists do, especially with anyone who looks at child porn.

I sent that producer a snarky e-mail later in the day. Fuming at the one-sidedness of the day’s show, and further annoyed at gratuitous digs at my profession, I asked if Melendez was also given an hour’s notice before appearing—turns out she was. Anyway, the producer called back saying I could appear the next day during the same time slot, and rebut what I’d called the “anti-therapist drivel”. So, I was going to be on the radio. Specifically, I’d be on a station billed as the most popular in Southern California. I’d be on with Bill Carroll, talking about AB1775. It was on, I thought, sitting nervously in my home office, on hold with my cell phone pinned to my cheek. I was introduced as a therapist upset with the new law, and even more upset at being given short notice to appear the day before. Before uttering a word, I was set up as a self important clinician, clueless as to how the rough and tumble world of radio works. Bill Carroll warned me that if I spent time arguing about my precious need for adequate notice, I’d miss my chance to excoriate AB1775. I pictured my colleague Don Mathews, a plaintiff in the case seeking injunction against the bill, upon telling him I’d had a chance to make our case to God knows how many listeners, but squandered it railing against the media’s disregard of a professional’s time.

“I’m over that. Let’s talk about the law,” I said, like I was inviting a fellow gunslinger to draw. Moments later, I was deflecting Bill Carroll’s first ill-considered question, instead complaining that Melissa Melendez and others had misrepresented the issue. You see, they keep saying that because child porn is illegal, the new law is simply ‘clarifying’ matters related to reporting requirements, or updating language because of the internet phenomenon. Therefore, the law simply asks therapists to perform what has always been their duty.

Wrong. Or bollocks, as my nephew likes to say.

I pointed out to Carroll that this explanation doesn’t make sense. If the existing Child Abuse and Neglect Report Act stipulated that therapists and other mandated reporters reveal to authorities those who view child porn, then why was it necessary to ‘clarify’ this for supposedly confused mental health professionals, and thus re-write the law with the excuse that advances in technology had enabled more users? If viewing child porn—in addition to producing and distributing child porn—is and was understood as sexual exploitation, then what difference does it make to that understanding how many more people are able to do it? Are we to believe that some therapists started hearing words like “download”, or “streaming”, and became confused as to whether this constitutes watching child porn? No. What happened was this: some people noticed that the pre-existing law, which is over thirty years old, did not stipulate that viewing child porn is reportable by therapists. Thus, they sought a change, one that would sneak in behind a technological cover, a conflation of child porn use into existing abuse definitions.

The lawyers promoting AB1775 obfuscate on this point, repeatedly complaining that child porn use has always been illegal, and thus reportable. But illegal and reportable are not interchangeable concepts, as some appear to think, and lawyers in particular should know better. If therapists reported everything said to them that is illegal (and the list of things illegal but not reportable might shock you), we’d be little more than glorified informants for a police state. Does it not seem like common sense to point out that the most anti-social elements of our society don’t choose to enter psychotherapy, and even if they did—or were ordered into therapy—would they not simply avoid telling therapists about their child porn use if they knew such information would be passed on to police?* Lawyers. If this law sticks, lawyers may be the only ones left talking to child porn users–that is, advising them not to share their truths with therapists.

So I read out the new law on the air, which, as I promised, took about a minute of the radio show’s precious time. I pointed to the spot in the California penal code—section 11165—wherein the new deed was done: the words, “downloading, streaming, accessing, though any electronic or digital media, material that depicts minors engaged in obscene sexual conduct” (FYI: the latter term is defined rigorously elsewhere in the penal code) were inserted into a subsection of the code defining sexual exploitation, thus altering it from a matter of production and distribution, to include the more commonplace act of viewing. I then pointed out to Bill Carroll that the language of the law also implicated “sexting”, which is often practiced by teens (minors), over electronic or digital media (computers and cell phones), displaying their so-called junk (examples of obscene sexual conduct). Carroll was at first evasive, saying he didn’t think teens would bring this matter to therapy.

“I disagree,” I said. “Teens go to therapy. They talk about sexting, and because of how this law is written, therapists will have to report them to police.” The argument scored a hit with the host, and Carroll finished the show calling for a ‘tweaking’ of AB1775, thus, in effect, rebuking Ms. Melendez, who had earlier stated she was not interested in making changes. The show continued, with Carroll challenging my thoughts as to whether sex offenders could be treated at all; about whether they could be treated by circumventing the facts of their child porn use, by talking about feelings relating to porn use instead (surely not the intent of the prosecutorial AB1775 supporters). To his credit, Carroll seemed like he was trying to see things from a therapist’s point of view, which was refreshing given the previous day’s rhetoric. For the last five minutes, Don Mathews joined the show, demonstrating the flexibility of which Carroll had boasted, and spoke more pointedly about AB1775 harming instead of protecting children. Time ran out. Regrettably, I missed rebuking Ms. Melendez’ semi-informed assertion that priests and other clergy are also mandated reporters—this was partly in response to Carroll’s stated wish to punish those who fail to report if thereafter a child abuse instance or pattern occurs. Actually, neither he nor Melendez were aware that penal code 11166 allows for an important exception for the clergy: if they hear of child abuse in the context of ‘penitential communication’ (i.e.: confession) they actually don’t have to report child abuse.

Would assembly woman Melendez sponsor a bill that rewrites—excuse me, ‘clarifies’—that subsection?

* one more thing to clarify: as a point of law, a therapist must tell a patient of potential benefits, risks, and alternatives involved in any treatment procedure (this includes legal exceptions to the basic confidentiality rule).

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