Tag Archives: child abuse

AB1775 goes to the Supreme Court


I thought it was done. You might have thought I was done writing about it, at least. I thought the battle of AB1775, a droplet in the public consciousness, was over, and that our side had lost.

Our side is comprised of therapists, mostly, and a few of our clients. Everyone else—police, politicians, parents’ groups, the public at large, I guess—thought it a piece of legislation that was long overdue. Ever since 1980, when the original Child Abuse and Neglect Act (CANRA) was passed, everyone seemed to think it common sense and only too right that creators and distributors of child pornography ought to be prosecuted, and not only prosecuted, but outed by psychotherapists who hear of these pornographers’ behaviors in their offices.

Then something interesting happened. Thirty plus years later someone noticed that users, or viewers of child pornography were not being reported. Or, therapists weren’t sure if they ought to report these people, because the Civil Code didn’t stipulate as such. So, here’s what happened: A lawyer or two for the California Association of Marriage and Family Therapists (CAMFT) decided to write a law (AB1775) with the help of law enforcement, and send it to the California legislature for a rubber stamp. The law inserted the words “streaming”, “download”, and “viewing” into a section outlining criteria for reporting child exploitation. The law was indeed rubbed stamped—a 72 to zero vote. Most of CAMFT’s thirty thousand-deep membership learned of the bill’s existence a month prior to its passing, in a newsletter release pertaining to legislation CAMFT was supporting.

The law went into effect Jan 1st, 2015, but before long it was being challenged in court by, among others, my friend and colleague, Don Matthews, in a law suit aimed at Kamala Harris, then the attorney general of California. The plaintiffs asserted that child porn users in general do not perpetrate ‘hands on’ or direct contact offenses; that those who voluntarily (a crucial point here) seek therapy do so because they want to stop the behavior and are thus seeking help. The plaintiffs’ case in Matthews v. Harris (there are two other therapists on the suit) was struck down in Superior court, and again in appeal, leading many to think that AB1775 was here to stay. But this week we have news that the California Supreme Court has decided to review the case once again. I hope they will consider the case differently than previous judges have.

Here’s a review of opinion: Superior Court judge Michael Stern upheld the law, finding that no constitutional right to use child porn existed, and that viewers of child porn can have no reasonable expectation of privacy, given their (likely) awareness that such behavior is socially unacceptable and criminal. Court of appeals judge Roger Bern echoed that possession is not a right and added that requiring therapists to report possession is not significantly different from requiring therapists to report those who create child porn. Judges further contend that reports to authorities may block the proliferation of child porn, and finally, that just because child porn users haven’t directly harmed children in the past doesn’t mean they won’t in the future.

Well, where to start. Firstly, it’s frustrating that judges would predicate their assessment of therapists’ obligations on whether a client or patient’s disclosures are of criminal behavior, the criminality of which is presumably understood. How is it possible that no one has explained that there are numerous crimes, including heinous ones like murder, that therapists are NOT legally obliged to report to authorities if the disclosures pertain to past events? Therefore, the criminality itself, known or otherwise, of a disclosure, is clearly NOT sufficient grounds for a confidentiality violation, and never has been.

Well, what about children? Isn’t the salient factor in the disclosures targeted by AB1775 the harm aimed at this protected class of citizen?

Yes. However, there are two problems with this “shouldn’t protecting children be our top priority” argument. The first is my own idiosyncratic (perhaps) bias: if we were to persecute everyone whose consumption of products enabled the exploitation of children, then we’d be exposing large sections of our internationally-reaching consumer society. To isolate one industry is not judicious discrimination; it is scapegoating, and (especially with respect to teen pornography) staggeringly hypocritical. The second problem concerns something else that is little considered: that lawyers and clerics, two occupational classes that hear their fair share of child porn disclosures, are exempt from the requirement to report child abuse, including child porn use. Lawyers simply do not appear on the Civil Code’s list of mandated reporters. Priests and other clerics do appear on this list, but are exempted from reporting through the loophole of code 11166 (c) if disclosures are made within a “penitential communication” (i.e.: a confessional)

So much for “shouldn’t protecting children be our top priority”

Next, if we think reports to authorities will block the proliferation of child porn, can we check that supposition given that the law has now been in effect for two and a half years? I’ve made some effort personally in this area, calling child protective services offices, plus an internet crimes task force based within the San Jose Police Department. My efforts have not yielded results. Officials have either not returned my calls, or not known the answer to my questions, or they have passed my questions on to other officials, who also do not answer my calls. No one seems able to even estimate how many reports have been made of child porn use in the last two years, whether in response to the new legislation or not. Also, with respect to blocking proliferation, how does that work if, like most of the electronica we purchase, the child porn is being produced and disseminated from overseas? Has California’s law dented the child porn industries of Thailand or Russia in any way that is discernible?

Finally, with respect to Judge Bern’s last point, since when do we persecute people on the basis of what they might do? If you get picked up by police for committing a relatively minor crime, are subsequent punishments justified because they seek to prevent a presumed escalation of criminal behavior?

Wait. The voices of immigrants, people of color–two classes of people that are slightly more popular than users of child porn–are suddenly in my head. Of course we persecute people on the basis of what they might do.


Graeme Daniels, MFT

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Longing to matter


End of the year. These are the shortest days as time tumbles towards the new year, and in that compressed space it seems time to add a parting note or two about my last novel, Venus Looks Down On A Prairie Vole. Written mostly in 2015, published in the shortest days of last year, I now feel it slipping from my mind, no longer living a constant, parallel life in my head. I imagine many writers, the successful and the (like me) unsuccessful, are like this. We are fickle. We skipped well upon rocks over water when kids, and are prone to moving on in certain areas of our lives, losing interest before others do, assuming that interest is there in the first place.

For myself, of the various intermingling themes in Venus, freedom and loneliness linger with the most purpose. From the outset of the novel, the freedom of therapist Daniel Pierce is not a happy one. Estranged from his son, and grieving over the death of his wife, he plods through a daily task which reflects a more mundane aspect of his isolation: he struggles to communicate with a representative of an insurance company, seeking to get paid for his services. Intended to satirize the managed care industry, this exchange is bookended at story’s end, and lives in light juxtaposition with the novel’s more serious plot. Yet it highlights an unpleasant side of Pierce’s outsider role, one in which complaints go unheard; acknowledgement, and sometimes reward, is delayed, or withheld indefinitely. The result is helplessness: a sense that he is alone, vulnerable, and—treated as dispensable by a governing machine—fated to lose.

The idea was to set him up (and the reader) for a winning comeback. Daniel Pierce, a stand-in for mental health professionals who are underpaid, who are poorly represented by their associations; for whom laws (like AB1775) are written without their proper consultation, gets to be difficult. He gets to show an arrogant if well-meaning interventionist that he won’t enact hers or mainstream society’s notions of heroism. He gets to show lawyers, even a judge, that he won’t be at their beckon call, and further, that he won’t betray the principles of his profession just because they think there is a greater cause. For anyone who might listen, he (like myself), will expose hypocrisy, tautologies, and—despite the will of a legal and professional system—fashion his own ending.

It’s a fantasy, of course. Side note: I enjoyed a documentary about Alfred Hitchcock recently in which Martin Scorsese enthused about Vertigo, one of my favorite films. He loved the way the film indulged fantasy, dodging that which is plausible for the sake of compelling drama. Amen, I say. And so, Venus is a statement of my fantasy: a longing to matter when isolated and (at least sometimes) unheard. The story is ironic for me in so far as I am largely happy in my relatively isolated, private practice. Yes, I have the occasional problem with managed care, but in Venus I put a little on it for the sake of compelling drama. And yes, I have been subpoenaed and otherwise called upon to break the confidentiality of clients by an importuning authority, but I have not grandstanded as Daniel Pierce does.

The story is ironic for Daniel Pierce in so far as he isn’t necessarily sympathetic to his wrongdoing client. His default advocacy for a man accused of molesting his child is a serendipitous event, and Pierce defends the privacy of their session (the professional one, plus those which symbolically take place away from the confines of an acceptable setting) not because he thinks the man innocent, but rather because he’s concerned with principle: preserving the confidentiality of the therapeutic space, for everyone. If you think that a precious or overreaching cause, especially in the context of child abuse, then consider what I’ve previously written in entries like “Why child abuse isn’t as important as you think”. Why are psychotherapists mandated reporters of child abuse while lawyers and clergy (in effect) are not? Is it because our service isn’t dovetailing with legal rights? Is it because we are secular in our mission?

To address a secondary theme, Pierce isn’t necessarily sympathetic to his misbehaving client base. Though not nearly as hateful as Lira, his women and children’s advocate antagonist, Pierce is often jaded by the sex offending or sexually addictive men that he sits with. Many of them are indeed entitled, or misogynistic, or plainly self-centered, while others are less offensively lost—underdogs of another kind. In some respects, Daniel is like most therapists: trying to be neutral, but nonetheless stumbling into an advocate’s role at times, holding different sides of individuals, including that which is objectionable. As weary with them as he is any oppressive system, Daniel weighs his dedication to those wayward men against a sometimes-I-wonder-why-I-bother-with-you attitude.

I have bothered considerably with the ideas contained with Venus Looks Down On A Prairie Vole. I have, I think, one more aspect, or pair of ideas, to explain. Then it will be time to move on to another story, and perhaps another cause. On to lengthier days.

Graeme Daniels, MFT



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The old scripts of Daniel Pierce


“We met on consecutive days, Aaron and me. I detailed events, spilling out everything I could think of, remember, while he filtered the present through the past. Did I mention that my mom left my dad when I was thirteen because she found out he wasn’t a prairie vole? Didn’t I? Well, Aaron did. He does that: remembers things like a bucket sat beneath my mind”

—a passage from Venus Looks Down On A Prairie Vole, about an exchange between a protagonist and his confidante therapist.

Self identities—strategies of being in relationship—are often fixed and rigid. Quantum phenomena collapses time.

Daniel Pierce is a psychologist burdened by a question of ethics. A man in his practice—a man whom Pierce has seen once in a professional capacity—has possibly committed a horrible crime against a child. Or, the man is the subject of a cynical fabrication designed to leverage a judgment in a custody battle. Through serendipity, Pierce re-connects with this man, though not in the course of his day-to-day work, but rather, ironically, in the midst of his own troubles. They meet in a halfway house, as peers in addiction and mental illness, and through that meeting, Pierce hears a fuller yet still uncertain story.

In being a listener, a helper, Pierce filters what he hears though his own prejudices and back-story, as we all do. Along the way, he is influenced by a reformed prostitute, and now strident advocate of abused women and children. What is Daniel Pierce’s old script? He was a lonely kid, separated by strangeness, a habit of talking, sometimes singing to himself. Today he might have been diagnosed with ADHD, or tagged as being on the continuum of autistic disorders. His mother, now languishing with Alzheimer’s, once doted upon Daniel, admiring his childlike charm, the ‘twinkle’ in his eye that few others saw. She perhaps coddled him. Daniel’s present-day forgetfulness is half an organic condition suggestive of alcoholism, and half an implicit bond with this now absent figure.

Daniel’s father manifests the Oedipal failure: a man disgraced by his infidelities, he epitomizes the fallen, weak male reviled by the likes of Lira, Daniel’s antagonist and misandrist pursuer. Daniel had stayed closer to his now late father over time—physically, at least. Though his father’s caretaker in his final years, Daniel had always been different: most notably, a monogamist to his recently deceased wife, another doting figure. Unlike his father, he is a Prairie Vole: respectfully distant from other women. Still, his aloneness is a cost, leading him to practice dubious boundaries, as a therapist and as a storyteller. His crossing-the-fourth-wall sidebars (an example above), are intended to convey his isolation, his need to be understood. The story of Venus is based loosely on real events concerning child abuse, the knotty issue of child custody warfare; of mandated reporting requirements for psychotherapists; of confidentiality. Try to understand. Before you need someone someday to listen before blowing whistles, try to understand.


Graeme Daniels, MFT



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Why child abuse isn’t as important as you think


When I appeared on the Bill Carroll radio show last year (an LA broadcast), I did so a day after Melissa Melendez appeared. Melissa Melendez is the state legislator who authored the controversial AB1775 child abuse law that is now close to two years old, and which I and some others have been criticizing since its passage in the summer of 2014. At that time, Melendez boasted on her website that she was “cracking down on child porn” with this law. BTW: for those who don’t know the process, “author” means she fronted the bill. It was written by others—lawyers, specifically—lawyers for the California Association of Marriage and Family Therapists, or CAMFT.

I have gleaned from my attempts to dialogue with these lawyers that they did consult with some therapists and social workers prior to writing the bill. I don’t know how many. I imagine them canvasing the wide and diverse opinion of—ahem—San Diego County (where the CAMFT offices are located), homing in on its clique of conversion therapy advocates and thinking, ah…we have found the like-minded!

Like minded in the sense that psychotherapy is deemed by these folks a tool of advocates, of social change, rather than something complex and unaffiliated with policing or justice. Well, you might ask, isn’t the protection of children from pornographers and other abusers a worthy cause? Isn’t the prevention of child abuse via the reporting of criminals something we should support?

Well, since you put it like that, then yes.

However, when you apply logic, the experience of real clinicians, flaws in this ideal leap out. Do criminals enter psychotherapy, looking to change? If they do, do you imagine that upon hearing a psychotherapist’s reporting requirements in the area of child abuse (which we’re required to provide—it’s called informed consent), an as-yet undiscovered child abuser would then say, “well, since we’re on that subject…”

When criminals are mandated into therapy by courts, or as a condition of probation or parole, they might report behaviors that merit our reporting of them, but at that point, if they are speaking of past behaviors, the matter is moot. And if the completion of probation or parole hinges upon NOT engaging in further illegal behavior, why would they further disclose their illegal acts?

The premise of psychotherapy, for those who apparently need this explaining, is among other things to provide a place, a “safe” place as we like to say, for the disclosure of all kinds of secrets, including many heinous crimes. Do you want to know what’s reportable under the law? Basically, anything really dangerous that might happen; meaning, it hasn’t happened yet. Do you want to know an example of something that ISN’T reportable? A murder committed in the past. Unless it was a child that was killed. Seriously.

With rare exception, people don’t enter therapy to boast or even speak casually of abusing or exploiting children, or the enabling of child abuse via the viewing of child porn. They do enter therapy disturbed by such behaviors, wanting to understand what leads them to such things; hoping to learn how to diminish if not eliminate those tendencies. Now, reporting laws can facilitate change in cases of ordinary child abuse (hitting, or verbal abuse), because those interventions leverage important conversations with parents, who thereafter can learn anger management skills, as well as process unresolved problems. However, reporting requirements like those set forth by AB1775 undermine a therapeutic process, because those reported for using illegal porn use are typically arrested, jailed, fired from their jobs, ostracized from family and friends—all of which tends not to encourage further talking with therapists.

I said all this to Bill Carroll, the partially persuaded conservative radio host of a year ago. But what are you saying? He half-complained. Is your office like a confessional?

Funny he should ask that. Shame that I didn’t have time to contradict something Melissa Melendez had said the day before. See, during her appearance, Carroll asked if priests are also mandated reporters of child abuse. At first, she didn’t know, so he gave her a commercial break to look it up. When she returned she quickly offered that priests ARE mandated reporters, and then her segment ended.

Though a sideline to the main issue, this piece of misinformation is the climactic point of this blog entry. In fact, priests (or clergy) ARE NOT mandated reporters of child abuse—at least not if you read the loophole provided for them in California Civil Code 11166 (d), which offers that if disclosures of abuse are heard in the context of a “penitential communication”, then the subdivision (requirement to report) does not apply. Civil Code 11165.7 outlines what professionals are mandated reporters of child abuse. Wanna know who else is not on the list? That’s right: lawyers. For good reasons, you might think; at least, reasons implicitly more important than the protection of children from child abusers.

Two weeks ago, I wrote the office of Melissa Melendez, asking if she’ll revisit the issue of AB1775 in 2017, perhaps get someone to craft an amendment to section 11166 (d), close that loophole for clergy. Neither she nor a member of her staff has responded to me yet. I’m not holding my breath. I wonder if she’d consult with priests on this matter, or contact officials within the Catholic Church, to challenge the sanctity of their offices, compel them to be advocates, not mere listeners. I hear they’re a bigger organization than the California Association of Marriage and Family Therapists. They have lawyers too, don’t they?


Graeme Daniels, MFT






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The bourgeois hypocrisy

Lira hissed through her teeth—a disappointing, face-contorting habit, I wanted to say but didn’t.  “That’s irrelevant. Men are the ones that buy porn. The consumer is the oppressor.”

I paused, studied her face for a credulous moment, and thought politics, the global order. “Do you own a cell phone?” I asked. I knew she did having watched her scroll through it several times, but she didn’t answer, instead giving me an I’m-thinking-of-your-next-move look. “Ever think about who assembles those things and what wages they make?”

She rolled her eyes, said, “Here we go,” as if knowing my path.

“What would you say if I said that all your electronics purchases are made on the back of unfair labor practices in the developing world; that your cosmetics are made possible because of animal cruelty?”

She gave me a lazy-eyed stare. “Apples and oranges,” she replied.

I paused. “Really? That’s your rebuttal, a tired fruit metaphor?”

“You’re changing the subject.”

“It’s not a subject. It’s called context.”

“Context my ass. It’s a specious argument, Dr. Pierce, You’re saying the average consumer has as much culpability as a sex offender. That’s bullshit. No one would buy that argument.”

“Not in this society, maybe, but only because people here are hypocrites. The consumer is the oppressor, you said.”

It’s a shame that talk moves quickly sometimes, because I wanted to patronize her saying ‘specious’, which sounded impressive, like something a law professor would say—maybe that guy from the bar, I considered. Actually, I didn’t want to patronize Lira. I just wanted to argue some more.

–passage from  Venus Looks Down On A Prairie Vole

Maybe it’s the rhetoric of certain politicians currently reminding me of the polity’s gullibility, but I can’t let this go: one of the reasons AB1775 passed so easily through the California legislature was the notion that users of child porn enable child pornographers. Assuming you haven’t read my twenty or so other blog essays on that subject, let me remind that AB1775 is a 2015 law that re-writes the California civil code relating to child abuse reporting, apparently for the first time in 35 years, after the original Child Abuse and Neglect Reporting Act overlooked the issue of child porn, I guess. The new law allows–no, compels–mental health professionals to report to police clients/patients who view child pornography. Specifically, it mandates reporting with respect to that which depicts the sexual conduct of a minor (as in anyone under the age 18) over an electronic or digital medium. Genius. Now we have to violate confidentiality when teens sext one another.

The other pretext for this law was/is the unsubstantiated claim that such a measure will “crack down on child porn”. In other words, it will crack down on child porn to report to police individuals who, in the context of a psychotherapy session, talk about their child porn use, or e-mail pictures of their junk to their partners. For some this law will lead to humiliating discussions with unctuous adults who will educate about how to respect self and others. Boys will be schooled on how to respect girls’ bodies. Girls will be schooled on how to respect girls’ bodies. Some might criticize the circular nature of decision-makers’ interventions. Decision-makers will blink in confusion because they won’t know what circular reasoning is.

For others (men, basically), the law will lead to their arrests, their job losses, their ostracism from society, the sudden loss of custodial rights with respect to their children; the convenient awarding of full custody to another likely informant, the other parent. In case you think these are good things (and you probably do), one other likely outcome is that such individuals, following the adjudication of their cases, will be mandated into mental health treatment (this is hilarious!) wherein–it is presumed–they will honestly disclose further their history of child porn affinity and commit themselves to healing, trusting fully the confidentiality of the psychotherapeutic space.

This law will have no effect on the sociopaths who produce and distribute child pornography, any more than a generation of arresting pot smokers has won the drug war. People like me won’t be reporting such people to police because…how should I say this…THEY DON’T GO INTO THERAPY, IDIOTS!

For all the politicians who voted for this bill; for the lawyers who wrote it having consulted with maybe two therapists in San Diego County who also believe in things like conversion therapy for gay people; for the right wing politician who fronted (“authored”) the bill, declaring it would “crack down on porn”, scoring cheap points with an illiterate constituency determined to scapegoat society’s sexual miscreants because it doesn’t understand real social issues; and for all of you who enable poverty and economic exploitation in developing economies everyday of your lives with your electronics hoarding, drooling consumerist habits, I have the following message:


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Venus and AB1775


In August 2014, the California legislature passed bill AB1775, a law that redefines sexual exploitation for the purpose of mandated reporting guidelines. For the first time since the codification of child abuse reporting law in the early 1980s, the consuming of a product (such as the accessing or downloading of illegal pornography) must be reported by mental health professionals and other mandated reporters to authorities. For many in the field of mental health, this bill constitutes a threat to therapist-patient confidentiality, a bedrock principle in the treatment of mental health disorders. The bill was written by child advocacy groups in coordination with California police departments, and was promoted as “cracking down on child porn and child abuse” by assembly woman Melissa Melendez, though it was written by lawyers for the California Association of Marriage and Family Therapists, whose 30,000 deep membership mostly learned of the bill just weeks prior to its passing.

This controversial law serves as a real life backdrop to my novel, Venus Looks Down On A Prairie Vole, a first person narrative about an alcoholic, widowed psychologist named Daniel Pierce who takes an impromptu hiatus from his practice, only to be stalked by a former prostitute and lawyer who wants information about and his intervention with a recent patient of his whom she says has perpetrated a child molestation. Pierce resists intervening or giving information, citing patient-therapist privilege, though he is intrigued by the woman’s ardent appeal, for professional and personal reasons: attracted to her, he is nonetheless unmoved by her insistence that he break the confidentiality of his patient as he finds her pretexts grounded more in prejudice than in substance. Aware of his patient’s substance abuse, predilection for prostitutes, and compulsive use of pornography, he doesn’t dismiss the possibility that a crime against a child has occurred, but he resists reporting information that will likely prejudice police, a criminal or family court, or a jury. Unknowingly dodging subpoenas, Pierce retreats to a sober living house to examine his grief, his conscience; even his role in society. However, in the small world of 12-step recovery, he meets the patient who is the object of so much fear and suspicion. The impromptu hiatus becomes an impromptu therapy between two men, neither of whom is a shining example of mental health.

The novel is a dramatic expression of social concern: about the role of the psychotherapist in society, which is a subset of society’s broader desire for heroes, sometimes at the expense of reason; about the need for privacy such that effective mental health treatment can transpire; about the relationship between pornography and sexual abuse; about the influence of feminism upon sexual mores, the process of family courts. As a psychotherapist who works with self-proclaimed sex addicts, state-identified sex offenders, I observe a degree of cynicism on all sides: within the minds of the offenders, or addicts, but also within the schemes of their critics and persecutors. In one sense, it’s no surprise that Daniel Pierce is a burn-out case. His personal drama illustrates what has previously fascinated readers of Irvin Yalom’s novels, or viewers of the HBO drama, In Treatment: that mental health professionals are also flawed, and vulnerable to addictions, if not anti-social behaviors. I think this unknown facet of the mental health professional intrigues members the public. As my protagonist states, they want “in the room” of psychotherapy, to find out what’s being said and done.

Sprinkled within this heavy drama is an equally heavy dose of satire. While excoriating the state’s intrusion upon mine and others’ professional space, I also poke fun at a few segments of society: at the subcultures of pornography and 12-step recovery in particular. Meanwhile, my text lampoons the social engineering that occurs in advertising, via the themes of TV commercials; the products that line the shelves of retail. I write with mischief about contemporary issues that subtly divide men and women, teasing feminists and paternalists alike. This commentary is intended as comic provocation, but is not comic relief or gratuitous soapboxing. These themes are the subtext of my protagonist’s alienation.

The result is a melancholic, if sometimes flippant (some say arrogant) story that is typical of my style. I’ve written four novels prior to this one, but despite better reviews for previous efforts, I think this novel my best. I like repeated themes, inside jokes, and metaphor that stirs the imagination of the reader. I like anti-heroes, difficult people who are not easy to understand, because real people are not easy to understand. Venus Looks Down On A Prairie is an obscure title, no doubt—but no more so than Catcher In The Rye or even Fifty Shades Of Grey—and its meaning should not elude an attentive, curious reader, whom I intend to engage in the deepest possible way.

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Talkin’ about it



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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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Statement To The Recruits

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.

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New Changes to Child Abuse Reporting Law

Graeme Daniels, MFT 

            In August of 2014, the California legislature passed bill AB1775, which stipulates important changes to the Child Abuse Reporting Act, and was apparently sanctioned by CAMFT(and conveyed to CAMFT membership the same month), despite objections by the National Association of Social Workers, which reasonably argues that AB1775 will stymie therapeutic disclosures and hamper child abuse prevention efforts. This law went into effect on January 1st of 2015. Ostensibly, AB1775 calls for all mandated reporters to report instances of child pornography to authorities, social services or police. Legislative author and state assembly woman Melissa Melendez, who authored the bill (it was actually written by lawyers for CAMFT–The California Association of Marriage and Family Therapists in concert with law enforcement and child advocacy groups), pledges to crack down on child pornography, though the impact of the law is likely more far reaching.

To explain: pre-existing law dating back to 1980 (the once Child Abuse and Neglect Reporting Act, or CANRA law) stipulates that mandated reporters alert authorities to sexual exploitation, material that depicts minors engaging in obscene sexual conduct, through the mediums of film, videotape, negative or slide. The language of AB1775 is updated as followed: “sexual exploitation includes downloading, streaming, or accessing through any electronic or digital media, material in which a child is engaged in an act of obscene sexual conduct.” Meanwhile, Penal code 11165, subsection 311.4 defines obscene sexual conduct as, among other things, “exhibition of the genitals for the purpose of sexual stimulation of the viewer”, as well as lewd and lascivious acts, which are further defined in subsection  288.2 as that which depicts touching intimate parts of the body, including “buttocks of a person and the breasts of a female” (subdivision d). The law further removes the need to observe an “identifiable victim”, as is typically required by social service investigators. Thus, the idea is not to protect victims per se, but rather to capture those who view obscene material, and engage therapists as informants. **But if you work with adolescents in particular, note the word minor (meaning under age 18), the reference to “electronic or digital media” (i.e.: cell phones and computers), and the language of the penal codes, and understand why sexting, for example, is now reportable under the law.

Of course, the issue is bigger than that. A person who discloses to you that he or she looks at teen or preteen pornography, who is perhaps seeking help, afraid they might hurt minors more directly, must be reported to Child and Family Services, who will likely defer to law enforcement investigation due to lack of identifiable victims. As an experienced sex addiction/offender therapist, let me describe the likely fallout: arrest, incarceration, loss of job, estrangement from peers, family, possibly lifelong registry on a public sex offender list. Next, because sex offender treatment is under the exclusive authority of The California Sex Offender Management Board (CASOMB), which certifies providers, YOU WILL LOSE CLIENTS that you report if you’re not certified. Finally, for those who recall the CAMFT Bylaws debacle of 2013, observe that once again CAMFT has co-signed an initiative that will bind its vast membership without actively engaging that membership in the process. Don’t be taken for granted! Discover research by Dr. Karl Hanson, whose work distinguishes child pornography users from child predators (versus conflating them), become educated as to the implications of this short-sighted legislation, and learn through the website, www.stopAB1775.org, how we can block it.

Graeme Daniels, MFT

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