Tag Archives: child abuse

January 10, 2015 · 8:01 pm

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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November 2, 2014 · 11:56 pm

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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October 13, 2014 · 7:28 am

A Child Abuse Law That Won’t Work (Part Two)

Which brings us to the matter of AB 1775, a new state law which will go into effect in January 2015, which will compel psychotherapists and other mandated reporters of child abuse, to report to police or social services individuals who view child pornography, which is defined as images depicting minors’ sexuality (therefore including teens sending nude pictures). Those who wrote this bill did so in consultation with law enforcement officials such as the Sheriff’s association, and child advocacy groups, not psychotherapists or other similar professionals who are trained to listen to disclosures of disturbing personal information and to facilitate interventions. Most therapists in California became familiar with the bill just three months ago, just one month prior to the bill’s signing by governor Brown, through the California Association for Marriage and Family Therapists (CAMFT), which sanctioned the bill with little or no information provided to the membership, and with only short notice as to the bill’s significance.

A statement by the bill’s author: “AB 1775 will further ensure the protection of children from the proliferation of sexual exploitation through internet child pornography. The State Legislature has a duty to ensure it does everything within its power to make certain the most vulnerable of our society, our children, are protected.” Given the demagogic politics of this language, it’s going to be almost impossible to have this law amended, much less have it repealed. Proponents needn’t even substantiate the claim that children will be protected by this legislation, though one might think that some within the ranks might question how this will work. After all, has making drugs illegal protected kids from drug abuse? Are mass arrests of pot smokers and crackheads exposing a trail of clues leading authorities to drug cartels, thus protecting society from the deadly scourge of addiction? How’s that plan coming along? Meanwhile, how many more reports to social services agencies will be generated by this law? Is the funding and thus the staffing there to field all these new reports? How many of these reports will lead to fuller investigations, arrests and incarcerations? And if these aren’t necessarily the intended consequences, then how many therapeutic alliances (between clients and therapists) will be unnecessarily disrupted–a fragile trust destroyed–by a therapist’s informant duties?

A colleague within CAMFT, a man interested in solutions more so than argument, has proposed a compromise: a plan to keep the overall rule with respect to AB 1775 in place but to advocate for mental health professionals to be an exception to the mandatory disclosure. The bill currently includes a huge list of mandated reporters, including such non-qualified persons as coaches, probation officers, “head start” teachers–people not trained to address or treat mental health conditions. I can sympathize with the argument that if these people discover that someone is viewing child pornography then their best course of action may be to report the event to social services. However, one could make the argument that the best thing for offenders is to talk to a mental health professional in the hope of obtaining early intervention before someone is hurt more directly. **BTW: this argument does not imply that child subjects in pornography are not victims (as in “hurt”), merely that such damage is not inflicted directly by those viewing the images.

And if you want to have the conversation about such viewers enabling child pornographers/exploiters of children, thus deserving any punishment they might receive, then we must have consistent intellectual honesty and talk about how our entire consumer economy exists on the back of unfair labor practices across the world. If you’re not sure what I’m getting at then get out your precious new I-phone 6, contemplate its manufacturing and assembly of parts, imagine the wages earned by those responsible, and consider trading jobs with the adults and children that are performing that work.

Regarding amendments and AB 1775, it probably won’t matter what gets proposed. As CAMFT (committing, perhaps, its own version of political suicide) has implied through its action, involved discussion is moot and inexpedient. Fifty years ago, legislators wanted private exchanges revealed such that communists could be pulled from their closets. Ten years ago the Patriot Act extended its tentacles into the therapist’s office, mandating professionals to report those suspected of terrorist acts. There will always be a core of people in society who will fundamentally resist the confidentiality of institutions, religious or secular. As therapists, we know that the media, that the NSA, that parents, Apple and AT&T, all want in the room so they can hear, direct, and sell. They want in so they can do everything except really listen, actually.

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October 9, 2014 · 6:29 pm

A Child Abuse Law That Won’t Work (Part One)

By now many readers will be familiar with the controversy surrounding actor Stephen Collins, whose divorcing wife surreptitiously taped a couples therapy session in which Collins confesses to the past molestation of an 11 year old girl. While some (mostly professionals) are disturbed by the violation of confidentiality issue, most of the trolling comments in social media seem biased towards the end that justifies the means: the outing of a child sexual abuser.

The cacophony of wrongness is so loud that I wonder if there’s room for a thoughtful, informed breakdown of the issues. As a psychotherapist, I’ve come across many situations wherein child abuse (sexual and not) is suspected, and I’ve further worked with sex offenders who are mandated through the legal system to seek counseling. There are misconceptions about the treatment of these cases, one of which surrounds the reporting requirements of the mental health professional. For example, in the case of Collins’ alleged victim, many have wondered why the therapist in question didn’t report Collins’ confession to either the police or a social services agency, as would have been his or her prerogative. But not necessarily an obligation. It’s unclear from the story if the 11 year old in question is still a minor, and in such cases where the alleged victim is an adult at the point of disclosure, the therapist actually has discretion under the law. He or she must actually determine if an ongoing risk to a child is present, and then make a report.

What happens next? Well, in ordinary abuse cases, an investigation happens, possibly followed by arrest or a suspension of custody or contact rights for the alleged abuser: a disruptive, frightening, if sometimes necessary experience for everyone involved, especially children and parents. The matter of the therapist’s report is generally private–meaning, a matter between therapist and client. If the person who is reported is disgruntled with the therapist for making the report, he or she can fire that person or work through the conflict and continue the therapy. This is not the case with respect to child sexual abuse, or with respect to sex offenses that do not involve children. As many are aware, those who are convicted of sexual offenses are placed upon a public registry, and their designation as sexual offenders is lifelong. (BTW: the list of what constitutes a sexual offense is long and varied, and if you think teens sending ‘selfies’ are exempt, think again). If directed to counseling in California, an individual must find a therapist credentialed by a government body called the California Sex Offender Management Board (CASOMB), which provides guidelines for the treatment of sex offenders–guidelines that compromise bedrock principles of psychotherapy, especially those pertaining to confidentiality.

So, if a therapist reports a client for child sexual abuse and has not chosen to credential (no small task, actually) with CASOMB, their work with the person they’ve reported will soon be over. This is not the case with respect to all other mandated report situations–a truism not understood by many therapists. CASOMB compels treatment guidelines involving regular reports to CASOMB-partnered officials, following a premise echoed on social media: that pedophiles are not treatable. This is the kind glib drivel that has been asserted about several diagnostic or assessment categories in the past, including addictions, borderline personality, and schizophrenia–assertions that have since been debunked. What the reader should understand is that research into “what is effective” mental health treatment is often shallow, unconvincing, and contaminated by the interests of the insurance and pharmaceutical industries, not to mention providers offering competing models of care. How do you know if a treatment approach for, say, ADHD, is demonstrably effective? Because a study by university X conducted 3-6 months after a treatment protocol is applied to sample of subjects indicates a significant “reduction” of problem behaviors, as defined by the study. Note the time frame and the word reduction. These criteria are central to research into conditions like depression, anxiety, ADHD, behaviors like substance abuse. Now consider child sexual abuse, so-called pedophilia: would you, the apparent consumer of mental health research, be satisfied with such short-term time frames of study? Would you satisfied to hear that a child abuser’s behavior has “reduced”.

My point is not to inflame the passions of those brandishing pitchforks and torches, ready of lynch sex offenders, or throw them in jail and throw away the key–yada, yada, yada. My point is to rebuke the casual invoking of research to sell an arbitrary standard of care. In part two of this article, I will further an argument for the importance of confidentiality in mental health treatment, and protest against those ignorant legislators and self-appointed advocates who are unknowingly working against their own cause.

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