Tag Archives: child pornography

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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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 tautological nature of decision-makers’ interventions. Decision-makers will blink in confusion because they won’t know what a tautology 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 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:

YOU ARE ALL…

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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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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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