Imagine a lead-up to the case of Harris, as in Kamala, representing the state of California, v. Mathews, Alvarez, and Owen: a case at least five years in the making; a case delayed multiple times because witnesses weren’t available at short notice, because one of the attorneys for either side became ill; because the judge in the case decided to go on vacation–who knows? And if you weren’t there for the projected week-long trial that became a day-and-a-half trial and ended abruptly, you won’t recognize so readily the elements outlined in this speculative dialogue. You might not know that a ten year old law that mandated changes to child abuse reporting law based on now 45 year old legislation had gotten bounced around between courts since 2019–officially remanded by the California Supreme court in 2020 with the decree that the state must demonstrate, via a trial, that the 2015 amendment to the 1980 Child Abuse and Neglect Reporting Act (CANRA) advances the cause of that earlier legislation. So, conjure two principals from the state attorney general’s office (I’ll call them A and B), chatting on the eve of the trial with one of them fretting yet plotting over what may happen:
A: So, a person does something that harms children, indirectly. They look at child porn. I know. I’m supposed to call it CSAM, child sexual abuse material. Whatever. But it does harm them directly, someone says–one of our witnesses: “It’s not a victimless crime”
B: Well, it isn’t
A: Question is, is that relevant? I can hear the other side, possibly the judge: “Oh, well then we must identify, locate, and then protect the victimized child, following those questions that appear on suspected child abuse report forms. And if this change to the law will achieve that, then okay”. Well, the thing is it won’t as far as we know, but it will stop the subject of the report from continuing the behavior.
B: And presumably deter however many others there are doing this behavior
A: No, that’s been increasing in a big way actually, not decreasing–what both our side and theirs call an “explosion” of CSAM on the internet.
B: So why’s that happening, the explosion?
A: It’s the technology…ya know, the growth of the internet, the sophisticated ways in which images can be stored and hidden
B: The internet? Not people’s desire to do the behavior, look at child porn?
A: Yes, but the technology has made it easier to find the images; meanwhile, the number of images are incredible so it’s hard to track them all. People who weren’t previously inclined to do this kind of thing can now. Or, the same number of people are doing it, roughly, but are able to do it more, gather ever more images, because of the technology. We’re not sure.
B: You mean despite us having this now ten year old reporting law to deter people. So, why have the law?
A: Well, the idea was that having the law, plus the amendment, would help us capture child porn users, not just those who produce, sell, or distribute–that was what the law previously said. But capturing porn users was never the purpose of the law–protecting children is–so we have to spin it that way somehow
B: I see. The plaintiffs will argue that there are more commonplace and more effective ways to capture child porn users, like acting on tips from the public, or by going through google, for example
A: Yes, and states do get thousands of tips per year from the public about child porn users, countless more than we get from psychotherapists reporting on their patients. Not sure about compelling google to violate privacy of their users, getting them to report, and of course they’d have tons more money to fight us in court than three therapists from California plus a pro bono lawyer.
B: Okay, well if we do capture them, the child porn users–let’s say we get better at that, or that more therapists report their patients to us–then what? Remind me, are we talking misdemeanors or felonies?
A: Depends on how much child porn they’ve been viewing or downloading. If it’s not so bad we can send ’em back to therapy, only we–meaning the state–would be in charge of the therapy at that point. Basically, we’d presume they’d lie about their behavior so we’d regularly use polygraphs to verify their disclosures.
B: So what if they tell the truth about more use of child porn?
A: Well, then they’d be in violation, which would lead to a custodial sentence probably. Or, if they lie about child abuse and they fail a polygraph, then the same result would follow
B: And if they’re not continuing to use child porn and they pass a polygraph, then what do they talk about in therapy?
A: I don’t know. Whatever else they talk about in therapy. They get reminded to not use child porn, I guess. Our expert witnesses don’t say much about that.
B: And what about the plaintiff witnesses. What might they say?
A: Well, they’ve just got the one, this forensic psychologist who says, or relays studies that say that breaches of confidentiality are damaging therapy efforts, that child porn users aren’t that dangerous to children in a direct way, according to research. Much of that testimony will be redundant since their attorney can get most of that info out of our witnesses in cross examination. Then, their witness might talk about what else happens in therapy, or what motivates child porn users, like medicating anxiety states, sexual traumas–theirs, not those of the children in the…ya know.
B: What will you ask him in the cross examination?
A: Actually, our best chance is if he doesn’t show, so I have an idea. Remember, the Supreme Court back in 2020 put it on us, the state, to show that the 2015 amendment to CANRA protects children, otherwise the limiting of confidentiality rights may be deemed unconstitutional. So, we’re in trouble here: we can’t show that therapist reports are even happening on this matter, let alone that they’re leading to rescues. We got an expert witness who says that child porn use directly harms children so it shouldn’t matter that we can’t locate victims via therapist reports, but that argument’s about increasing arrests, convictions, and mandated treatment, which isn’t the point of the reporting law. So, we need a get out of jail card and I think it’s in this “no more delays” decree that the judge ordered last month. If we finish up Tuesday afternoon because we limit to a bare minimum our questions for our witnesses–which their side won’t expect–we’ll rest our case and the judge will turn to them. Their attorney says their witness is coming on Thursday, which means he’ll have to ask for a continuance, which the judge will deny. Then, we object that we’re denied a chance to cross examine, so the witness testimony should be struck from the record. And, because he’s their only witness, we’ll move to dismiss, saying they’re not presenting a case, even though they will have asked most of the questions at that point. So…why are you smiling?
B: It’s ingenious
Graeme Daniels Psychewriter 