Mathews v. Becerra

• Decision Date: 26 December 2019
• Docket Number: S240156
• Citation: 455 P.3d 277,257 Cal.Rptr.3d 2,8 Cal.5th 756
• Court: California Supreme Court
• Parties: Don L. MATHEWS et al., Plaintiffs and Appellants, v. Xavier BECERRA, as Attorney General, etc., et al., Defendants and Respondents.

8 Cal.5th 756

455 P.3d 277

257 Cal.Rptr.3d 2

Don L. MATHEWS et al., Plaintiffs and Appellants,

v.Xavier BECERRA, as Attorney General, etc., et al., Defendants and Respondents.

S240156

Supreme Court of California.

December 26, 2019

Nelson Hardiman, Mark S. Hardiman, Los Angeles, and Salvatore Zimmitti for Plaintiffs and Appellants.

Arnold & Porter Kaye Scholer, Trenton H. Norris, San Francisco, and Oscar Ramallo, Los Angeles, for Scholars as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael J. Mongan and Edward C. DuMont, State Solicitors General, Aimee Feinberg, Deputy State Solicitor General, Thomas S. Patterson and Douglas J. Woods, Assistant Attorneys General, Paul Stein, Marc A. LeForestier and S. Michele Inan, Deputy Attorneys General, Max Carter-Oberstone, Associate Deputy State Solicitor General, for Defendant and Respondent Xavier Becerra, as Attorney General.

Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall, Los Angeles, and Maria Z. Markova, Santa Ana, for Defendant and Respondent Jackie Lacey, as District Attorney.

Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport, San Marino, for California Medical Association, California Dental Association and California Hospital Association as Amici Curiae.

Opinion of the Court by Liu, J.

The Child Abuse and Neglect Reporting Act is a comprehensive statute designed to protect children from abuse and neglect. ( Pen. Code, § 11164 et seq. ; all undesignated statutory references are to this code.) The statute designates a list of "mandated reporters" who have an affirmative duty to make a report to law enforcement or an appropriate child protective agency "whenever the mandated reporter, in the mandated reporter’s professional capacity or within the scope of the mandated reporter’s employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect." (§ 11166, subd. (a); see § 11165.7.) Failure to fulfill this duty is a misdemeanor and may result in the suspension or revocation of a professional license. (§ 11166, subd. (c); Bus. & Prof. Code, § 4982, subd. (w).) Mandated reporters include psychiatrists, psychologists, marriage and family therapists, clinical social workers, professional clinical counselors, alcohol and drug counselors, and other health professionals. (§ 11165.7, subd. (a)(21), (38).)

The term " ‘child abuse or neglect’ " in the reporting statute includes "sexual abuse as defined in Section 11165.1." (§ 11165.6.) Section 11165.1, in turn, defines sexual abuse to include " ‘sexual exploitation.’ " (§ 11165.1, subd. (c).) In 2014, the Legislature expanded the definition of sexual exploitation in the reporting statute to cover any person who knowingly "downloads," "streams," or electronically "accesses" child pornography. (§ 11165.1, subd. (c)(3), as amended by Stats. 2014, ch. 264, § 1 (hereafter section 11165.1(c)(3)).)

The plaintiffs in this case are two licensed marriage and family therapists and one certified alcohol and drug counselor with significant experience treating patients with sexual disorders, addictions, and compulsions. According to the complaint, plaintiffs’ patients include many persons who, during the course of voluntary psychotherapy, have admitted to downloading or electronically viewing child pornography but who, in plaintiffs’ professional judgment, do not present a serious risk of sexual contact with children. Plaintiffs contend that the basic norm of confidentiality protected by the psychotherapist-patient privilege applies to such admissions and that the 2014 amendment to section 11165.1(c)(3), which requires plaintiffs to report such patients to law enforcement and child welfare authorities, violates their patients’ right to privacy under article I, section 1 of the California Constitution and the Fourteenth Amendment of the United States Constitution. The Attorney General and the Los Angeles County District Attorney (collectively, defendants) filed demurrers, contending that plaintiffs had failed to establish a valid privacy claim under either the state or the federal Constitution. The trial court dismissed the complaint, and the Court of Appeal affirmed.

As the parties and all members of this court agree, the proliferation of child pornography on the Internet is an urgent problem of national and international dimension. By some estimates, there were reports of over 45 million online photos and videos depicting child pornography in 2018 alone, which represents a greater than 45-fold increase over the past decade. (Keller & Dance, The Internet Is Overrun With Images of Child Sexual Abuse. What Went Wrong? , N.Y. Times (Sept. 28, 2019); see Paroline v. United States (2014) 572 U.S. 434, 440, 134 S.Ct. 1710, 188 L.Ed.2d 714 ( Paroline ) ["Because child pornography is now traded with ease on the Internet, ‘the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, has grown exponentially.’ "].) Technology has amplified the devastating nature and magnitude of child pornography, resulting in harms to children that are incalculably severe and enduring. ( In re Grant (2014) 58 Cal.4th 469, 477–478, 167 Cal.Rptr.3d 401, 317 P.3d 612 ( Grant ).)

Culpability for this abuse lies not only with the producers of child pornography but also with its consumers, who drive demand and perpetuate the victimization with every viewing. (See Grant , supra , 58 Cal.4th at pp. 477–478, 167 Cal.Rptr.3d 401, 317 P.3d 612 ; Paroline , supra , 572 U.S. at pp. 440–441, 457, 134 S.Ct. 1710.) In California, knowing possession or control of child pornography is a crime (§ 311.11), and such conduct itself implicates no cognizable privacy interest. The narrow question here is whether mandatory reporting of patients who admit to possessing or viewing child pornography in the course of voluntary psychotherapy to treat sexual disorders implicates a cognizable privacy interest.

The posture in which this question arises is crucial to its resolution: This case is before us on demurrer, which means the parties have not yet introduced any evidence bearing on the question presented. " ‘ "When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action." ’ " ( Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010, 209 Cal.Rptr.3d 280, 382 P.3d 1116 ( Centinela ).) In making this determination, we must accept the facts pleaded as true and give the complaint a reasonable interpretation. ( Ibid. )

Applying this standard of review, we hold that plaintiffs have asserted a cognizable privacy interest under the California Constitution and that their complaint survives demurrer. Our holding does not mean the reporting requirement is unconstitutional; it means only that the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward. We reverse the Court of Appeal’s judgment and remand for further proceedings to determine whether the statute’s purpose of protecting children is actually advanced by mandatory reporting of psychotherapy patients who admit to possessing or viewing child pornography.

Our dissenting colleagues assert that "plaintiffs are unlikely to establish on remand that Assembly Bill 1775 does not substantively further its intended purpose." (Dis. opn., post , 257 Cal.Rptr.3d at p. 39, 455 P.3d at p. 308.) To be sure, surviving demurrer is no assurance of success on the merits once evidence is developed and considered. But we see no basis to prejudge what the evidence will show. In the absence of an evidentiary record, we express no view on the ultimate validity of the 2014 amendment to section 11165.1(c)(3) or plaintiffs’ likelihood of success.

To be clear, the privacy interest we recognize here attaches to a patient’s disclosures during voluntary psychotherapy, not to the patient’s underlying conduct. There is no right to privacy that protects knowing possession or viewing of child pornography online or through any other medium. Further, we do not hold that patients’ communications with their therapists are protected when the therapist believes the patient has committed hands-on sexual abuse or poses a threat of doing so. All statutory exceptions to the psychotherapist-patient privilege, including the dangerous patient exception ( Evid. Code, § 1024 ), still apply. Finally, because plaintiffs may proceed on their state constitutional claim, we have no need to reach plaintiffs’ privacy claim under the federal Constitution.

I.

The reporting statute was originally enacted in 1980 as the Child Abuse Reporting Act. (Stats. 1980, ch. 1071, §§ 1–5.) In 1987, the Legislature renamed it the Child Abuse and Neglect Reporting Act (CANRA). (Stats. 1987, ch. 1459.) As noted, CANRA requires mandated reporters to report incidents of suspected "child abuse or neglect" (§ 11166, subd. (a)), a term that includes "sexual abuse" (§ 11165.6), which in turn includes " ‘sexual exploitation’ " (§ 11165.1(c)). From 1987 to 2014, CANRA defined "sexual exploitation" to apply to "[a]ny person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct," with exceptions for law enforcement and other persons not relevant here. (Former § 11165.1, subd. (c)(3), as enacted by Stats. 1987, ch. 1459, § 5, p. 5518.)

In 2014, the Legislature passed Assembly Bill No. 1775 (2013–2014 Reg. Sess.) (Assembly Bill 1775), which expanded CANRA’s definition of " ‘sexual exploitation’ " so that it now applies to "[a] person who depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media , or...