Mathews v. Harris

• Decision Date: 09 January 2017
• Docket Number: B265990
• Citation: 7 Cal.App.5th 334,212 Cal.Rptr.3d 547
• Court: California Court of Appeals Court of Appeals
• Parties: Don L. MATHEWS et al., Plaintiffs and Appellants, v. Kamala D. HARRIS, as Attorney General, etc., et al., Defendants and Respondents.

7 Cal.App.5th 334

212 Cal.Rptr.3d 547

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

v.Kamala D. HARRIS, as Attorney General, etc., et al., Defendants and Respondents.

B265990

Court of Appeal, Second District, Division 2, California.

Filed January 9, 2017

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

Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Marc A. LeForestier and S. Michele Inan, Deputy Attorneys General, for Defendant and Respondent Kamala Harris, as Attorney General, etc.

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

BOREN, P.J.

The Child Abuse and Neglect Reporting Act (CANRA) requires certain individuals, including family therapists and clinical counselors, to report to law enforcement or child welfare agencies patients who disclose that they have developed, downloaded, streamed, or accessed child pornography through electronic or digital media. (Pen. Code, § 11164 et seq. )¹ Plaintiffs are mandated reporters. They assert that CANRA violates their patients' constitutional right to privacy. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 1.)

CANRA withstands plaintiffs' challenge. The privacy interest of patients who communicate that they watch child pornography is outweighed by the state's interest in identifying and protecting sexually abused children. There is no fundamental right at issue in this case, and CANRA satisfies the rational basis test for determining the validity of a legislative enactment. The trial court properly dismissed the complaint.

THE PARTIES

Plaintiff William Owen is a certified alcohol and drug counselor who works with sex addicts as a counselor and intake director at treatment programs. Plaintiffs Don Mathews and Michael Alvarez are licensed marriage and family therapists. Mathews is founder and director of Impulse Treatment Center, the largest outpatient treatment center for sexual compulsion/addiction in the United States. Alvarez has a private practice specializing in addictions, including sexual addiction. Plaintiffs claim standing as California taxpayers seeking to prevent unlawful expenditures of taxpayer funds.

Defendant Kamala D. Harris, Attorney General of California (AG), enforces CANRA; maintains the Child Abuse Central Index (CACI), a statewide databank of child abuse reports; and disseminates information from the databank to government agencies and law enforcement authorities. (§§ 11165.9, 11166.3, 111170.) Defendant Jackie Lacey, District Attorney for the County of Los Angeles (DA), is responsible for prosecuting a therapist or counselor who fails to report as child abuse the viewing or downloading of child pornography by a patient. (§ 11166, subd. (c).)

THE COMPLAINT

The Legislature amended CANRA in 2014, in Assembly Bill 1775 (AB 1775). On February 20, 2015, shortly after the law took effect, plaintiffs filed a complaint seeking declaratory relief based on alleged constitutional violations. They request an injunction to prevent the enforcement of AB 1775.

Plaintiffs brought suit because CANRA creates an exception to the patient-psychotherapist privilege by including licensed psychologists and therapists as "mandated reporters" who are compelled to disclose known or suspected child abuse to law enforcement authorities. A mandated reporter who fails to do so is subject to criminal penalties and license suspension or revocation.

Plaintiffs Mathews and Alvarez have treated numerous patients for sexual addiction, compulsivity and other sexual disorders, who admit downloading and viewing child pornography on the Internet. Based on their training and experience, plaintiffs do not believe those patients present a serious danger of engaging in "hands-on" sexual abuse or exploitation of children or the distribution of child pornography: they typically have no criminal history, have never expressed a sexual preference for children, and voluntarily participate in psychotherapy to treat their disorder, which often involves compulsive viewing of all kinds on the Internet.

Mathews and Alvarez have also treated patients for sexual attraction to children (including pedophilia), who admit to downloading and viewing child pornography. Plaintiffs do not believe that this group presents a serious danger of engaging in "hands-on" sexual abuse or exploitation of children or the active distribution of child pornography to others. "These patients typically have no prior criminal record or history of ‘hands-on’ sexual abuse of children, no access to children in their home or employment, no history of ‘hands-on’ sexual abuse or exploitation of children, and often express disgust and shame about their sexual attraction to children for which they are actively and voluntarily seeking psychotherapy treatment."

The complaint states, "Plaintiffs' clinical experience that many of their patients have admitted downloading or viewing child pornography during therapy for sexual disorders, but do not present a serious danger of ‘hands-on’ sexual abuse of children, correlates with the wide and easy availability of such illegal images on the Internet." Plaintiffs cite psychiatric reports and journals, and a 2012 report to Congress from the United States Sentencing Commission, to support their claim that there is no empirical evidence that a patient viewing child pornography actually engages in "hands-on" sexual abuse or exploitation of children.

The complaint alleges that statements made to Mathews and Alvarez during treatment are confidential and privileged, falling under the right of privacy guaranteed by the California Constitution. Plaintiffs also identify a "fundamental privacy right in nondisclosure of personal medical information" as a personal liberty guaranteed by the federal Constitution. If compelled to report patients who admit to downloading or viewing child pornography on the Internet, even if the patients present no serious danger of reportable "hands-on" sexual abuse or exploitation of children, plaintiffs and other California psychotherapists will be complicit in violating patients' constitutional rights, or risk a criminal misdemeanor conviction and the revocation of their licenses.

Plaintiffs allege that AB 1775 will destroy patient trust that communications made during therapy will be kept confidential, induce patients to cease therapy, make them unlikely to disclose intimate details needed to provide effective therapy, or deter existing or potential patients with serious sexual disorders from obtaining therapy at all. Apart from allegedly violating the privacy rights of adult patients who view child pornography, the statute allegedly impinges on the rights of minor patients who view sexually explicit "sexting selfies" by another minor over a cell phone.

Given the international scale of Internet pornography, plaintiffs allege that state authorities will not be able to identify and protect victims residing in California. CANRA's reporting requirement does not extend to child abuse victims outside of California's territorial jurisdiction. Thus, plaintiffs assert, California citizens' right to privacy should not be curtailed based on the extremely slim possibility that state authorities can identify California victims, as opposed to children subjected to sexual abuse somewhere in the world.

Plaintiffs allege that CANRA is generally limited to mandated reporting of "hands-on" or "contact" sexual abuse and sexual exploitation of children. AB 1775 does not substantially further CANRA's purpose because a patient's viewing of child pornography does not constitute evidence that the patient has engaged in "hands-on" abuse or exploitation of children. Any indirect emotional harm to a child (perhaps now an adult) unknown to the viewer does not fall within CANRA's definition of child abuse.

Plaintiffs allege that AB 1775 transforms CANRA's mandated reporting scheme to identify and protect child abuse victims "into a prophylactic vehicle to identify patients who may pose a potential danger of engaging in ‘hands-on’ sexual abuse of children because they have viewed child pornography." CANRA does not mandate reporting of possible danger. Rather, CANRA requires that a mandated reporter have knowledge of or observe a child whom the reporter knows or reasonably suspects is the victim of child abuse or neglect. No reliable empirical evidence supports a belief that child pornography viewers present a serious danger of engaging in "hands-on" sexual abuse of children in the absence of other risk factors.

THE DEMURRERS

The AG filed a demurrer to the complaint, arguing that the purpose of AB 1775 is to help law enforcement identify abused children by requiring therapists to report patients who download, stream or electronically access child pornography. This duty does not violate state constitutional privacy rights under Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill ), which requires a legally protected privacy interest, a reasonable expectation of privacy in the circumstances, and a serious invasion of privacy. Patients have no reasonable expectation of privacy in communications to therapists or counselors about accessing child pornography, and the state has a countervailing interest in identifying and protecting children from sexual exploitation by consumers of child pornography as well as those who are involved in its production.

The AG argued that any difficulty in identifying children within or outside California does not require a different result because the Legislature exercised its judgment that identification of some children is sufficient. Section 11170, subdivision (d) authorizes the disclosure of information in CACI to out-of-state authorities to assist in identifying as many of the abused children as possible.

The AG further argued that...