People v. Cavaiani
| Decision Date | 16 December 1988 |
| Docket Number | Docket No. 101942 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Alfred CAVAIANI, also known as Lambert Cavaiani, Defendant-Appellee. 172 Mich.App. 706, 432 N.W.2d 409 |
| Court | Court of Appeal of Michigan — District of US |
[172 MICHAPP 707] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Paul J. Fischer, Asst. Pros. Atty., for the People.
[172 MICHAPP 708] Mueckenheim & Mueckenheim, P.C., by Robert C. Mueckenheim, Detroit, for defendant-appellee.
James Gregard by Jerold Schrotenboer, Jackson, for amicus curiae Pros. Attys. Ass'n of Michigan.
Tom Downs, Lansing, for amicus curiae Michigan Society for Psychoanalytic Psychology.
Colleen V. Ronayne, Pontiac, amicus curiae Guardian ad Litem.
Before WAHLS, P.J., and HOOD, and KAUFMAN, * JJ.
We granted the people leave to appeal from the circuit court's order declaring M.C.L. Sec. 722.633(2); M.S.A. Sec. 25.248(13)(2) unconstitutional and dismissing the complaint and warrant charging that defendant failed to report an instance of suspected child abuse, a misdemeanor.
Originally charged in the 52nd District Court with failing to report as required by Sec. 3 of the Child Protection Law, M.C.L. Sec. 722.623; M.S.A. Sec. 25.248(3), defendant moved to quash the complaint and warrant on the grounds that the statute was unconstitutionally vague, overbroad, and that it violated Const.1963, art. 4, Sec. 25. After the district court denied defendant's motion, the Oakland Circuit Court granted defendant leave to appeal and reversed. In turn, this Court granted the people leave to appeal on February 11, 1988, and we reverse the order of the circuit court.
The victim's mother initiated family therapy with defendant after suspecting that her husband [172 MICHAPP 709] had sexually molested their 9-year-old daughter. Defendant, a psychologist and family therapist, rendered therapy and treatment to the victim, the victim's mother and the victim's father.
During individual therapy sessions in early 1986, the victim told defendant about recurring incidents in which her father fondled her breasts. When defendant questioned the victim's father about these allegations at a therapy session, defendant claims that the victim's father made it clear to defendant that if he had touched the victim, such touchings were completely accidental and not done for the purpose of sexual arousal or gratification.
The victim herself later reported her father's conduct to a school counselor, who reported the incident to Protective Services. A petition based on the victim's allegations of sexual abuse was filed in the probate court. Contending that defendant had reasonable cause to suspect that the victim had been molested but had failed to report the suspected child abuse as required by M.C.L. Sec. 722.623; M.S.A. Sec. 25.248(3) of the Child Protection Law, the county prosecuting attorney's office brought the disputed misdemeanor charge of failure to report, M.C.L. Sec. 722.633(2); M.S.A. Sec. 25.248(13)(2), against defendant.
Section 3 of the Child Protection Law was amended by 1984 P.A. 418, Sec. 1 to require psychologists and family therapists to report. Prior to March 29, 1985, the effective date of this amendment, practitioners such as defendant were under no statutorily imposed duty to report.
Section 13 of the Child Protection Law, M.C.L. Sec. 722.633(2); M.S.A. Sec. 25.248(13)(2), provides:
"A person required to report an instance of suspected[172 MICHAPP 711] child abuse or neglect who knowingly fails to do so is guilty of a misdemeanor."
Defendant first claims, as he did below, that the Child Protection Law, M.C.L. Sec. 722.621 et seq.; M.S.A. Sec. 25.248(1) et seq., is unconstitutionally overbroad because it violates defendant's First Amendment rights to associate in legal endeavors and invades the privacy of the family and those in association to cure private family problems. Defendant argues that there is no compelling state interest in "suspicious" behavior, whether or not the suspicion is reasonable.
Legislative enactments are cloaked with a presumption of constitutionality. Where a statutory provision would otherwise be unconstitutional, it is the Court's duty to give the statute a narrow construction so as to render it constitutional if such a construction is possible without doing violence to the Legislature's interest in enacting the statute. People v. O'Donnell, 127 Mich.App. 749, 757, 339 N.W.2d 540 (1983).
The doctrine of overbreadth is primarily applied to First Amendment cases where an overbroad statute prohibits constitutionally protected conduct. People v. McCumby, 130 Mich.App. 710, 714, 344 N.W.2d 338 (1983), lv. den. 419 Mich. 911 (1984). A successful overbreadth challenge allows a person charged with violating a statute to escape punishment based on the First Amendment right of others impinged upon by the statute although under a narrower, properly drawn statute, his own behavior could be punished because it is not so protected.
However, not every First Amendment right supports an overbreadth challenge. Woll v. Attorney General, 409 Mich. 500, 534-535, 297 N.W.2d 578 (1980). The overbreadth of a statute must not only [172 MICHAPP 712] be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep where conduct and not merely speech is involved. Broadrick v. Oklahoma, 413 U.S. 601, 614-615, 93 S.Ct. 2908, 2917-2918, 37 L.Ed.2d 830 (1973).
While Sec. 3 does not prevent a psychologist or family therapist from treating those of his patients who have engaged in child abuse, there is little doubt that it places such a patient at greater risk that her or his misconduct will be discovered and prosecution will follow. In the context of a family, Sec. 3 invades its privacy to the extent that the family members' collective desire to seek treatment for the offender and risk the continued abuse of the victim rather than initiating criminal proceedings may not be honored. However, we do not believe that this invasion constitutes a constitutionally impermissible violation of a family's First Amendment right of privacy. A family does not have a protected First Amendment right to undertake a course of action which may do little or nothing to protect the child victim from continued abuse.
The United States Supreme Court has long recognized that a state has an interest in protecting the welfare of children and in seeing that they are safeguarded from abuses which might prevent their growth into free and independent well-developed citizens. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Even assuming that the reporting requirement does invade the protected rights of defendant and his patients, the state has the constitutional power to regulate for the well-being of its children. 390 U.S. at 637-639, 88 S.Ct. at 1279-1280.
We distinguish the cases cited by defendant in support of his overbreadth argument from the issue presented here. Rather, we find this case to be analogous to Whalen v. Roe, 429 U.S. 589, 97 S.Ct.[172 MICHAPP 713] 869, 51 L.Ed.2d 64 (1977), where physicians and patients challenged the constitutionality of New York statutes requiring that the state be provided with the names and addresses of all persons obtaining certain prescription drugs. The United States Supreme Court found that the statutes did not deprive individuals of their right to seek medical advice from their physician and obtain needed medication. Accordingly, the Court held that the patient-identification requirements did not invade any of the plaintiffs' constitutional rights or liberties.
Further, a person generally lacks standing to challenge overbreadth where his own conduct is clearly within the contemplation of the statute. This is so even where there is some marginal application which might infringe on First Amendment activities. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). In...
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