7 Cal. App. 5th 334
Cal. Ct. App.2017Background
- In 2014 the Legislature amended CANRA (AB 1775) to expand "sexual exploitation" to include downloading, streaming, or accessing child pornography via electronic/digital media, making psychotherapists and certain counselors mandated reporters.
- Plaintiffs (two licensed marriage and family therapists and a certified addiction counselor) treat patients who admit viewing/downloading child pornography; they sued seeking declaratory and injunctive relief contending AB 1775 violates patient privacy under the California and U.S. Constitutions.
- Plaintiffs allege disclosures to therapists are privileged and that mandatory reporting will chill therapy, is not tailored to identifying "hands‑on" abusers, and is ineffective given the global scope of the Internet.
- Defendants (Attorney General and LA District Attorney) argued CANRA’s amendment furthers the State’s compelling interest in identifying and protecting sexually exploited children, and CANRA already excepts such disclosures from the psychotherapist privilege.
- The trial court sustained demurrers without leave to amend and dismissed; the Court of Appeal affirmed, holding plaintiffs failed to allege a protected privacy interest or a reasonable expectation of privacy and that the statute survives rational‑basis review under federal law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AB 1775 infringes California constitutional privacy protections for psychotherapist‑patient communications | AB 1775 forces disclosure of privileged, highly sensitive medical information and chills therapy; a compelling interest is required to override privilege | CANRA expressly excepts child‑abuse reports from the psychotherapist privilege; protecting children justifies disclosure | No protected privacy interest implicated; privilege excepted by CANRA and disclosure is justified — claim fails under Hill framework |
| Whether patients have a reasonable expectation of privacy when admitting possession/viewing of child pornography during therapy | Patients reasonably expect confidentiality, especially when admitting past crimes in therapy | Possession/viewing of child pornography is criminal and socially abhorred; mandated reporters are foreseeable | No reasonable expectation of privacy as a matter of law given criminality and statutory reporting duties |
| Whether AB 1775 violates the U.S. Constitution (informational/federal privacy) | Federal due process/privary jurisprudence recognizes nondisclosure of medical information as fundamental so strict scrutiny applies | Federal courts have not recognized a constitutionally rooted psychotherapist privilege; at most rational‑basis review applies and the statute is rationally related to protecting children | No federal constitutional violation; rational basis supports AB 1775 if federal privacy right assumed |
| Whether AB 1775 is unconstitutionally overbroad or invalid as applied to "sexting" minors | The statute sweeps in consensual minor sexting and intrudes on minors’ privacy and therapeutic relationships | Legislature can investigate potential coercion/exploitation; agencies have discretion; Planned Parenthood is limited | No as‑applied showing; plaintiffs did not demonstrate the statute is invalid for sexting minors under existing precedent |
Key Cases Cited
- Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (California Supreme Court) (state privacy test: protected interest, reasonable expectation, serious invasion)
- Whalen v. Roe, 429 U.S. 589 (U.S. Supreme Court) (assumed informational privacy interests; police‑power balancing)
- Osborne v. Ohio, 495 U.S. 103 (U.S. Supreme Court) (states may proscribe possession/viewing of child pornography)
- New York v. Ferber, 458 U.S. 747 (U.S. Supreme Court) (compelling state interest in protecting children from sexual exploitation)
- Jaffee v. Redmond, 518 U.S. 1 (U.S. Supreme Court) (recognition of federal psychotherapist privilege in evidentiary context)
- Luera v. People, 86 Cal.App.4th 513 (California Court of Appeal) (possession/viewing of child pornography not a vital privacy interest)
- Stritzinger v. Superior Court, 34 Cal.3d 505 (California Supreme Court) (CANRA reporting obligation takes precedence over psychotherapist privilege)
- Gonzales v. Superior Court, 56 Cal.4th 353 (California Supreme Court) (scope of federal informational privacy and limits of psychotherapist privilege)
- Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (California Supreme Court) (public peril can outweigh confidentiality)
- Lifschutz v. Superior Court, 2 Cal.3d 415 (California Supreme Court) (psychotherapist privilege and its exceptions)
- Scull v. Superior Court, 206 Cal.App.3d 784 (California Court of Appeal) (limits on compelled disclosure where victims are not sources of future danger)
- Planned Parenthood Affiliates v. Van de Kamp, 181 Cal.App.3d 245 (California Court of Appeal) (narrow ruling on voluntary sexual activity among minors)
- In re Grant, 58 Cal.4th 469 (California Supreme Court) (discussion of harms from child pornography and state interest)