Mathews v. BecerraMathews v. Becerra
The Child Abuse and Neglect Reporting Act is a comprehensive statute designed to protect children from abuse and neglect. (
The term ” ‘child abuse or neglect’ ” in the reporting statute includes “sexual abuse as defined in Section 11165.1.” (
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.
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; Paroline, supra, 572 U.S. at pp. 440–441, 457.) In California, knowing possession or control of child pornography is a crime (
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.” ’ ” (Centinеla Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010 (Centinela).) In making this determination,
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, at p. 21.) 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
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” (
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 exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct,”
One month after Assembly Bill 1775 took effect, plaintiffs Don Mathews, Michael Alvarez, and William Owen filed a complaint alleging that the amendment violates their patients’ right to privacy under the state and federal Constitutions. Mathews, a licensed family and marriage therapist, is the founder and director of the Impulse Treatment Center in Walnut Creek, which, according to the complaint, is the largest outpatient treatment center for sexual compulsion or addiction in the United States. Alvarez, also a licensed family and marriage therapist, is a private practitioner specializing in treatment of addictions, including sex addiction, and was the founding director of the sexual disorders program at Del Amo Hospital in Torrance. Owen, a certified alcohol and drug counselor, has worked with sex addicts for the past 15 years in private practice and at Del Amo Hospital.
According to the complaint, plaintiffs “have treated numerous patients who are seeking treatment for sex addiction, sexual compulsivity, and other sexual disorders, many of whom have admitted downloading and viewing child pornography on the Internet, but whom [plaintiffs], based on their considerable training and experience, do not believe present a serious danger of engaging in ‘hands-on’ sexual abuse or exploitation of children
The complaint further alleges that statements made to psychotherapists during treatment are confidential and privileged, and that such confidentiality is an essential prerequisite for patients to seek and succeed in treatment: “[O]nce current patients who have admitted downloading or viewing child pornography during therapy learn that CANRA now requires Plaintiffs . . . or other psychotherapists to report such activity to law enforcement authorities for investigation, they will either cease therapy because Plaintiffs have exposed them to criminal prosecution and public disgrace or, if they
Plaintiffs further contend that CANRA now captures conduct that “does not fall within any reasonable definition of child sexual abuse,” such as “minors who view sexually explicit self-portraits sent to them by other minors over cell phone networks,” otherwise known as “sexting.” In sum, plaintiffs allege that requiring therapists to report their patients for possessing or viewing child pornography fails to “further CANRA‘s salutary purpose of identifying and protecting children in California who are being abused by others.”
In response, the Attorney General and the Los Angeles County District Attorney filed separate demurrers, contending that plaintiffs failed to assert a valid privacy claim under the state or federal Constitution.
Following a hearing, the trial court sustained the demurrers without leave to amend and dismissed the action with prejudice. The court held that Assembly Bill 1775 does not
The Court of Appeal affirmed. (Mathews v. Becerra (2017) 7 Cal.App.5th 334 (Mathews).) Applying the framework we outlined in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill), the court concluded that plaintiffs failed to meet the threshold requirements for stating a valid privacy claim under the California Constitution. The court determined that patients have no legally protected privacy interest in possessing child pornography or “in communicating that they have downloaded, streamed or accessed child pornography from the Internet.” (Mathews, at p. 358.) The court further asserted that there is no reasonable expectation of privacy in communicating illegal conduct to psychotherapists, as such conduct is not entitled to сonstitutional protection. (Id. at p. 359.) The same was true for minors engaged in consensual sexting, the court explained, because “minors do not have a fundamental right to produce or possess child pornography, including viewing sexually explicit images of other minors.” (Id. at p. 358.) The court then concluded that even if plaintiffs had satisfied the threshold elements to state a valid privacy claim, the invasion of privacy resulting from mandated reporting was justified
We granted review.
II.
At the outset, we clarify the scope of plaintiffs’ challenge in three ways.
First, plaintiffs challenge CANRA only to the extent it requires mandatory reporting of patients suspected of simple possession or viewing of child pornography online or through other electronic or digital media. The parties agree that such conduct is encompassed by the terms “downloads,” “streams,” and “accesses through any electronic or digital media” added to section 11165.1(c)(3) in 2014. Legislative history shows that the reporting statute did not previously cover simple possession or viewing of child pornography, even though knowing possession or control of child pornography has been a crime in California since 1989.
As noted, the Legislature enacted section 11165.1(c)(3) in 1987 and originally defined ” ‘sexual exploitation’ ” to apply to any person who “knowingly develops, duplicates, prints, or exchanges” any image of child pornography. (Former
The 1984 statute, in turn, borrowed the definition of “sexual exploitation” from a 1981 statute that made sexual exploitation an offense under
Against this backdrop, the Legislature in 2014 amended CANRA‘s definition of ” ‘sexual exploitation’ ” so that it now applies to any person who “downloads” or “streams” child pornography or “accesses [it] through any electronic or digital media.” (
We focus our attention on simple possession or viewing of child pornography online or through other electronic or digital media — conduct that forms the basis of plaintiffs’ challenge. The parties agree that such conduct is covered by the terms added by the 2014 amendment, and we find that this conduct was not previously covered by section 11165.1(c)(3). Although there is some legislative history asserting that the 2014 amendment was a mere technical update to CANRA (Senate Committee Report, at p. 2), the presumption that ” ’ “the Legislature intends to change the meaning of a law when it alters the statutory language” ’ ” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 715) is borne out by the fact that the Legislature did not make possession or viewing of child pornography reportable when it enacted CANRA in 1987 and, despite making possession of child pornography a crime in 1989, did not amend the statute to cover such conduct for 25 years thereafter. Moreover, “whatever the Legislature may have believed about [CANRA‘s] applicability to [pоssession or viewing of child pornography] when it enacted [the 2014 amendment] cannot dictate the proper construction of [CANRA] as it stood” before that amendment. (Coker v. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 689–690; see Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244 [“[A] legislative declaration of an existing statute‘s meaning is neither binding nor conclusive in construing the statute. Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts.“].)
Second, the parties do not agree on whether plaintiffs’ suit is properly viewed as a facial or an as-applied challenge to the reporting requirement added by the 2014 amendment. Defendants contend that the suit is a facial challenge, whereas plaintiffs argue that the suit presents facial and as-applied challenges. The Court of Appeal concluded that plaintiffs have presented ” ‘only a facial challenge’ ” because they “seek ‘only to enjoin any enforcement of the [amendment] and did not demonstrate a pattern of unconstitutional enforcement.’ ” (Mathews, supra, 7 Cal.App.5th at p. 350.)
We conclude that plaintiffs’ suit “has characteristics of both: The claim is ‘as applied’ in the sense that it does not seek to strike [the 2014 amendment] in all its applications, but only to the extent it covers” psychotherapists who treat persons who have possessed or viewed child pornography but present no serious danger of hands-on sexual abuse or exploitation of children. (Doe v. Reed (2010) 561 U.S. 186, 194.) “The claim is ‘facial’ in that it is not limited to plaintiffs’ particular case, but challenges application of the law more broadly to all” psychotherapists who treat such patients. (Ibid.) “The label is not what matters.” (Ibid.) Plaintiffs’ claims and requested relief “reach beyond the particular circumstances of these plaintiffs” and “must therefore satisfy [the] standards for a facial challenge to the extent of that reach.” (Ibid.)
III.
“In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162 (Novartis).) ” ’ ” ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . We also consider matters which may be judicially noticed.’ . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” ’ ” (Centinela, supra, 1 Cal.5th at p. 1010, citations omitted.)
We begin with plaintiffs’ state constitutional claim. Unlike the federal Constitution, the California Constitution expressly recognizes a right to privacy: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (
In Hill, supra, 7 Cal.4th 1, we set forth a framework for analyzing constitutional privacy claims. “[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. . . . [¶] . . . . [¶] A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified becausе it substantively furthers one or more countervailing interests. The plaintiff, in turn, may rebut a defendant‘s assertion of countervailing interests by showing
A.
We first examine whether plaintiffs have established a legally protected privacy interest. In distinguishing this inquiry from the second threshold element (whether there is a reasonable expectation of privacy in the circumstances), we find Hill instructive. There, university student athletes challenged the National Collegiate Athletic Association‘s (NCAA) drug testing program, which required disclosure of medical information and observation of athletes while they gave urine samples. (Hill, supra, 7 Cal.4th at pp. 11–13.) In concluding that “the NCAA‘s drug testing program impacts legally protected privacy interests” (id. at p. 40), Hill said that the “program intrudes on a human bodily function that by law and social custom is generally performed in private and without observers” (id. at pp. 40–41), and that “information about the internal medical state of an athlete‘s body . . . is regarded as personal and confidential” (id. at p. 41). Then, proceeding to the second threshold element, we examined whether student athletes had a reasonable expectation of privacy in urination and in information about their bodily condition “within the
Applying this approach, we conclude that section 11165.1(c)(3) impinges on a legally protected privacy interest. “In California, as in all other states, statements made by а patient to a psychotherapist during therapy are generally treated as confidential and enjoy the protection of a psychotherapist-patient privilege.” (People v. Gonzales (2013) 56 Cal.4th 353, 371 (Gonzales); see Jaffee v. Redmond (1996) 518 U.S. 1, 12 (Jaffee) [“all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege“].) For more than 50 years, this privilege has been protected by statute in California. (
The Law Revision Commission‘s comment on
The Evidence Code contains various exceptions that limit the applicability of the psychotherapist-patient privilege. (
The District Attorney suggests that the privacy interest here is undercut by the exceptions for circumstances where the services of a psychotherapist are sought to aid commission of a crime or to escape detection (
In addition, the Attorney General and the District Attorney contend that the dangerous patient exception means plaintiffs’ patients have no cognizable privacy interest. (See
Indeed, the statute does not authorize courts to determine what kinds of patients are dangerous. By the statute‘s plain terms, it is up to “the psychotherapist” to make that determination for each patient. (
The dissent says our approach would extend privacy protection to a patient who “discloses to his psychotherapist that he recently logged into a live-streaming platform to watch a man sexually assault a six-year-old boy.” (Dis. opn., post, at p. 21.) This example is drawn from a newspaper report of a group of men who live-streamed the sexual assault of a six-year-old boy, encouraged and gave directions to the perpetrator during the assault, cheered and masturbated for each other to see, and broadcast other prerecorded child pornography over the live-streaming platform. (Ibid., citing Keller & Dance, Child Abusers Run Rampant as Tech Companies Look the Other Way, N.Y. Times (Nov. 9, 2019).) Unlike the patients described in plaintiffs’ complaint, the men in this horrific example appear to have been actively involved in the sexual assault of a child. As a general rule, someone who describes being actively involved in hands-on abuse is a person who is a danger to others (
In sum, the narrow exceptions to the psychotherapist-patient privilege do not apply here. Because they do not apply, the general rule of confidentiality governs. Plaintiffs’ patients have a legally protected privacy interest in their communications during voluntary psychotherapy.
B.
We next ask whether plaintiffs’ patients have a reasonable expectation of privacy in the circumstances. Based on the allegations in the complaint, we conclude that the patients have such an expectation.
Here the psychotherapist-patient communications involve revelations of criminal conduct. (
The Court of Appeal held that there can be no reasonable expectation of privacy in information subject to mandatory reporting under CANRA (
This court considered and rejected a similar argument in American Academy of Pediatrics, supra, 16 Cal.4th 307, which held that a state law requiring minors to secure parental consent or judicial authorization before obtaining an abortion violated the minors’ state constitutional right to privacy. In concluding that pregnant minors have a reasonable expectation of privacy in the circumstances, the plurality opinion said: “Although it has been suggested that, in light of the general statutory rule requiring a minor to obtain parental consent for medical care, and the existence of numerous abortion/parental consent statutes in other states, a minor has no reasonable expectation of privacy in this context, it plainly would defeat the voters’ fundamental purpose in establishing a constitutional right of privacy if a defendant could defeat a constitutional claim simply by maintaining that statutory provisions or past practices that are inconsistent with the constitutionally protected right eliminate any ‘reasonable expectation of privacy’ with regard to the constitutionally protected right.” (Id. at pp. 338–339 (plur. opn. of George, C.J.).) Justice Kennard, who concurred in the holding, observed that “California law long required parental consent for many medical procedures” but that “the Legislature has generally not required parental
The Attorney General also argues that CANRA‘s existence for almost three decades prior to the 2014 amendment has eroded any expectation of privacy in admissions during psychotherapy suggesting conduct that harms children. In evaluating this contention, we begin by observing that there is no general exception to the psychotherapist-patient privilege for a patient‘s admission that he or she has engaged in criminal conduct. The exceptions that appear in
It is true that all jurisdictions, including California, have enacted laws requiring psychotherapists and other professionals to report child abuse and neglect in compliance with requirements for receiving federal aid to support child abuse and neglect prevention and treatment programs. (See ante, at pp. 10–11.) But even if psychotherapy patients have no reasonable expectation of privacy in disclosures covered by those long-standing reporting laws, the question here concerns disclosure of conduct — possessing or viewing child pornography — that such reporting laws generally do not cover. There appear to be only six states besides California with statutes that require mandatory reporting of psychotherapy patients who knowingly possess or view child pornography. (See
Apart from mandatory reporting laws, 10 states have a statutory exception to the psychotherapist-patient privilege for matters concerning child abuse or neglect. (See
It thus appears that “law and social custom” (Hill, supra, 7 Cal.4th at pp. 40–41) have not required child welfare reporting or authorized other disclosure of a patient‘s admission during voluntary psychotherapy treatment that the patient has possessed or viewed child pornography. The Attorney General is correct that “certain acts of obtaining child pornography” have been reportable for 30 years. But until the 2014 amendment to
On remand, the parties may develop evidence that further informs this inquiry. The evidence could reveal, for example, that prior to 2014 it was not a widespread practice for therapists to disclose to patients that they were required to report patients who аdmitted to simple possession or viewing of child pornography, and that therapists did not in fact report such admissions. Conversely, the evidence could show that prior to 2014 therapists already had a general practice of informing patients that they would report such revelations to the
In reaching the opposite conclusion, the dissenting opinion begins with the premise that the 2014 amendment was merely a technical update to CANRA. (Dis. opn., post, at pp. 4–8.) Based on that understanding, the dissent concludes that patients’ disclosures of having viewed or possessed child pornography have been reportable or would have given rise to reasonable suspicion of reportable conduct since CANRA was enacted in 1987, and thus no “more than a trivial number” of plaintiffs’ patients have a reasonable expectation of privacy in such disclosures. (Id. at p. 21.) As noted, however, the legislative history shows that simple possession or viewing of child pornography was not previously covered by former
The dissent places dispositive weight on plaintiffs’ allegation that many of their patients have admitted to downloading, not just viewing, child pornography. (Dis. opn., post, at pp. 11–12, 18–19.) The dissent argues that because “downloading or streaming a file inherently involves making a ‘duplicate[]’ of it” within the meaning of former
Importantly here, as the dissent concedes, there was “‘confus[ion]‘” about CANRA‘s coverage, including the scope of the term “duplicates,” before the 2014 amendment (dis. opn., post, at p. 6), and the amendment was “designed to clarify” the law (id. at p. 7). In cases where we have relied on a long-standing practice of disclosure to find no reasonable expectation of privacy or a diminished expectation, the long-standing practice was clear and served to put individuals on notice. (See Lewis v. Superior Court (2017) 3 Cal.5th 561, 575 (Lewis); International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 331 (International Federation).) Here, the dissent points to no authority or evidence indicating that the scope of the reporting requirement before the 2014 amendment clearly covered a patient‘s admission of having downloaded, streamed, possessed, or viewed child pornography.
Moreover, we have never held that the existence of a long-standing practice or requirement of disclosure can, by itself, defeat a reasonable expectation of privacy in the circumstances.
Finally, the dissent invokes the standard for facial challenges (dis. opn., post, at pp. 16–18) and asserts that plaintiffs, far from showing that the statute raises constitutional concerns in the great majority of its applications, “fail[] to establish a reasonable expectation of privacy under Hill for more than a trivial number of their patients” (id. at p. 21). In support of this assertion, the dissent makes a series of factual claims: “A patient‘s admission that he has knowingly possessed or viewed child pornography online will almost certainly cause a psychotherapist to suspect that the patient has duplicated such materials” (id. at p. 18); such an admission will “frequently entail” a disclosure that the patient has “copied child pornography to a computer, phone, or other device” (id. at p. 3);
C.
The third threshold inquiry is whether mandatory reporting of patients’ admissions of possessing or viewing of child pornography constitutes “a serious invasion of privacy.” (Hill, supra, 7 Cal.4th at p. 40.) In Hill, we observed that “[a]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is [sic] an indispensable consideration in assessing an alleged invasion of privacy.” (Id. at p. 37.) We conclude that the invasion of privacy caused by the reporting requirement is undoubtedly serious.
As to the scope and potential impact of the invasion, CANRA requires extensive reporting of information about psychotherapy patients who admit to possessing or viewing
The agency that receives the initial report must share the information with various other agencies. For example, law enforcement and county agencies are required to cross-report the information to each other, to child welfare agencies, and to district attorneys’ offices. (
Further, as the Attorney General confirms, psychotherapy patients who admit to possessing or viewing child pornography may face felony prosecution, which may result in a prison sentence and public registration as a sex offender. (
As to the nature and gravity of the invasion, there is no question that revelations made by patients who seek psychotherapy to treat sexual disorders, including sexual attraction to children, concern the most intimate aspects of human thought and behavior, however noxious or depraved. What this court observed in Lifschutz seems apt here: “’ “The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition.“’ ” (Lifschutz, supra, 2 Cal.3d at p. 431.) Mandatory reporting of such information is a severe invasion, for “[i]f there is a quintessential zone of human privacy it is the mind. Our ability to exclude others from our mental processes is intrinsic to the human personality.” (Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 944.) In sum, plaintiffs
IV.
Having determined that plaintiffs’ allegations satisfy the threshold inquiry for a cognizable privacy claim, we turn now to examine the standard of justification that the reporting requirement must meet.
In Hill, we canvassed our state constitutional privacy decisions and observed that some cases had applied a “‘compelling interest‘” test while others had applied “less intense scrutiny” in the form of general balancing tests. (Hill, supra, 7 Cal.4th at p. 34.) We explained: “The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis. Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the vital privacy interest. If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.” (Ibid.) The parties dispute which standard applies.
Plaintiffs note that our decision in Hill described Stritzinger as having held that a “patient‘s privacy interest in psychotherapy must yield to compelling state interests” and that “detection and prevention of child abuse constitutes such an interest.” (Hill, supra, 7 Cal.4th at p. 35, fn. 11, citing Stritzinger, supra, 34 Cal.3d at p. 511.) Relying on Stritzinger and Hill‘s citation to that case, the Court of Appeal in
But Stritzinger did not have occasion to apply the compelling interest test; we instead held that “on the particular facts of his case” a psychotherapy patient‘s disclosures of child molestation were not subject to mandatory reporting and were therefore privileged. (Stritzinger, supra, 34 Cal.3d at p. 512; see id. at pp. 513–514.) Although Stritzinger cited cases that had applied the compelling interest test to constitutional privacy claims (id. at p. 511), we subsequently said that not “every assertion of a privacy interest under
As defendants note, this case does not involve a privacy interest in bodily autonomy and is thus different from American Academy of Pediatrics, where we held that a statute requiring a pregnant minor to obtain parental consent or judicial
At the same time, we have never held that personal autonomy in the privacy context is limited to matters of bodily integrity. As amici scholars argue here, a core aspect of human autonomy is a person‘s ability to gain control over his impulses or desires so that he does not engage in pathological behaviors. Plaintiffs allege that this is what their patients are attempting to do: They are seeking psychotherapy to overcome their compulsions to possess or view child pornography so that they can conform their conduct to the law and social norms.
In this respect, the autonomy interest here is similar to that underlying “the oldest of the privileges for confidential communications known to the common law“: the attorney-client privilege. (Upjohn Co. v. United States (1981) 449 U.S. 383, 389 (Upjohn); see Jaffee, supra, 518 U.S. at p. 11.) Like the attorney-client privilege, the interest that plaintiffs seek to protect is intended to encourage “the observance of law and administration of justice.” (Upjohn, at p. 389.) Notably, the psychotherapist-patient privilege in 12 jurisdictions is stated in terms that place patient communications on the same basis of confidentiality as client communications protected by the attorney-client privilege, although the former privilege is subject to different exceptions than the latter. (See, e.g.,
As we explain, however, there is ultimately no need to resolve at this juncture whether the proper standard of justification here is the compelling interest test or a general balancing test. No one disputes that the principal purpose of the reporting requirement — preventing the sexual exploitation and abuse of children — is a weighty one. (See New York v. Ferber (1982) 458 U.S. 747, 757.) The main issue on which the parties disagree is whether the reporting requirement actually serves its intended purpose.
Defendants argue that mandatory reporting advances the state‘s interest in protecting children by facilitating enforcement of the child pornography laws. As defendants note, the purpose of these laws is to protect children by drying up the market for images of their sexual abuse. And according to the Attorney General, mandatory reporting also helps to “ensur[e] that those with direct access to children do not threaten them
Plaintiffs, by contrast, contend that there is only a “slim possibilit[y]” that the reporting requirement can assist law enforcement in identifying and rescuing children depicted in child pornography. They assert that patients who have downloaded or viewed child pornography online are “highly unlikely” to have any information about the identities, locations, or other relevant characteristics of the depicted children. Plaintiffs also allege that because child pornography is so freely and easily accessible on the Internet, patients who admit to viewing child pornography online span a wide range of psychological profiles and disorders, and do not present a serious danger of hands-on abuse. Mandatory reporting of patients who do not pose a serious danger of hands-on abuse, plaintiffs allege, would not serve any interest in preventing those patients from causing direct harm to children.
Moreover, plaintiffs’ complaint alleges that the reporting requirement “deter[s] existing or potential patients who have serious sexual disorders . . . from obtaining needed psychotherapy, despite the lack of any evidence that they have engaged in ‘hands-on’ or ‘contact’ sexual abuse of children.” The complaint specifically alleges that “mandated reporting of child pornography viewing will unnecessarily deter persons with sexual disorders from psychotherapy treatment,” which suggests the contribution of those persons to the market for child pornography will continue unabated.
With no facts developed at this stage of the litigation, we are unable to evaluate these competing claims as to whether the reporting requirement serves its intended purpose. Our
At its core, plaintiffs’ argument is that the reporting requirement does not further, and may in fact undermine, its
On remand, the parties may develop evidence on a variety of relevant issues, including but not limited to the number of reports that psychotherapists have made regarding the possession or viewing of child pornography since the 2014 amendment; whether the reports have facilitated criminal prosecutions, reduced the market for child pornography, aided the identification or rescue of exploited children, or otherwise prevented harm to children; and whether there are less intrusive means to accomplish the statute‘s objectives. The parties may also introduce evidence on the extent to which the reporting requirement deters psychotherapy patients from seeking treatment for sexual disorders, inhibits candid communication by such patients during treatment, or otherwise compromises the practical accessibility or efficacy of treatment.
We have recognized the value of such factual development in other cases involving the state constitutional right to privacy, which were decided on the basis of fully litigated records. The Hill case came to our court after a bench trial that involved testimony from numerous “scientists, physicians, and sports professionals regarding the merits of the NCAA‘s list of proscribed drugs and the general efficacy of its drug testing program.” (Hill, supra, 7 Cal.4th at p. 13.) Our balancing analysis relied extensively on evidence developed in the record (id. at pp. 45–47), and we declined to go beyond the record
Similarly, in American Academy of Pediatrics, supra, 16 Cal.4th 307, we had the benefit of an evidentiary record developed through a two-month bench trial involving live testimony from 25 witnesses and deposition testimony from six other witnesses. (Id. at p. 323 (plur. opn. of George, C.J.); see ibid. [“The witnesses represented a broad spectrum of experts with training and experience in the fields of health care, adolescent development, and the application of judicial bypass procedures in other states. The testimony covered a wide range of subjects, including the relative medical and psychological risks posed to pregnant minors by abortion and childbirth, the general maturity of minors seeking abortion, the existing guidelines and practices with regard to the counseling provided to minors seeking abortion, and the general efficacy (or lack thereof) of the judicial bypass process in other jurisdictions.“].) In concluding that the parental consent law would not further the asserted interests in the health of minors and the parent-child relationship, a majority of the court observed that its determination was “supported . . . by the overwhelming evidence, much of it uncontested.” (Id. at p. 354; see id. at pp. 355–356 [discussing trial testimony]; id. at p. 383 (conc. opn. of Kennard, J.) [“Benefitting from the experience of other states with similar laws, and a well-developed trial record, this court is equipped to assess the ‘objective effect’ of the parental consent law.“].)
Despite no evidence bearing on the relevant questions here, 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,
Similarly, the dissent endorses the Attorney General‘s and District Attorney‘s assertions that the reporting requirement helps law enforcement stop or reduce instances of viewing child pornography. (Dis. opn., post, at p. 27.) But without evidence on how many patients are deterred from seeking treatment for every patient who is reported, we have no basis for concluding that the reporting requirement reduces viewing of child pornography. Nowhere does the dissenting opinion credit the allegations in plaintiffs’ complaint that suggest a deterrent effect, even though “[o]n review of a demurrer, we accept as true all properly pleaded facts.” (Novartis, supra, 4 Cal.5th at p. 156.) As amicus curiae California Medical Association observes, this case in its current posture has no record from which a court can determine whether the reporting requirement actually serves its intended purposes.
In remanding this matter, we address two additional arguments made by the Attorney General. First, noting that plaintiffs do not question the validity of section 11165.1(c)(3) as it existed before the 2014 amendment, the Attorney General asserts that viewing or possessing online child pornography is not “sufficiently different from, and less harmful to children than, other forms of reportable abuse that a different constitutional balance is required here.” But even assuming that
Second, the Attorney General contends that “whether expanded reporting obligations or greater therapist-patient
V.
Plaintiffs also raise a privacy claim under the due process clause of the
CONCLUSION
We conclude that plaintiffs have asserted a cognizable privacy interest under the state Constitution such that their complaint survives demurrer and the action may proceed to factfinding on whether the reporting requirement furthers its intended purpose. Because this case comes to us on demurrer,
We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion.
LIU, J.
We Concur:
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
To combat the spreading plague of child pornography over the Internet, in 2014 the Legislature amended the Child Abuse and Neglect Reporting Act (
I disagree. In concluding that plaintiffs’ complaint survives demurrer, the majority misapplies the inquiry set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill) and the standard that governs facial challenges to a statute. Hill demands that a plaintiff in a state constitutional privacy case establish that the challenged conduct infringes upon a reasonable expectation of privacy. (Id. at p. 40.) But I do not perceive any such expectation among the cohort of patients whose interests are pressed by the psychotherapist plaintiffs here. On the contrary, the requirement before us is akin to other mandatory reporting rules governing psychotherapists that have never been understood as infringing upon their patients’ reasonable privacy expectations. And although the majority responds to the well-established reporting requirement by perceiving a possible privacy expectation among only those patients who admit to viewing or possessing child
Even assuming for the sake of argument that a small class of patients could claim a reasonable expectation of privacy upon communicating their possession or viewing of child pornography online, plaintiffs still have not met the rigorous standard that applies to claims alleging that a statute is facially unconstitutional. A plaintiff who brings a facial challenge to a statute must demonstrate at a minimum that the statute creates constitutional concerns “in the generality or great majority of cases.” (T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1117, fn. 6 (T-Mobile).) It is apparent even on demurrer that plaintiffs cannot satisfy this burden. A disclosure that one has knowingly possessed or viewed child pornography will frequently entail a disclosure that one has copied child pornography to a computer, phone, or other device. Even more often, such admission will cause a therapist to reasonably suspect that a patient has engaged in other reportable conduct — with such suspicion, by itself, being sufficient to trigger the reporting requirement. Because there is no dispute that mandatory disclosure of the copying is constitutionally permissible, those who admit to possessing or viewing child pornography online will often be subject to mandatory reporting in any event. Applying CANRA, as amended, to those child pornography possessors and viewers poses no constitutional problem, defeating any facial challenge concerning child pornography viewers as a group.
Last, even assuming that remand is appropriate to allow the trial court to balance plaintiffs’ asserted privacy concerns against important competing interests (Hill, supra, 7 Cal.4th at pp. 37-38), the compelling state interest in protecting children from the harm caused by sexual exploitation over the Internet will almost certainly outweigh the alleged privacy invasion.
For these reasons, I respectfully dissent.
I. ASSEMBLY BILL 1775 MERELY UPDATED CANRA TO FURTHER PROTECT CHILDREN FROM SEXUAL EXPLOITATION OVER THE INTERNET
I begin with a discussion of the 2014 amendment to CANRA. As will be explained, this amendment merely updated the statute‘s definition of “sexual exploitation” to keep pace with modern technology.
“The intent and purpose of [CANRA] is to protect children from abuse and neglect.” (
In the decades after CANRA was enacted, new technologies appeared that facilitated the production,
The legislative history of Assembly Bill 1775 shows that “[t]he purpose of th[e] bill is to update the definition of ‘sexual exploitation’ in the mandated child abuse reporting law with respect to visual depictions of children in obscene sexual conduct to reflect modern technology. . . .” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1775 (2013-2014 Reg. Sess.) as amended May 13, 2014, p. 1.) Committee and floor analyses of Assembly Bill 1775 uniformly describe the amendment as making “purely technical revisions” to the definition of “sexual exploitation” to “reflect modern technology.” (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1775 (2013-2014 Reg. Sess.) as amended May 13, 2014, pp. 1-2; see id. at p. 7 [terms added to definition of sexual exploitation “ensure the reporting requirements related to internet child pornography are defined to reflect modern technology“].) Indeed, the bill‘s history further suggests that the updated definition covers conduct “that would likely [be] include[d] . . . even absent the update.” (Assem. Com. on Appropriations, Analysis of Assem. Bill No. 1775, supra, as amended Mar. 19, 2014, p. 1.) As the bill‘s author explained, the “downloading or streaming of child pornography” is the “modern” equivalent of the “printing or copying of such materials,” and the Legislature wished to eliminate any existing “confus[ion]” of “mandated reporters . . . on whether they should report the downloading or streaming of child pornography, as
The legislative history thus makes plain that Assembly Bill 1775 was designed to clarify that CANRA protects children from being sexually exploited through online child pornography. Consistent with this purpose, the measure merely updated a definition to keep in step with modern technology and to specify that the modern equivalent of conduct already reportable under the existing statute is, in fact, reportable. Indeed, as noted, copying a file from the Internet (i.e., downloading) was already covered by the term “duplicates” in the former version of CANRA. This background informs an appropriate evaluation of whether plaintiffs have successfully alleged a violation of their
II. CANRA‘S LONG-STANDING REPORTING REQUIREMENT SIGNIFICANTLY LIMITS PATIENTS’ REASONABLE PRIVACY EXPECTATIONS
“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill, supra, 7 Cal.4th at pp. 39-40.) With regard to the second of these elements, as discussed above, the psychotherapist-patient relationship has for more than three decades featured a reporting requirement that is triggered when a patient discloses having acquired child pornography in any of several ways. In my view, the majority fails to supply a convincing explanation concerning how a patient can have a reasonable expectation of privacy in similar disclosed conduct when the consumption of pornography occurs through online channels.
” ‘The extent of [a privacy] interest is not independent of the circumstances.’ [Citation.] Even when a legally cognizable privacy interest is present, other factors may affect a person‘s reasonable expectation of privacy.” (Hill, supra, 7 Cal.4th at p. 36.) “[C]ustoms, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy.” (Ibid., citing Whalen v. Roe (1977) 429 U.S. 589, 602 (Whalen), Fraternal Order of Police, Lodge No. 5. v. City of Philadelphia (3d Cir. 1987) 812 F.2d 105, 114.) In the context of a disclosure requirement analogous to the one
Since its enactment, CANRA has expressly excepted information regarding suspected child abuse or neglect from the psychotherapist-patient privilege. (
Given this decades-old reporting requirement, a patient cannot reasonably expect that psychotherapists will not report the patient‘s disclosures of engaging in the same conduct over the Internet. As the legislative history illustrates, Assembly Bill 1775 made “purely technical revisions” (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1775, supra, as amended May 13, 2014, pp. 1-2) to CANRA‘s definition of sexual exploitation to clarify that conduct which was “likely include[d]” in the definition “even absent the update” must be reported (Assem. Com. on Appropriations, Analysis of Assem. Bill No. 1775, supra, as amended Mar. 19, 2014, p. 1).
The 2014 amendment consequently added the words “downloads, streams, [or] accesses through any electronic or digital media” to
Accordingly, downloading or streaming a file inherently involves making a “duplicate[]” of it (
Perhaps in an effort to avoid addressing the more obvious similarities between the current and former versions of CANRA, the majority emphasizes that plaintiffs are challenging “simple possession or viewing” of child pornography online (maj. opn.,
As a preliminary matter, it is unclear how a person can possess child pornography accessed through electronic or digital means without also having downloaded it. Indeed, we must accept as true the factual allegations in plaintiffs’ complaint that ” ‘many’ ” of their patients ” ‘have admitted downloading and viewing child pornography on the Internet.’ ” (Maj. opn., ante, at p. 6, italics added; see Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint“] (Yvanova).) As discussed above, downloading child pornography is simply the modern term for duplicating such material, which has been reportable conduct for decades. Accordingly, even as to patients who admit to knowingly possessing child pornography obtained online, they
Yet even assuming that Assembly Bill 1775 makes reportable a narrow category of conduct that psychotherapists were not previously required to disclose — a patient who admits only knowingly viewing child pornography online — it remains doubtful that under normal circumstances these patients could claim a reasonable expectation of privacy. CANRA requires a mandated reporter to report whenever he or she “has knowledge of . . . a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” (
Whalen, supra, 429 U.S. 589 is instructive. (See Hill, supra, 7 Cal.4th at p. 36.) In Whalen, the Supreme Court held that the mandatory reporting of certain drug prescriptions to the New York Department of Health did not violate a patient‘s constitutional right to privacy because such disclosures were not
There are also practical problems with the majority‘s approach. Consider the following hypotheticals. A patient admits to knowingly duplicating a single photograph containing child pornography: reportable. A patient admits to knowingly viewing 1,000 images of child pornography online: constitutionally protected. A patient discloses knowingly viewing and printing one photograph depicting child pornography: reportable. A patient discloses knowingly possessing 3,000 images of child pornography on his computer, which he only could have obtained by downloading them: constitutionally protected. These anomalous results further suggest that the majority‘s approach is out of step with what a reasonable expectation of privacy actually entails.
In an effort to sidestep the conclusion that CANRA‘s legislative history compels, the majority claims that we “considered and rejected” a similar argument in American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307. (Maj. opn., ante, at p. 23.) It is true that a three-justice plurality in
Moreover, contrary to the majority‘s assertion (maj. opn., ante, at p. 23), nothing in American Academy prohibits courts from considering relevant laws as “customs” and “practices” surrounding particular activities in determining whether a plaintiff has a reasonable expectation of privacy. (Hill, supra, 7 Cal.4th at p. 36.) Indeed, our precedent endorses such an approach.
In Lewis v. Superior Court (2017) 3 Cal.5th 561 (Lewis), we determined that patients retained a “less robust” expectation of privacy in their prescription records under the Controlled Substance Utilization Review and Evaluation System report, in part, because patients are on notice that their personal information may be shared under a different statute. (Lewis, at p. 575, citing
For all of the foregoing reasons, it seems extremely doubtful that plaintiffs’ patients who disclose only having possessed or viewed child pornography can claim a reasonable expectation of privacy. But we need not dwell on the possibility that a small contingent of these patients might have such an expectation, because as discussed below, plaintiffs must allege far more to proceed with their facial challenge.6
As noted, plaintiffs challenge Assembly Bill 1775 to the extent it covers “psychotherapists who treat persons who have possessed or viewed child pornography but [in the therapists’ view] present no serious danger of hands-on sexual abuse or exploitation of children.” (Maj. opn., ante, at p. 13.) The majority acknowledges that plaintiffs’ claim and the relief that would follow ” ‘reach beyond the particular circumstances of these plaintiffs’ and ‘must therefore satisfy [the] standards for a facial challenge to the extent of that reach.’ ” (Ibid., citing Doe v. Reed (2010) 561 U.S. 186, 194.) Yet the majority fails to explain how plaintiffs have sustained this heavy burden.
“The standard for a facial constitutional challenge to a statute is exacting.” (Today‘s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 218 (Today‘s Fresh Start).) The courts will presume a statute is valid unless
“Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.’ [Citation.] Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither ’ “anticipate a question of constitutional law in advance of the necessity of deciding it” ’ nor ’ “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” ’ [Citations.] Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the peoрle from being implemented in a manner consistent with the Constitution. We must keep in mind that ’ “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” ’ ” (Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 450-451.)
This court has not settled on a precise formulation of the applicable standard for facial challenges. (See T-Mobile, supra, 6 Cal.5th at p. 1117, fn. 6.) But even under the least onerous
For many of the reasons stated ante, no such showing has been made here. As noted, a psychotherapist must make a report under CANRA whenever he or she “has knowledge of . . . a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” (
The majority maintains that these facts are “conjecture” and not supported by evidence. (Maj. opn., ante, at p. 31.) But it need look no further than the factual allegations in plaintiffs’ complaint, which we must accept as true. (Yvanova, supra, 62 Cal.4th at p. 924.) The complaint concedes that ” ‘many’ ” of plaintiffs’ patients ” ‘have admitted downloading and viewing child pornography on the Internet.’ ” (Maj. opn., ante, at p. 6.) Giving the complaint a reasonable interpretation, as we must, it is obvious that ” ‘many’ ” of plaintiffs’ patients have disclosed not only viewing child pornography online, but also downloading such material. (Ibid.) Accordingly, those patients have no reasonable expectation of privacy, and, even on demurrer, plaintiffs’ facial challenge fails.
The majority summarily concludes that the dangerous patient exception does not apply because “plaintiffs’ complaint makes clear that they do not believe the patients whose privacy is at issue pose ‘a serious danger’ . . . to themselves or to others.” (Maj. opn., ante, at p. 21, citation omitted.) But the exception set forth in Evidence Code section 1024 is not limited to seriously dangerous patients, and plaintiffs have not alleged that their patients pose no danger. In any event, plaintiffs’ complaint refers only to the dangers ” ‘of engaging in “hands-on” sexual abuse or exploitation of children or the distribution of child pornography to others.’ ” (Maj. opn., ante, at pp. 6-7.) It says
An example illustrates the peril underlying the majority‘s approach. Imagine a patient discloses to his psychotherapist that he recently logged into a live-streaming platform to watch a man sexually assault a six-year-old boy. The patient admits that he cheered and masturbated as he watched the boy be orally raped and violently penetrated. (See Keller & Dance, Child Abusers Run Rampant as Tech Companies Look the Other Way, N.Y. Times (Nov. 9, 2019) <https://www.nytimes.com/interactive/2019/11/09/us/internet-child-sex-abuse.html> [as of Dec. 20, 2019].) Under plaintiffs’ approach, such disclosure would be constitutionally protected, so long as, in the psychotherapist‘s estimation, the man himself posed no “serious” danger of “hands-on” abuse. Such a man is constitutionally entitled to have a psychotherapist keep his secret, plaintiffs reason — unless, of course, the man admits to copying a recording of the event (“duplicat[ing] . . . any . . . video” under former section 11165.1, subd. (c)(3)), in which case the constitutional balance is somehow different, and reporting must occur.
IV. PLAINTIFFS ARE UNLIKELY TO ESTABLISH ON REMAND THAT ASSEMBLY BILL 1775 DOES NOT SUBSTANTIVELY FURTHER ITS INTENDED PURPOSE
In light of plaintiffs’ failure to establish a reasonable expectation of privacy under Hill for more than a trivial number of their patients, or to satisfy the “exacting” standards of a facial challenge to a statute (Today‘s Fresh Start, supra, 57 Cal.4th at p. 218), the demurrers may be properly sustained on either of
“Privacy concerns are not absolute; they must be balanced against other important interests. [Citations.] ‘[N]ot every act which has some impact on personal privacy invokes the protections of [our Constitution] . . . . [A] court should not play the trump card of unconstitutionality to protect absolutely every assertion of individual privacy.’ ” (Hill, supra, 7 Cal.4th at p. 37.)
“A defendant may prevail in a state constitutional privacy case by negating any of the three elements [of an invasion of privacy claim] . . . or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Hill, supra, 7 Cal.4th at p. 40.) “Invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest. Legitimate interests derive from the legally authorized and socially beneficial activities of government and private entities.” (Id. at p. 38.) “Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate competing interests.” (Ibid.)
“Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) If a privacy interest is less central, or in bona fide dispute, courts
By remanding the matter for further proceedings, the majority acknowledges that “surviving demurrer is no assurance of success on the merits once evidence is developed and considered.” (Maj. opn., ante, at p. 4.) I agree. Based on the demonstrated countervailing state interest in protecting children from the harm caused by sexual exploitation over the Internet and plaintiffs’ speculative contentions regarding whether the 2014 amendment furthers that interest, it is apparent that the state interest will almost certainly outweigh the alleged privacy invasion.
As a preliminary matter, “[n]o one disputes that the principal purpose of the reporting requirement — preventing the sexual exploitation and abuse of children — is a weighty one.” (Maj. opn., ante, at p. 37.) In People v. Stritzinger (1983) 34 Cal.3d 505 (Stritzinger), we made clear that the constitutionality of the child abuse reporting exception to the psychotherapist-patient privilege and the compelling state interest in protecting children were not in question. (Stritzinger, at p. 513.) We recognized that a psychotherapist who reasonably suspects an incident of sexual abuse is “of course” required to report these suspicions under CANRA. (Stritzinger, at p. 513.) Decisions of the high court have similarly held that the state‘s interest in ” ’ “safeguarding the physical and psychological well-being of a minor” is “compelling.” ’ ” (Osborne, supra, 495 U.S. at p. 109; see Ferber,
Moreover, this court has already laid bare plaintiffs’ conjecture that mandatory reporting of psychotherapist-patient communications will deter patients from seeking therapy. Most recently in Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 632, we explained: “To a large extent, . . . the conditions that might influence [patient] perceptions about confidentiality already exist. Psychotherapists’ duty to warn about patient threats is well established in California. Indeed, despite fears that this duty would deter people from seeking treatment and irreparably damage the psychotherapist-patient relationship [citation], empirical studies have produced ‘no evidence thus far that patients have been discouraged from coming to therapy, or discouraged from speaking freely once there, for fear that their confidentiality will be breached.’ ” (Ibid.; see also People v. Wharton (1991) 53 Cal.3d 522, 558.) Similarly, in In re Lifschutz (1970) 2 Cal.3d 415 (Lifschutz), we rejected the petitioner‘s claim that if the state could compel disclosure of some psychotherapeutic communications, psychotherapy could no longer be practiced successfully. We observed “that the practice of psychotherapy has grown, indeed flourished, in an environment of non-absolute privilege,” and “psychotherapists certainly have been aware of the limitations of their recognized privilege for some time.” (Id. at p. 426.) In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, we observed that “it does not appear that our decision [in Lifschutz] in fact adversely affected the practice of psychotherapy in California. Counsels’ forecast of harm in the present case strikes us as equally dubious.” (Tarasoff, at p. 440, fn. 12.)7 And, as discussed above, arguments based on a hypothetical future harm are not cognizable in a facial challenge. (T-Mobile, supra, 6 Cal.5th at p. 1125.)
Furthermore, even though the task of identifying sexually exploited children online is challenging, it does not mean that Assembly Bill 1775 fails to advance its purpose, as plaintiffs assert. In examining a similar federal statute, the Office of Legal Cоunsel determined that “[p]ornography may well involve ‘a’ specific, potentially identifiable child even if neither covered professionals nor their patients know the child‘s identity. Even if covered professionals (or their patients) do not know the identity of any children depicted in pornography viewed by a patient, a report may lead authorities to specific, identifiable children. While some child pornography may be the work of professionals and therefore difficult to link to specific identifiable children, other such images are homemade recordings, taken in domestic contexts, of sexually abusive acts ‘committed against young neighbors or family members’ and
In addition, by asserting that, on the record before us, we cannot “evaluate . . . whether the reporting requirement serves its intended purpose” (maj. opn., ante, at p. 38), the majority completely ignores the direct (albeit “hands-off“) harm caused by the viewing of child pornography over the Internet. (Grant, supra, 58 Cal.4th at p. 477.) Child pornography is not limited to hands-on abuse. ” ‘[T]he “victimization” of the children . . . does not end when the pornographer‘s camera is put away. The consumer, or end recipient, of pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways. [¶] First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials. . . . The consumer who “merely” or “passively” receives or possesses child pornography directly contributes to this continuing victimization. [¶] Second, . . . [t]he recipient of child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly
As the Attorney General argues, the 2014 amendment to CANRA “reflects the accepted position that ‘every viewing of child pornography is a repetition of the victim‘s abuse.’ [Citation.] Mandated reporting of such behavior helps authorities locate and confiscate these images and stop instances of this harmful conduct.” Consequently, even were it true, as plaintiffs assert, that the new reporting requirement will not reduce hands-on abuse or facilitate the rescue of exploited children, “the State‘s interest in protecting against the harms visited upon children when sexual images of them are downloaded, accessed, or streamed is alone sufficient to outweigh any asserted privacy interest.” As the District Attorney similarly asserts, “Obviously, the reduction of persons who duplicate, print, exchange, download, access or stream child pornography, will reduce the ongoing sexual exploitation of children.” That should be enough to establish that the amendment furthers the state‘s compelling interest in protecting children and reducing abuse. The majority‘s contrary view depends, not on allegations in the complaint, but on the majority‘s speculation that “the contribution . . . to the market for child pornography” of persons allegedly deterred by the reporting requirement from seeking treatment for their sexual
V. CONCLUSION
The children depicted in child pornography “are re-victimized every time the content is accessed.” (Bursztein et al., Rethinking the Detection of Child Sexual Abuse Imagery on the Internet (2019) p. 1 <https://elie.net/static/files/rethinking-the-detection-of-child-sexual-abuse-imagery-on-the-internet/rethinking-the-detection-of-child-sexual-abuse-imagery-on-the-internet-paper.pdf> [as of Dec. 20, 2019].) The consumer who possesses or views images of child pornography online ” ‘directly contributes to this continuing victimization.’ ” (Grant, supra, 58 Cal.4th at p. 477, quoting Norris, supra, 159 F.3d at p. 930.)
The Legislature made a technical update to CANRA in order to help identify and rescue these child victims. In light of the long-standing customs and practices surrounding the mandatory reporting of the consumption of child pornography, and given the formidable rules insulating a statute from a claim of facial constitutionality, plaintiffs have not alleged a constitutional violation of privacy. I would so hold.
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.