Understanding Mandated Reporting Requirements: AB 1775

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1 Understanding Mandated Reporting Requirements: AB 1775 By: Cathy Atkins, J.D. In 1980, California passed a series of laws with the intent and purpose to protect children from abuse and neglect. This is the Child Abuse and Reporting Act, otherwise known as the CANRA laws. Since 1980, the CANRA laws have been amended throughout the years to keep up with advancing technology, recognizing additional appropriate mandated reporters, and to clarify areas of weakness. In 2014, AB 1775 (Melendez) was signed in California, which amended the current definition of sexual exploitation 1 for the purposes of mandated reporting 2. The intent of this amendment was to modernize this section of the CANRA laws in light of the Internet era and to provide greater clarity to mandated reporters. Historically, a mandated report was required when a therapist learned someone copied, printed, exchanged or developed a photograph, slide, negative or video of a child engaged in an act of obscene sexual conduct. In 2014, AB 1775 added downloading, streaming and accessing through electronic or digital media. The following questions have arisen surrounding this addition to the CANRA laws: What if my client just stumbled upon child-pornography while searching other pornography sites? AB 1775 does not affect the standard of intent of the CANRA statute. The law calls for the child pornography to knowingly be printed, copied, exchanged, downloaded, streamed or accessed. Especially with the use of the Internet, it is conceivable to stumble upon a site not originally intended, and as such, we do not believe this would be a mandatory report. What if I do not know if the image is of a minor? AB 1775 does not affect the standard of reasonableness within this law. Like with any mandated reporting requirement, there must be reasonable suspicion that a minor is involved. If the mandated reporter does not reasonably believe the image(s) being discussed is of a minor, there is no report. For example, if a client simply tells you he/she like streaming sexual videos of girls that posed to look like high-school cheerleaders that in itself would not be a mandated report as there is not reasonable suspicion that anyone in the image is under 18. If however, that client said he/she likes streaming sexual videos of preschool girls there would be a mandated report as it would be unreasonable to argue that the minor in the image was 18 or older. It is important for therapists to remember they are not investigators. While certainly it behooves a therapist to gain the necessary information and background to provide sound

2 therapy, therapists are not law enforcement officers and have no duty to investigate a client s access of child pornography. We do advise however, if a therapist suspects there is a possibility of child endangerment, to practice due diligence to protect a child in danger. What if my client told me prior to January 1, 2015 that they download child pornography? This law went into effect January 1, 2015, and, therefore, we believe any information your client shared with you prior to that date would not be subject to AB However, if you work with a population likely to access child pornography, then we would advise informing them of the law in question, your reporting requirements, and limits of confidentiality. What if my client tells me about past sexual exploitation? It seems the legislative intent of the law is to capture current, as well as historical child exploitation, however, the letter of the law reads in current tense, not past tense. That is, the laws states duplicates, downloads, exchanges, streams and doesn t state duplicated, downloaded, exchanged, streamed. This leaves some room for differing opinions and interpretation. For example, did your client state he/she downloaded child pornography ten years ago and have never had an interest in touching a child? Or, did he/she state that he/she downloaded child pornography yesterday and he/she is a preschool teacher? While we recommend following the intent of the legislation, if the therapist is reluctant to make a mandatory report, this aspect of the law does give rise to a possible legal argument against needing to make a mandatory report when historical copying or accessing is reported. However, as CAMFT has always cautioned, if a therapist is aware a client has accessed child pornography and it is later revealed the client was abusing a child, the therapist s knowledge of the possession of child pornography could potentially be used to hold the therapist criminally responsible for the failure to report the possession. What should I put in my informed consent? While you are not legally required to have a written informed consent, and not all therapists do, we certainly encourage it. Informing clients of the limits of confidentiality helps protect you as a provider as well as the client. If a provider works with a population likely to engage in the exchange, duplicating or accessing of child pornography, we would highly recommend including these specific reporting requirements within the consent. The most pertinent portion of the statute would be: A person who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, video. in which a child is engaged in an act of obscene sexual conduct. How do I make a report?

3 A report is made exactly the same way any other mandatory report is made. The report should be submitted to either law enforcement or child protective services. Within the report, provide the information you feel is relevant to the report. Sometimes mandated reporters know the victim s name/identifying information and sometimes they do not proceed as you have historically done. What if my client tells me the child pornography image is in fact a drawing or cartoon? As stated above, the law requires the copying, exchange or downloading of a child engaged in an obscene sexual act. It is reasonable to interpret the law s intent that child means a human child as such, we believe that a drawing or cartoon would not be a mandatory report unless additional factors led you to a reasonable suspicion of child endangerment. What if I hear of sexual exploitation third hand (i.e., my client s wife)? Just like with any mandatory reporting situation, you might receive the relevant information to a mandatory report from the victim, a perpetrator or a third party. When it comes from a third party, like all mandatory report situations, it is important to weigh all the surrounding facts to determine if there are enough factors present to make a report. How do I know if something is obscene? While there is no specific definition of obscene sexual conduct, within the law, CANRA defines obscene matter as matter, taken as a whole, that to the average person, applying contemporary statewide standards, depicts sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value. 3 Like anything related to child abuse reporting, there is often not a black or white answer our recommendation to assist in determining if something rises to the level of obscene, is to use clinical training, common sense, and clinical consultation. What if I feel my client is not an imminent threat to a child? If you are in the position of making a mandatory report, and you believe your client has not shown any signs indicating imminent threat to a child, you can indicate that in your report. While we caution you not to make a guarantee of any client s behavior (i.e., This client would not harm a child ), certainly it is reasonable to indicate if you believe your client has not shown any signs of desire or intent to harm (i.e., My client, while coming to therapy for compulsive use of pornography, has expressed a desire to remedy his interest in viewing child pornography, has never indicated a desire to touch a child, and does not have access to children. ) These kinds of factors are imperative in assisting law enforcement and child protective services in determining which cases are appropriate to open and investigate. If I make a report, what will happen to my client?

4 No one can say with 100% certainty what will happen in any case in which a therapist must make a child abuse report. The facts of any given case determine the eventual outcome of whether a case will be opened, investigated or prosecuted. As to AB 1775, discussions with law enforcement and child protective services reveal that in most circumstances, a report made on an individual merely downloading or streaming child pornography for self-gratification would not typically result in an investigation of that individual. It is important to note, however, that is a generality. Any aggravating factors could of course change that result (i.e., prior history of child sexual abuse, indication of child endangerment, easy access to vulnerable children.) Discussions with prosecutors indicate that if a case was in fact opened and prosecuted, the sentencing guidelines could range from a diversion settlement to prison time (and sex offender registration) based on various factors (prior child sexual abuse convictions, involvement of prepubescent children, sado-masochistic behavior or rape of children, etc.) It is important to reiterate that any time a therapist is required to make any kind of mandatory child abuse report, if there are mitigating factors to show the belief that a client is not a current threat to a child (or aggravating factors to indicate possible child endangerment), we recommend the therapist include those facts within the report being made. So, what about my duty has changed under AB 1775? Well, the simple answer is, depends on who you ask. There are varying opinions on what has been, and currently is, a mandatory report. In fact, CAMFT has long struggled with the interpretation of this law, given the lack of legislative intent and case law, as well as the unclear wording in the statute, itself. Child Abuse Per Se? Some therapists have shared a belief that a therapist s awareness of a client acknowledging his/her use of child pornography in of itself is cause for a mandatory report. This is based on the fact that child sexual assault had to have occurred to create the child pornography in the first place. The CANRA laws 4 state that when a mandated reporter has knowledge of a child, and reasonably suspects that the child has been the victim of child abuse, the mandated reporter shall make a report. The law states that reasonable suspicion means that based on the facts given, a reasonable person in a similar position would suspect child abuse has occurred. It is under this body of law that some argue that a mandatory report for sexual assault 5 should be made whenever a therapist learns of the child pornography in and of itself. For instance, in 2012, the United States Attorney s Office of Legal Counsel issued a legal opinion 6 stating that when a mandated reporter learns a client has viewed child pornography, it gives reason to suspect a child has suffered an incident of child abuse; and that when a

5 mandated reporter learns facts that give reason to suspect a child has suffered any incident of child abuse, the abuse must be reported (even though the mandated reporter does not know the identity of the victim.) 7 We have had several members state that child protective services or law enforcement indicated similar interpretations of their mandated duties. Under this interpretation, AB 1775 has had no effect on a therapist s reporting requirement. Definition of Exchange Some advocacy groups have defined the word exchange very liberally within the definition of sexual exploitation thus creating a duty to report the general accessing of child pornography on the Internet. For example, pre-ab 1775, if a client told his/her therapist he/she met a friend and exchanged hard copies of child pornography photos, the letter of the law read that a mandatory report was required for an exchange of images. However with the advent of the Internet, the word exchange has taken on a whole new meaning. For instance, it is not uncommon for someone simply accessing child pornography to enter into chat rooms or sites that automatically upload the viewer s own hard-drive stored or cached images (unbeknownst to them) thereby exchanging photos or videos with others. Under this interpretation of the law, AB 1775 simply reinforced pre-ab 1775 reporting requirements. 8 Creation and Distribution Only There is also a belief that the sexual exploitation mandate was reserved merely for those who created or routinely distributed child pornography, and the statute s words like duplicate or exchange weren t meant for day-to-day viewers of child pornography but only to child pornographer s and distributor s technological functions. Under this interpretation, AB 1775 would be viewed as a large expansion to a mandatory reporter s requirements. A person's interpretation of the wording in the various CANRA statutes dictates whether there has been a significant change to the reporting requirements for therapists. What if I don t want to make the mandatory report? Of course there is fear of a chilling effect on therapy any time a therapist makes any kind of mandatory report. When the original CANRA laws were written in 1980, this was one of the biggest concerns of the sweeping law. As indicated above, while conversations with law enforcement reveal their belief that not much will change under AB 1775 no one can know for sure what result will ensue from a mandatory report. We also remind therapists to include any mitigating factors in their mandatory reporting. While we recommend therapists follow the

6 law, and adhere to their reporting duties, ultimately the decision of whether to report is up to each individual. We simply remind therapists that failure to make a mandatory report can result in a misdemeanor, fine, or being held criminally responsible for any resulting abuse arising from the failure to report. Do I have to report my teenage client for sexting a sexual photo/video of themselves to a significant other? Mandated reporters have always had a requirement to report the creation, distribution, or exchange of child pornography, as well as the persuasion or coercion of a minor to engage in obscene sexual conduct. 9 However, the sexting culture is new territory for both mental health and child protection and as such there are no consistent guidelines for handling this type of behavior. Sexting a photo of oneself (if the image is of a minor engaged in an act of obscene sexual conduct), is the creation and distribution of child pornography, however, there is argument whether one can sexually exploit oneself. Given this grey area, therapists should review the surrounding circumstances was the minor coerced to send the photo? How young is the minor? If the facts surrounding this issue lead the therapist to believe this child is being exploited or coerced, a report should be made; if, however, there doesn t seem to be any coercion or exploitation, there is more room for argument of whether a report is required. Forwarding an image received is the distribution of child pornography. Therefore, simply receiving a sexting photo would not be a mandatory report given the recipient unknowingly received the image. However, if that same recipient encouraged the minor to take and send a sexy naked photo, that would be the persuasion and/or coercion of a minor to engage in obscene sexual conduct, and as such we believe a mandatory report. Similar to the mandatory reporting of oral sex between minors, we recognize that some therapists ignore this mandate however, we caution members to use their best judgment in these situations and recognize that: a) under the letter of the law, sexting is often a mandatory report; and b) if sexting has occurred and there is possible coercion and/or disparate ages involved, this should mandate not be ignored. As an aside, we have spoken to many members who have reported sexting, and frequently CPS or law enforcement has not accepted such reports. Not surprisingly, we are starting to hear of more and more states introducing legislation surrounding the topic of sexting we will likely see legislation in California on this topic in the next few years. What does the future hold for psychotherapists and their clients in this area? Truthfully, it is unknown. With the increase in the proliferation, access, and usage of child pornography, politicians and law enforcement are being pressured to address child sexual abuse; while at the same time, there exists conflicting opinions amongst mental health providers as to the best remedies to address this situation for all involved. The definition of

7 sexual exploitation was amended to address a confusing body of law with which therapists, child advocates, law enforcement and attorneys have long struggled. It is likely we will continue to see this particular body of law be additionally clarified in the years to come. As this body of law unfolds, CAMFT will continue to keep the membership aware of any updates or changes. 1 "Sexual exploitation" refers 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. 2 Penal Code section Penal Code section Penal Code section Penal Code section US Attorney Office of Legal Counsel Legal Opinion: Duty to Report Suspected Child Abuse Under 42 USC section (2012) 7 Because this legal opinion was written for only those working on federal lands, it is not legal precedent that the typical California therapist must follow. 8 Interestingly, in the AB 1775 analysis, legislative committee consultant stated in his analysis of the addition of the word download that the bill simply updates a definition that would likely include this action even absent the update. 9 Penal Code section