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California Court of Appeals: No Privacy for Viewing Child Pornography Online

By George Khoury, Esq. on January 11, 2017 | Last updated on March 21, 2019

A recent appellate decision in California is causing a minor stir throughout the mental health treatment community, particularly for those involved in the treatment of sexual addiction or compulsion.

A certified drug and alcohol counselor and two licensed marriage and family therapists in California sought a court declaration protecting the privacy rights of their patients' therapy sessions. All three plaintiffs work with patients that struggle with sexual addiction/compulsion. As a result of a change in California law in 2015, the three are now required to report to law enforcement when their patients disclose having viewed child pornography online. Needless to say, many therapists have been feeling the implications of the new law since it took effect.

While the California courts have disagreed, the plaintiffs assert that being required to report their patients to law enforcement infringes upon their patients' rights to privacy. However, the court of appeals, in deciding this issue found that an individual does not have a right to privacy when they view (possess) child pornography. Additionally, the court found that the legislature specifically intended to make the viewing and possession of child pornography online a mandatory report.

No Privacy for Disclosure

For therapists, patient trust is critical. In reaching their decision, the California Appellate Court recognized that "Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends." Nevertheless, the court also recognized that the "right to privacy must yield in the furtherance of compelling state interests." And, preventing child abuse is a rather compelling state interest.

However, despite seeming to have logical support for invading a patient's right to privacy in this limited circumstance, the court goes on to explain that there actually is no privacy right at all when it comes to viewing or possessing child pornography. That the law "expressly exempts information regarding suspected child abuse or neglect from the psychotherapist - patient privilege." The court notable pointed out that "the protective privilege ends where the public peril begins."

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