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Cal. Law on Mandatory Reporting of Kiddie Porn May (or May Not) Be Unconstitutional

California, like many states, has a mandatory reporting law that requires various people to report child abuse or neglect when it comes to their attention. The Child Abuse and Neglect Reporting Act stems from a law enacted in 1980. It was amended and renamed in 1987.

Among the mandatory reporters are mental health professionals. In 2014, the law was amended again to include, among others, persons who download or stream videos "in which a child is engaged in an act of obscene sexual conduct."
Two marriage and family therapists and a certified drug and alcohol counselor sued to have the statute declared unconstitutional as applied to patients who admit downloading kiddie porn but whom they do not deem to be a danger of committing sexual acts with children themselves.

The California Attorney General and Los Angeles District Attorney defended the law. They filed demurrers, claiming that the complaint fails to state a cause of action. (This is substantially the same as a 12(b)(6) motion in federal court.) The trial court agreed and dismissed the case. The Court of Appeal affirmed.

Today, a bare majority of the California Supreme Court reversed. The court held that the trial judge should not have rejected the case on its face but should have taken evidence. The California Constitution, unlike the federal, includes a right to privacy explicitly stated in the text. The majority held that the therapists "have asserted a cognizable privacy interest" and "the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward."

And what exactly is the burden? How much justification is "sufficient"? The court says, "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." Thanks a heap. That's a lot of help. They might as well have said, "Superior Court and Court of Appeal, you try and decide this case. We will tell you later if you used the right standard. Maybe."

The dissent maintains that the 2014 amendment was merely a technical update made to address new ways of committing the same kind of conduct that was reportable all along. Given that it has been an exception to therapist-patient confidentiality the whole time, no reasonable expectation of privacy is invaded.

The 4-3 split is unusual in the California Supreme Court. In recent years, that court has maintained a high degree of cohesion, even in controversial cases. Is that cohesion going to come unglued? We will have to wait and see.

I think the dissent has the better of the constitutional argument. As a matter of policy, I can see an argument for maintaining confidentiality in this situation. The goal is to reduce the market for child pornography, reducing the incentive to make it and abuse children in the process. That reduction may be better achieved by encouraging the watchers to seek therapy and extending confidentiality for that purpose. But that kind of policy-making is for the legislature, not the judiciary.

The case is Mathews v. Becerra, No. S240156.

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