Mathews v. Becerra

IN THE SUPREME COURT OF
CALIFORNIA
DON L. MATHEWS et al.,
Plaintiffs and Appellants,
v.
XAVIER BECERRA, as Attorney General, etc., et al.,
Defendants and Respondents.
S240156
Second Appellate District, Division Two
B265990
Los Angeles County Superior Court
BC573135
December 26, 2019
Justice Liu authored the opinion of the Court, in which
Justices Cuéllar, Kruger, and Groban concurred.
Chief Justice Cantil-Sakauye filed a dissenting opinion, in
which Justices Chin and Corrigan concurred.
MATHEWS v. BECERRA
S240156
Opinion of the Court by Liu, J.
The Child Abuse and Neglect Reporting Act is a
comprehensive statute designed to protect children from abuse
and neglect. (Pen. Code, § 11164 et seq.; all undesignated
statutory references are to this code.) The statute designates a
list of “mandated reporters” who have an affirmative duty to
make a report to law enforcement or an appropriate child
protective agency “whenever the mandated reporter, in the
mandated reporter’s professional capacity or within the scope of
the mandated reporter’s employment, has knowledge of or
observes a child whom the mandated reporter knows or
reasonably suspects has been the victim of child abuse or
neglect.” (§ 11166, subd. (a); see § 11165.7.) Failure to fulfill
this duty is a misdemeanor and may result in the suspension or
revocation of a professional license. (§ 11166, subd. (c); Bus. &
Prof. Code, § 4982, subd. (w).) Mandated reporters include
psychiatrists, psychologists, marriage and family therapists,
clinical social workers, professional clinical counselors, alcohol
and drug counselors, and other health professionals. (§ 11165.7,
subd. (a)(21), (38).)
The term “ ‘child abuse or neglect’ ” in the reporting
statute includes “sexual abuse as defined in Section 11165.1.”
(§ 11165.6.) Section 11165.1, in turn, defines sexual abuse to
include “ ‘sexual exploitation.’ ” (§ 11165.1, subd. (c).) In 2014,
the Legislature expanded the definition of sexual exploitation in
the reporting statute to cover any person who knowingly
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“downloads,” “streams,” or electronically “accesses” child
pornography. (§ 11165.1, subd. (c)(3), as amended by Stats.
2014, ch. 264, § 1 (hereafter section 11165.1(c)(3)).)
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.
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(Keller & Dance, The Internet Is Overrun With Images of Child
Sexual Abuse. What Went Wrong?, N.Y. Times (Sept. 28, 2019);
see Paroline v. United States (2014) 572 U.S. 434, 440 (Paroline)
[“Because child pornography is now traded with ease on the
Internet, ‘the number of still images and videos memorializing
the sexual assault and other sexual exploitation of children,
many very young in age, has grown exponentially.’ ”].)
Technology has amplified the devastating nature and
magnitude of child pornography, resulting in harms to children
that are incalculably severe and enduring. (In re Grant (2014)
58 Cal. 4th 469, 477–478 (Grant).)
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 (§ 311.11),
and such conduct itself implicates no cognizable privacy
interest. The narrow question here is whether mandatory
reporting of patients who admit to possessing or viewing child
pornography in the course of voluntary psychotherapy to treat
sexual disorders implicates a cognizable privacy interest.
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.” ’ ” (Centinela Freeman Emergency
Medical Associates v. Health Net of California, Inc. (2016) 1
Cal.5th 994, 1010 (Centinela).) In making this determination,
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we must accept the facts pleaded as true and give the complaint
a reasonable interpretation. (Ibid.)
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
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threat of doing so. All statutory exceptions to the
psychotherapist-patient privilege, including the dangerous
patient exception (Evid. Code, § 1024), still apply. Finally,
because plaintiffs may proceed on their state constitutional
claim, we have no need to reach plaintiffs’ privacy claim under
the federal Constitution.
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” (§ 11166, subd. (a)), a term
that includes “sexual abuse” (§ 11165.6), which in turn includes
“ ‘sexual exploitation’ ” (§ 11165.1(c)). From 1987 to 2014,
CANRA defined “sexual exploitation” to apply to “[a]ny person
who depicts a child in, or who knowingly develops, duplicates,
prints, or exchanges, any film, photograph, video tape, negative,
or slide in which a child is engaged in an act of obscene sexual
conduct,” with exceptions for law enforcement and other persons
not relevant here. (Former § 11165.1, subd. (c)(3), as enacted by
Stats. 1987, ch. 1459, § 5, p. 5518.)
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,”
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with the same exceptions as before. (§ 11165.1(c)(3), italics
added.) According to a Senate Bill analysis, “[t]he purpose of
[Assembly Bill 1775] 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,
Child Abuse: Mandatory Reporting, Rep. on Assem. Bill No.
1775 (2013–2014 Reg. Sess.) as amended May 13, 2014, p. 1
(Senate Committee Report).)
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
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or the distribution of child pornography to others. These
patients typically have no prior criminal history, have never
expressed a sexual preference for children, and are active and
voluntary participants in psychotherapy to treat their particular
sexual disorder, which often involves compulsive viewing of
pornography of all kinds on the Internet.” Plaintiffs “have also
treated patients seeking treatment because of sexual disorders
involving a sexual attraction to children (including pedophilia),
who have admitted to downloading and viewing child
pornography, but whom [plaintiffs], based on their training and
experience, do not believe present a serious danger of engaging
in ‘hands-on’ sexual abuse or exploitation of children or the
active distribution of child pornography to others. These
patients typically have no prior criminal record . . . , no access
to children in their home or employment, no history of ‘hands-
on’ sexual abuse or exploitation of children, and often express
disgust and shame about their sexual attraction to children for
which they are actively and voluntarily seeking psychotherapy
treatment.” Plaintiffs contend that Assembly Bill 1775 requires
them to report these patients in violation of the patients’
constitutional right to privacy.
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
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continue, are unlikely to continue providing the full disclosure
of intimate details that Plaintiffs need to provide effective
therapy. Similarly, persons who are seeking psychotherapy for
serious sexual disorders may refuse such therapy once Plaintiffs
inform them during intake screening that they are required to
report any viewing of child pornography or, if the persons have
already described such child pornography viewing as a reason
for seeking treatment, that Plaintiffs are now obligated to report
them before any therapy even begins. [Citations.] Enforcement
of A.B. 1775 will also deter existing or potential patients who
have serious sexual disorders — including sexual attraction to
children — from obtaining needed psychotherapy, despite the
lack of any evidence that they have engaged in ‘hands-on’ or
‘contact’ sexual abuse of children.”
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
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violate the right to privacy under the California Constitution
because there is neither a fundamental privacy right to possess
or view child pornography nor a reasonable expectation of
absolute privacy in psychotherapeutic treatment or in
discussing illegal conduct with a therapist, and the mandated
reports do not amount to a serious invasion of privacy in any
event. The court also held that Assembly Bill 1775 does not
violate the Fourteenth Amendment because there is no federal
constitutional right to informational privacy and because, even
if there were such a right, the applicable test would be rational
basis review and Assembly Bill 1775 would pass muster.
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 constitutional 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
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because it substantially furthered the state’s “ ‘legitimate and
important competing interest[]’ ” in “protecti[ng] . . . children
from sexual exploitation on the Internet.” (Id. at p. 366.)
Finally, the Court of Appeal agreed with the trial court that
there is no general right to informational privacy under the
federal Constitution and that even if such a right existed,
rational basis review would apply and Assembly Bill 1775 would
easily survive. (Id. at pp. 367–368.)
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 § 11165.1,
subd. (c)(3).) This definition came from a 1984 statute (Stats.
1984, ch. 1613, § 2, subd. (b)(2)(C), p. 5719) enacted “to bring
California’s child abuse reporting law into compliance with
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recent changes in the federal Child Abuse Prevention and
Treatment [and Adoption Reform Act of 1978, Pub.L. No. 95-266
(Apr. 24, 1978) 92 Stat. 204]” (Assem. Conc. Sen. Amends. to
Assem. Bill No. 2709 (1983–1984 Reg. Sess.) as amended Aug.
28, 1984, p. 2). Federal regulations required states, as a
condition of receiving federal aid for programs addressing child
abuse and neglect, to have or enact mandatory reporting laws
that cover “ ‘sexual exploitation,’ ” defined to “include[] . . .
allowing, permitting, encouraging or engaging in the obscene or
pornographic photographing, filming, or depicting of a child for
commercial purposes as those acts are defined by State law.” (45
Fed.Reg. 35796 (May 27, 1980) [proposed rule implementing 45
C.F.R. §§ 1340.2, 1340.13(a)(1)]; see also 48 Fed.Reg. 3698–3699
(Jan. 26, 1983) [final rule].)
The 1984 statute, in turn, borrowed the definition of
“sexual exploitation” from a 1981 statute that made sexual
exploitation an offense under Penal Code section 311.3.
(Stats. 1981, ch. 1056, § 1, p. 4080.) The history of the 1981
statute indicates that “sexual exploitation” covered the
production and distribution of child pornography, but not simple
possession or viewing. (Deputy Atty. Gen. Raye, Sponsor of Sen.
Bill. No. 331 (1981–1982 Reg. Sess.), letter to Sen. Stern, Apr. 3,
1981; Judicial Council of Cal., Rep. on Sen. Bill No. 331 (1981–
1982 Reg. Sess.) Aug. 13, 1981, p. 2.) In 1989, the Legislature
enacted a separate statute criminalizing the knowing possession
or control of child pornography. (§ 311.11, added by Stats. 1989,
ch. 1180, § 2, p. 4568.) But between 1989 and 2014, despite
making other amendments to section 11165.1(c)(3), the
Legislature did not alter the reporting statute to include simple
possession or viewing of child pornography within the ambit of
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reportable offenses. (See Stats. 2000, ch. 287, § 21; Stats. 1997,
ch. 83, § 1.)
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.” (§ 11165.1(c)(3).) These terms encompass a wide range
of conduct, from viewing a video online to saving a copy of a file
available on the Internet to transferring a file from a memory
cloud to a computer hard drive.
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 [possession 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)
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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.)
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Third, we decline to address plaintiffs’ claim that the 2014
amendment violates the privacy rights of minors who engage in
consensual sexting (e.g., sending sexually explicit images or
videos by smartphone). The complaint does not allege that any
of the plaintiffs treat minors who engage in consensual sexting
or that any of the plaintiffs, in their roles as therapists and
counselors, anticipate having to report such minors. We
therefore express no view on the constitutionality of the 2014
amendment as applied to consensual sexting by minors.
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.” (Cal. Const., art. I,
§ 1; see American Academy of Pediatrics v. Lungren (1997) 16
Cal. 4th 307, 326 (American Academy of Pediatrics) (plur. opn. of
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George, C.J.) [“[I]n many contexts, the scope and application of
the state constitutional right of privacy is broader and more
protective of privacy than the federal constitutional right of
privacy as interpreted by the federal courts.”].) The word
“privacy” was added to the state Constitution by a 1972 ballot
initiative. (Lewis v. Superior Court (2017) 3 Cal.5th 561, 569
(Lewis).) The ballot materials urging adoption of the initiative
stated: “ ‘The right of privacy is the right to be left alone. It is
a fundamental and compelling interest. It protects our homes,
our families, our thoughts, our emotions, our expressions, our
personalities, our freedom of communion and our freedom to
associate with the people we choose. . . . [¶] Fundamental to
our privacy is the ability to control circulation of personal
information.’ ” (White v. Davis (1975) 13 Cal. 3d 757, 774
[quoting proponents’ statement in 1972 election brochure].) The
inclusion of privacy among the inalienable rights recognized by
our state Constitution “ ‘creates a legal and enforceable right of
privacy for every Californian.’ ” (Ibid.)
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 because it substantively furthers one or more
countervailing interests. The plaintiff, in turn, may rebut a
defendant’s assertion of countervailing interests by showing
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there are feasible and effective alternatives to defendant’s
conduct which have a lesser impact on privacy interests.” (Id.
at pp. 39–40.) The standard for evaluating the justification for
a privacy invasion depends on “the specific kind of privacy
interest involved and the nature and seriousness of the invasion
and any countervailing interests.” (Id. at p. 34.) “Where the
case involves an obvious invasion of an interest fundamental to
personal autonomy, . . . 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.)
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
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context of intercollegiate athletic activity and the normal
conditions under which it is undertaken” (ibid.), and we
concluded that their expectation of privacy is “diminished” in
that setting but “not thereby rendered de minimis” (id. at p. 43).
The first threshold element thus examines the basic nature of
the privacy interest at a general level, while the second element
asks whether an expectation of privacy is reasonable in the
particular setting or context at issue.
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 a
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. (Evid. Code, § 1014 [recognizing a
patient’s “privilege to refuse to disclose, and to prevent another
from disclosing, a confidential communication between patient
and psychotherapist”]; see id., § 1014, subd. (c) [the patient’s
privilege may be claimed by “[t]he person who was the
psychotherapist at the time of the confidential communication”];
Gonzales, at pp. 371–372 [discussing history of the privilege].)
In addition, “[t]he psychotherapist-patient privilege has been
recognized as an aspect of the patient’s constitutional right to
privacy. (Cal. Const. art. I, § 1; [citations].)” (People v.
Stritzinger (1983) 34 Cal. 3d 505, 511 (Stritzinger); see People v.
Hammon (1997) 15 Cal. 4th 1117, 1127.)
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Opinion of the Court by Liu, J.
The Law Revision Commission’s comment on Evidence
Code section 1014 explains the scope and purpose of the
privilege: “Psychoanalysis and psychotherapy are dependent
upon the fullest revelation of the most intimate and
embarrassing details of the patient’s life. . . . Unless a patient
or research subject 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 or complete
and accurate research depends.” (Cal. Law Revision Com. com.,
reprinted at Deering’s Ann. Evid. Code (2004 ed.) foll. § 1014,
p. 217.) Similarly, this court “ha[s] recognized the contemporary
value of the psychiatric profession, and its potential for the relief
of emotional disturbances and of the inevitable tensions
produced in our modern, complex society. [Citations.] That
value is bottomed on a confidential relationship; but the doctor
can be of assistance only if the patient may freely relate his
thoughts and actions, his fears and fantasies, his strengths and
weaknesses, in a completely uninhibited manner.” (Stritzinger,
supra, 34 Cal.3d at p. 514.) We recently observed that where “a
private individual voluntarily and confidentially seeks
treatment from a psychotherapist[,] . . . the fact that treatment
has been sought may itself be considered confidential
information.” (Gonzales, supra, 56 Cal.4th at p. 375, fn. 7.)
The Evidence Code contains various exceptions that limit
the applicability of the psychotherapist-patient privilege. (Evid.
Code, §§ 1016–1027.) “[F]or reasons of policy,” such exceptions
must be “construe[d] narrowly,” and the privilege must be
“broadly construed in favor of the patient.” (Stritzinger, supra,
34 Cal.3d at pp. 511, 513.) In Stritzinger, the defendant was
convicted of molesting his stepdaughter, Sarah, based on
testimony provided by a clinical psychologist, Dr. Walker. In a
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counseling session with Dr. Walker, Sarah had revealed sexual
activity with her stepfather. (Id. at p. 509.) The next day, Dr.
Walker met with the defendant, who made statements
confirming the incidents that Sarah had revealed to Dr. Walker.
(Ibid.) We held that Sarah’s statements to Dr. Walker “were not
privileged because Evidence Code 1027 provides an exception
when, as here, the patient is under 16 years of age and the
psychotherapist has ‘reason to believe that the patient has been
the victim of a crime and that disclosure of the communication
is in the best interest of the child.’ ” (Id. at p. 513.) But we
further held that the defendant’s communications with Dr.
Walker were “redundant” and, for that reason, did not fall
within the child abuse reporting exception to the
psychotherapist-patient privilege. (Id. at p. 514; see ibid. [“In
this case, Dr. Walker reported his suspicion of child abuse
following his consultation with Sarah . . . . He was not then
required to make a second report of the same incidents, based
on defendant’s subsequent redundant communications.”].) In
adopting this narrow construction of the child abuse reporting
exception, we said, “[I]t is impossible to conceive of any
meaningful therapy” if the patient is aware “at the outset that
[the psychotherapist] will violate his confidence and will inform
law enforcement of their discussions.” (Ibid.)
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 (Evid. Code, § 1018) and for
situations where “[t]he psychotherapist has reasonable cause to
believe that [a] patient [under age 16] has been the victim of a
crime and that disclosure . . . is in the best interest of the child”
(id., § 1027, subd. (b)). But plaintiffs do not allege their patients
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Opinion of the Court by Liu, J.
are children under age 16 who are victims of crimes. And there
is no basis to infer that plaintiffs’ patients have sought
psychotherapy in order to aid criminal conduct or to escape
detection. According to the complaint, the patients “are active
and voluntary participants in psychotherapy to treat their
particular sexual disorder.”
In addition, the Attorney General and the District
Attorney contend that the dangerous patient exception means
plaintiffs’ patients have no cognizable privacy interest. (See
Evid. Code, § 1024 [“There is no [psychotherapist-patient]
privilege . . . if the psychotherapist has reasonable cause to
believe that the patient is in such mental or emotional condition
as to be dangerous to himself or to the person or property of
another and that disclosure of the communication is necessary
to prevent the threatened danger.”].) Our case law has
recognized that downloading, streaming, or accessing child
pornography is harmful conduct. (See Grant, supra, 58 Cal.4th
at pp. 477–478, 480.) But no court has held that patients who
have admitted to downloading or viewing child pornography
categorically fall within the ambit of Evidence Code section
1024.
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. (Evid. Code, § 1024.) In
Gonzales, we rejected the contention that a trial court could
review a defendant’s psychological evaluations and
independently find probable cause to believe the defendant is
dangerous to himself or others within the meaning of Evidence
Code section 1024. (See Gonzales, supra, 56 Cal.4th at pp. 379–
382.) We explained that the exception “come[s] into play only
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Opinion of the Court by Liu, J.
when the therapist has reasonable cause to believe and actually
believes that the patient is dangerous.” (Id. at p. 380, fn. 12,
italics added; see Tarasoff v. Regents of University of California
(1976) 17 Cal. 3d 425, 431 (Tarasoff) [“When a therapist
determines, or pursuant to the standards of his profession
should determine, that his patient presents a serious danger of
violence to another, he incurs an obligation to use reasonable
care to protect the intended victim against such danger.”].) In
this case, plaintiffs’ complaint makes clear that they do not
believe the patients whose privacy is at issue pose “a serious
danger” (Tarasoff, at p. 431) to themselves or to others.
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 (Evid.
Code, § 1024), and such a communication is therefore
reportable. (See Tarasoff, supra, 17 Cal.3d at p. 431.) Here, the
question presented concerns the mandatory reporting of
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Opinion of the Court by Liu, J.
patients not believed to pose a serious danger of either hands-
on abuse or active distribution of child pornography.
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. (§ 311.11.) The Court of Appeal
emphasized, and we agree, that “possession of Internet child
pornography does not involve any ‘vital privacy interest.’ ”
(Mathews, supra, 7 Cal.App.5th at p. 354, quoting People v.
Luera (2001) 86 Cal. App. 4th 513, 522.) But plaintiffs do not
contend that possessing or viewing child pornography itself
implicates a privacy interest. They contend that privacy
interests arise when their patients admit to possessing or
viewing child pornography in the context of voluntary
psychotherapy to treat sexual disorders.
The Court of Appeal held that there can be no reasonable
expectation of privacy in information subject to mandatory
reporting under CANRA (§ 11171.2, subd. (b)) because the
Legislature has made an exception to the psychotherapist-
patient privilege for such information. (Mathews, supra, 7
Cal.App.5th at p. 357.) The Attorney General echoes this
assertion, arguing that although “the precise statutory
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Opinion of the Court by Liu, J.
definition of reportable abuse and neglect has varied over time,”
“the fact remains that information suggesting conduct that
harms children—including certain acts of obtaining child
pornography—has been reportable and expressly exempted
from the psychotherapist-patient privilege for thirty years.”
“Against that legal and cultural backdrop,” he contends,
patients have no reasonable expectation of privacy when they
reveal in psychotherapy that they have downloaded or viewed
child pornography.
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
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Opinion of the Court by Liu, J.
consent for medical procedures relating to sexuality and
procreation.” (Id. at pp. 374, 375 (conc. opn. of Kennard, J.).)
Here, it is true that former section 11165.1, subdivision (c)(3)
made a broad range of child pornography offenses subject to
mandatory reporting. But plaintiffs challenge CANRA only to
the extent that it reaches simple possession or viewing of child
pornography. Such conduct became subject to mandatory
reporting as a result of the 2014 amendment whose
constitutionality is at issue here.
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 Evidence Code sections
1016 to 1027 are specific and must be “construe[d] narrowly.”
(Stritzinger, supra, 34 Cal.3d at p. 513.) Although there is an
exception for situations where a patient has sought the services
of a psychotherapist to aid the commission of a crime or to
escape detection (Evid. Code, § 1018), there is no general
exception for admission of a crime. Indeed, when the
psychotherapist-patient privilege was codified, the Law
Revision Commission said the privilege would “appl[y] in all
proceedings,” unlike the “physician-patient privilege[, which]
does not apply in criminal proceedings.” (Cal. Law Revision
Com. com., reprinted at Deering’s Ann. Evid. Code, supra, foll.
§ 1014, p. 216; see ibid. [“This difference in the scope of the two
privileges is based on the fact that the Law Revision
Commission has been advised that proper psychotherapy often
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Opinion of the Court by Liu, J.
is denied a patient solely because he will not talk freely to a
psychotherapist for fear that the latter may be compelled in a
criminal proceeding to reveal what he has been told.”].) In
Gonzales, we held in the context of a commitment proceeding
under the Sexually Violent Predator Act (Welf. & Inst. Code,
§ 6600 et seq.) that the privilege barred the admission of
statements by a parolee who, in the course of psychotherapy
undertaken as a condition of parole, admitted he had molested
up to 16 children. (Gonzales, supra, 56 Cal.4th at pp. 364–365,
372–383.)
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 Colo. Rev. Stat. §§ 18-
6-403, 19-3-304; Del. Code Ann. tit. 11, § 1111; id. tit. 16, § 903;
Miss. Code Ann. §§ 97-5-33, 97-5-51; Tenn. Code Ann. §§ 37-1-
605, 39-17-1003; Utah Code Ann. §§ 62A-4a-403, 76-5b-201; Vt.
Stat. Ann. tit. 33, §§ 4912, 4913.) Arizona law includes knowing
possession of child pornography within its definition of “sexual
exploitation of a minor” (Ariz. Rev. Stat. Ann. § 13-3553) but
allows a psychotherapist to “withhold the reporting of [a]
statement” by a patient voluntarily seeking sex offender
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Opinion of the Court by Liu, J.
treatment if the psychotherapist “determines it is reasonable
and necessary to accomplish the purposes of the treatment” (id.,
§ 13-3620). And federal law requires mental health
professionals engaged in certain activities on federal land or in
federal facilities to report the fact that a patient has viewed
child pornography. (34 U.S.C. § 20341; see Off. of Legal
Counsel, U.S. Dept. of Justice, Duty to Report Suspected Child
Abuse Under 42 U.S.C. § 13031 (May 29, 2012) pp. 10–13.)
Among all other jurisdictions, it appears that none has
interpreted its CANRA equivalent to cover simple possession or
viewing of child pornography.
Apart from mandatory reporting laws, 10 states have a
statutory exception to the psychotherapist-patient privilege for
matters concerning child abuse or neglect. (See Kan. Stat. Ann.
§ 65-5810; La. Code Evid. Ann. art. 510; Mich. Comp. Laws
§ 333.16281; Mo. Ann. Stat. § 210.140; Neb. Rev. Stat. Ann.
§ 27-504; Nev. Rev. Stat. Ann. § 49-213; N.C. Gen. Stat. Ann.
§ 8-53.3; Or. Rev. Stat. Ann. § 419B.040; Wis. Stat. Ann.
§ 905.04; Wyo. Stat. Ann. § 33-27-123.) In these jurisdictions,
psychotherapists may reveal otherwise privileged
communications not only to law enforcement or child welfare
agencies in compliance with reporting laws, but also when
relevant to certain administrative or judicial proceedings. (See,
e.g., State ex rel. Juvenile Dept. v. Spencer (Or. 2005) 108 P.3d
1189, 1192–1193 [finding no privilege where the defendant was
charged with child abuse in juvenile court proceedings]; State v.
McMillion (Neb.Ct.App. 2016) 875 N.W.2d 877, 897–898
[finding no privilege where the defendant was charged with
sexual assault of a child]; State v. Hyder (Wn.Ct.App. 2011) 244
P.3d 454, 460–462 [finding no privilege where the defendant
was charged with child molestation and incest]; In Interest of
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Opinion of the Court by Liu, J.
S.J. (Mo.Ct.App. 1993) 849 S.W.2d 608, 610–611 [finding no
privilege in a parental termination proceeding where child
abuse was alleged].) Although these statutes have often been
applied to situations involving hands-on abuse or neglect, we are
unaware of any case law in these jurisdictions that has
construed a child abuse or neglect exception to cover simple
possession or viewing of child pornography.
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
section 11165.1(c)(3), the reporting statute did not cover simple
possession or viewing of child pornography. And today, in the
vast majority of states, neither legislative enactments nor case
law indicates that a patient’s admission of such conduct is
subject to mandatory reporting or covered by some other
exception to the norm of confidentiality that “is vitally
important to the successful operation of psychotherapy.” (In re
Lifschutz (1970) 2 Cal. 3d 415, 422 (Lifschutz).)
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 admitted 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
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Opinion of the Court by Liu, J.
authorities, and that they did so report. Either finding might
bear on relevant customs and practices. But we have no such
facts before us at this stage of the litigation. We conclude that,
for purposes of demurrer, plaintiffs have established that their
patients have a reasonable expectation of privacy in admissions
during voluntary psychotherapy that they have viewed or
possessed child pornography.
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 section
11165.1, subdivision (c)(3). (Ante, at pp. 10–12.)
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 section 11165.1,
section (c)(3), such conduct has long been reportable, and a
patient can have no reasonable expectation of privacy in such
disclosures. (Id. at p. 10; see id. at pp. 6–7, 9–10.)
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We express no view on whether the term “duplicates” as
used in CANRA when it was enacted in 1987 — before online
child pornography was considered a serious problem —
encompasses downloading or streaming a file from the Internet.
Notably, the dissent cites no California authority that has
interpreted the term “duplicates” in CANRA to include
downloading or streaming. (Dis. opn., post, at pp. 9–10 [citing
one federal case from New Jersey, a dictionary, and a law review
article].) And to the extent the dissent relies on statements by
legislators who passed the 2014 amendment (id. at pp. 6–7),
those views “ ‘cannot dictate the proper construction of [CANRA]
as it stood’ before that amendment.” (Ante, at p. 12.)
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.
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In Lewis, we concluded that the practice of sharing patients’
personal information under a separate statute made the
reasonable expectation of privacy in their prescription records
“less robust.” (Lewis, supra, 3 Cal.5th at p. 575.) Nevertheless,
we held that patients retain a reasonable expectation of privacy
in their records. (Ibid.) Similarly, in International Federation,
we considered the long-standing practice of disclosing public
employees’ salaries as a relevant factor in deciding whether the
employees have a reasonable expectation of privacy.
(International Federation, supra, 42 Cal.4th at p. 331.) But we
also surveyed the widespread practice of disclosing public
employee salaries across various federal, state, and local
governments before concluding that the employees do not have
a reasonable expectation of privacy. (Id. at p. 332.) Our case
law does not support the dissent’s sole reliance on a purported
long-standing practice or requirement of disclosure to find no
reasonable expectation of privacy for the vast majority of
plaintiffs’ patients.
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);
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Opinion of the Court by Liu, J.
and “it is extremely unlikely that a patient will disclose simply
possessing or viewing child pornography online, without also
revealing other reportable conduct” (id. at p. 18–19). None of
these claims is supported by evidence; each is conjecture. At this
stage of the case, we must “accept as true all properly pleaded
facts” (Novartis, supra, 4 Cal.5th at p. 156) and “ ‘ “give the
complaint a reasonable interpretation” ’ ” (Centinela, supra, 1
Cal.5th at p. 1010). Plaintiffs’ complaint states that their
challenge involves patients who admit to possessing or viewing
child pornography; what therapists will “almost certainly”
suspect from such admissions and whether such admissions are
“frequently” accompanied by other disclosures are factual
matters for the parties to litigate. The standard of review on
demurrer does not authorize us to supplement the complaint
with our own factual claims.
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
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child pornography. Under the statute, a psychotherapist must
immediately make a report by telephone to a police department,
sheriff’s department, county probation department, or the
county welfare department upon learning that a patient has
possessed or viewed child pornography. (§§ 11165.9, 11166,
subd. (a).) The psychotherapist must then make a written
report within 36 hours. (§ 11166, subd. (a).) The report must
include “the information that gave rise to the reasonable
suspicion” that the patient has possessed or viewed child
pornography and “the source or sources of that information.”
(§ 11167, subd. (a).) The report must also include “the name,
address, telephone number, and other relevant personal
information” about the patient if any of that information is
known. (Ibid.) If the psychotherapist fails to make such a
report, he or she is subject to criminal prosecution and
professional discipline. (§ 11166, subd. (c); Bus. & Prof. Code,
§ 4982, subd. (w); Cal. Code Regs., tit. 16, § 1397.1.)
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. (§ 11166, subds. (j), (k); see B.H. v.
County of San Bernardino (2015) 62 Cal. 4th 168, 181–185.) The
statute then requires that “ ‘an investigation be conducted on
every report received.’ ” (B.H., at p. 183.) The reporting statute
encourages the agencies to continue to share information with
each other throughout the investigation. (§ 11166.3, subd. (a).)
If the investigation substantiates the initial report, the report
must be forwarded to the Department of Justice, which files the
information in the Child Abuse Central Index. (§ 11170,
subd. (a)(1)–(3).) The information in the database must then be
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made available to prosecutors, adoption agencies, government
agencies conducting certain background checks, and other
agencies that regulate persons who may have contact with
children. (§ 11170, subd. (b).)
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. (§§ 290,
311.11.) The possibility of criminal prosecution carries with it a
significant potential for further public disclosures. Indeed, this
is not an area in which government agents can or should be
expected to keep the information to themselves. (See Lewis,
supra, 3 Cal.5th at pp. 576–577.)
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
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have alleged a serious invasion of privacy under the third
threshold inquiry of the Hill framework.
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
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MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
Kirchmeyer v. Phillips (2016) 245 Cal. App. 4th 1394 concluded
that “[t]he psychotherapist-patient privilege is a kind of privacy
interest that may be overcome only on a showing of a compelling
state interest.” (Id. at p. 1404.)
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 article I, section 1 [of the
California Constitution] must be overcome by a ‘compelling
interest’ ” (Hill, supra, 7 Cal.4th at pp. 34–35). More recently,
we said it is erroneous to adopt a “de facto starting assumption
that such an egregious invasion [requiring a compelling interest
as justification] is involved in every request for discovery of
private information. Courts must instead place the burden on
the party asserting a privacy interest to establish its extent and
the seriousness of the prospective invasion, and against that
showing must weigh the countervailing interests the opposing
party identifies, as Hill requires. What suffices to justify an
invasion will . . . vary according to the context. 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.)
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
35
MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
authorization before having an abortion “unquestionably
impinges upon ‘an interest fundamental to personal
autonomy.’ ” (American Academy of Pediatrics, supra, 16
Cal.4th at p. 340 (plur. opn. of George, C.J.).) In Hill, we
similarly said that cases dealing with the “freedom from
involuntary sterilization or the freedom to pursue consensual
familial relationships” involve “obvious invasion[s] of an interest
fundamental to personal autonomy.” (Hill, supra, 7 Cal.4th at
p. 34.)
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., Ariz.
36
MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
Rev. Stat. Ann. § 32-2085 [“The confidential relations and
communication between a client or patient and a psychologist
licensed pursuant to this chapter . . . are placed on the same
basis as those provided by law between an attorney and client.”];
see also Ala. Code § 34-26-2; Ga. Code Ann. § 43-39-16; Idaho
Code Ann. § 54-2314; Kan. Stat. Ann. § 65-5810; Mont. Code
Ann. § 26-1-807; N.H. Rev. Stat. Ann. § 329:26; N.J. Stat. Ann.
§ 45:14B-28; N.Y. C.P.L.R. 4507; 42 Pa. Stat. and Cons. Stat.
Ann. § 5944; Tenn. Code Ann. § 63-11-213; Wn. Rev. Code Ann.
§ 18.83.110.) Like the ability of clients to seek advice from
counsel, the ability of psychotherapy patients to seek treatment
to prevent future criminal conduct and to live as law-abiding
members of society implicates a basic interest in self-
determination.
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
37
MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
with harm” and aids efforts to “rescu[e] children from sexual
abuse.”
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
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MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
precedent includes varied assertions on whether mandatory
reporting deters psychotherapy patients from seeking
treatment. (Compare Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12
[dismissing as “entirely speculative” the concern that reporting
of dangerous patients will discourage them from seeking
counseling] with Stritzinger, supra, 34 Cal.3d at p. 514 [“it is
impossible to conceive of any meaningful therapy” if the patient
knows “at the outset that [the therapist] will violate his
confidence and will inform law enforcement of their
discussions”] and Lifschutz, supra, 2 Cal.3d at p. 431 [“ ‘ “It
would be too much to expect [patients] to [reveal intimate
thoughts and behaviors during treatment] if they knew that all
they say . . . may be revealed to the whole world from a witness
stand.” ’ ”].) The dissent relies on cases that cite decades-old
studies and involve reporting requirements not at issue here.
(Dis. opn., post, at pp. 24–25, citing Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 632
[discussing 2000 article on deterrence effects of reporting
potentially violent patients], People v. Wharton (1991) 53 Cal. 3d
522, 558 [discussing deterrence effects of reporting patients
whom psychotherapists believe to be dangerous], Tarasoff,
supra, 17 Cal.3d at p. 440, fn. 12 [discussing 1974 article that
found “little if any empirical data” on deterrence effects of
reporting potentially violent patients], and Lifschutz, at
pp. 426–427 [discussing deterrence effects in context of
“compel[ling] disclosure of only those matters which the patient
himself has chosen to reveal by tendering them in litigation”].)
No court has yet explored the ramifications of the reporting
requirement challenged in this case.
At its core, plaintiffs’ argument is that the reporting
requirement does not further, and may in fact undermine, its
39
MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
intended purpose of protecting children from sexual abuse and
exploitation. If substantiated, this mismatch between means
and ends would render the reporting requirement
unconstitutional under any standard. We thus have no need, in
advance of factual development on this critical issue, to decide
whether the reporting requirement must satisfy the compelling
interest test or a general balancing test.
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
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MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
evidence in evaluating the availability of less intrusive
alternatives (id. at pp. 51–52).
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,
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Opinion of the Court by Liu, J.
at p. 21.) To support this conjecture, the dissent engages in its
own factfinding in disregard of the applicable standard of
review. For example, the dissent cites an opinion of the United
States Department of Justice’s Office of Legal Counsel asserting
that some images of child pornography are “ ‘homemade
recordings’ ” of family members or neighbors “ ‘traceable
through law enforcement investigation to a particular child or
children.’ ” (Id. at pp. 25–26.) But we have no evidence
indicating how often patients who admit to viewing child
pornography also disclose that the images are homemade, how
often such disclosures are successfully traced to a particular
child, or whether deterrence of patients from seeking treatment
outweighs any benefits of reporting such disclosures. Nor does
the dissent mention a 2009 United Nations report cited in
plaintiffs’ complaint, which found that among millions of child
pornography images reviewed in the United States, only 0.01
percent of victims had been identified. (See Najat M’jid Maalla,
Human Rights Council, U.N. Gen. Assembly, Report of the
Special Rapporteur on the sale of children, child prostitution
and child pornography (2009) pp. 15–16.)
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
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MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
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 former section 11165.1, subdivision (c)(3) is constitutionally
valid (plaintiffs appear correct that no case has so held), it is
possible that persons who merely possess or view online child
pornography have characteristics distinct from persons who
knowingly develop, duplicate, print, or exchange child
pornography. As noted, plaintiffs claim that their patients pose
no serious risk of hands-on child abuse; they make no similar
claim about patients who have engaged in conduct covered by
former section 11165.1, subdivision (c)(3). Further, we have no
evidence as to whether all persons subject to mandatory
reporting under section 11165.1(c)(3) are inclined to seek
psychotherapy or are deterred from seeking psychotherapy to
the same degree. On remand, the parties may develop facts that
illuminate whether the balance of factors informing the
constitutional validity of the 2014 amendment is
distinguishable from the balance of factors informing the
validity of other parts of section 11165.1(c)(3).
Second, the Attorney General contends that “whether
expanded reporting obligations or greater therapist-patient
43
MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
confidentiality will better protect children’s safety is a policy
matter for the Legislature to decide.” A similar argument
urging deference to the Legislature’s policy judgment was
considered and rejected in American Academy of Pediatrics,
supra, 16 Cal. 4th 307: “As a general rule, ‘[i]t is not the
judiciary’s function . . . to reweigh the “legislative facts”
underlying a legislative enactment.’ [Citation.] When an
enactment intrudes upon a constitutional right, however,
greater judicial scrutiny is required.” (Id. at pp. 348–349 (plur.
opn. of George, C.J.), fn. omitted.) Judicial review of duly
enacted legislation is a delicate task, and our role is not to
supplant the Legislature’s policymaking role. But when a
statute intrudes on a privacy interest protected by the state
Constitution, it is our duty to independently examine the
relationship between the statute’s means and ends. (Id. at
pp. 349–350.)
V.
Plaintiffs also raise a privacy claim under the due process
clause of the Fourteenth Amendment to the United States
Constitution. Having determined that plaintiffs have stated a
viable privacy claim under the California Constitution and that
a remand for development of an evidentiary record is necessary
to resolve this claim, we have no need at this juncture to reach
plaintiffs’ additional claim under the federal Constitution.
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,
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MATHEWS v. BECERRA
Opinion of the Court by Liu, J.
we have assumed the facts pleaded as true, and we have given
the complaint a reasonable interpretation. Whether plaintiffs
will succeed on the merits after the development of an
evidentiary record remains to be seen, and we express no view
on the ultimate validity of Assembly Bill 1775. Furthermore,
plaintiffs have challenged CANRA’s validity only to the extent
it requires mandatory reporting of patients suspected of simple
possession or viewing of child pornography. We do not question
the validity of other reporting obligations encompassed by
former section 11165.1, subdivision (c)(3). We also note that a
psychotherapist violates no privilege when reporting a patient
whom the psychotherapist believes to be dangerous. (Evid.
Code, § 1024.) And, we repeat, there is no privacy interest in
the underlying conduct at issue here; knowing possession or
control of child pornography is a crime. (§ 311.11.)
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.
45
MATHEWS v. BECERRA
S240156
Dissenting Opinion by Chief Justice Cantil-Sakauye
“ ‘Child pornography harms and debases the most
defenseless of our citizens’ ” (In re Grant (2014) 58 Cal. 4th 469,
477 (Grant) quoting United States v. Williams (2008) 533 U.S.
285, 307), and “causes the child victims continuing harm by
haunting the children in years to come” (Osborne v. Ohio (1990)
495 U.S. 103, 111). Although child pornography is not a new
problem, “smartphone cameras, social media and cloud storage
have made it much worse. [¶] Before the digital age, offenders
had to rely on having photographs developed and sending them
through the postal system, but new technologies have lowered
the barriers to creating, sharing and amassing the material,
pushing it to unprecedented levels.” (Dance & Keller, An
Explosion in Online Child Sex Abuse: What You Need to Know,
N.Y. Times (Sept. 30, 2019) [as of Dec. 20, 2019].)1
To combat the spreading plague of child pornography over
the Internet, in 2014 the Legislature amended the Child Abuse
and Neglect Reporting Act (Pen. Code,2 § 11164 et seq.;
CANRA). This measure clarifies that the statute’s preexisting
1
All Internet citations in this opinion are archived by year,
docket number and case name at .
2
All further statutory references are to the Penal Code
unless otherwise indicated.
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
requirement that psychotherapists report to an appropriate
authority a patient’s admission of duplicating photographs or
videos of child pornography also applies when a patient discloses
having downloaded or otherwise obtained such material over
the Internet. Plaintiffs challenge this amendment — but not the
original disclosure requirement. The majority concedes that as
originally enacted, CANRA requires psychotherapists to
disclose the fact that a patient knowingly “ ‘duplicates’ ” an
image of child pornography (maj. opn., ante, at p. 10), which
occurs whenever a patient copies an online file containing child
pornography to a computer, phone, or other device. Yet without
calling into question the long-standing original requirement, the
majority concludes that plaintiffs have stated a cause of action
that the amendment facially violates their patients’ privacy
rights.
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
2
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
pornography, without more, these statements will as a general
matter still encompass conduct that long has been understood
as triggering the reporting requirement.
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
3
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
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.” (§ 11164, subd. (b).) All persons
participating in the investigation of suspected child abuse or
neglect must “consider the needs of the child victim and . . . do
whatever is necessary to prevent psychological harm to the child
victim.” (Ibid.) To that end, CANRA requires certain
individuals, including psychotherapists, to report incidents of
suspected “child abuse or neglect” to a specified agency.
(§ 11166, subd. (a); see § 11165.7, subd. (a)(21).) The statute
defines the term “child abuse or neglect” to include “sexual
abuse” (§ 11165.6), which in turn includes “sexual exploitation”
(§ 11165.1, subd. (c)). From 1987 to 2014, CANRA defined
“sexual exploitation” as including “[a]ny person who depicts a
child in, or who knowingly develops, duplicates, prints, or
exchanges, any film, photograph, video tape, negative, or slide”
depicting child pornography. (Stats. 1987, ch. 1459, § 5, p. 5518
(former section 11165.1, subd. (c)(3)).)
In the decades after CANRA was enacted, new
technologies appeared that facilitated the production,
4
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
distribution, and consumption of child pornography through
online or digital means. In 2014, responding to this concern, the
Legislature unanimously passed Assembly Bill No. 1775 (2013-
2014 Reg. Sess.) (Assembly Bill 1775). The bill amended
CANRA’s definition of “sexual exploitation” to also apply to any
person who knowingly “downloads, streams, [or] accesses
through any electronic or digital media” child pornography.
(§ 11165.1, subd. (c)(3), as amended by Stats. 2014, ch. 264, § 1.)
Like the prior version of CANRA, the legislative history of
Assembly Bill 1775 reflects an intent to protect victims of
suspected child abuse. According to the bill’s author, Assembly
Bill 1775 was designed to “ ‘further ensure the protection of
children from the proliferation of sexual exploitation through
internet child pornography. The State Legislature has a duty to
ensure it does everything within its power to make certain the
most vulnerable of our society, our children, are protected.’ ”
(Assem. Conc. Sen. Amends. to Assem. Bill No. 1775 (2013-2014
Reg. Sess.) as amended May 13, 2014, p. 3.)3
3
Numerous organizations representing mental health
professionals subject to CANRA’s mandatory reporting
requirement supported Assembly Bill 1775. The California
Association of Marriage and Family Therapists (CAMFT), on
behalf of its 30,000 members, sponsored the legislation. (Senate
Rules Com., Office of Sen. Floor Analyses, 3d reading analysis
of Assem. Bill No. 1775 (2013-2014 Reg. Sess.) as amended May
13, 2014, p. 1.) In a letter of support, CAMFT declared that
Assembly Bill 1775 would “ensure that the law adequately
reflects changes in technology to better protect children from
being sexually exploited through internet child pornography.”
(Cathy Atkins, CAMFT, letter in support of Assem. Bill No. 1775
(2013-2014 Reg. Sess.) Feb. 19, 2014, p. 1.) Several other
organizations representing mandatory reporters, including the
5
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
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
California Association for Licensed Professional Clinical
Counselors, the Board of Behavioral Sciences, and the
California Psychological Association, publicly expressed support
for the bill. (Senate Rules Com., Office of Sen. Floor Analyses,
3d reading analysis of Assem. Bill No. 1775, supra, as amended
May 13, 2014, p. 3.)
6
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
they are required to with the printing or copying of such
materials.” (Sen. Com. on Pub. Safety, Rep. on Assem. Bill
No. 1775, supra, as amended May 13, 2014, p. 7.)4
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
4
Despite acknowledging that “some legislative history
assert[s] that the 2014 amendment was a mere technical update
to CANRA” (maj. opn., ante, at p. 12), the majority presumes
instead that the Legislature intended to change the meaning of
the law (ibid.). But we have recognized that the purpose of
amendatory changes “is not necessarily to change the law.”
(Williams v. Garcetti (1993) 5 Cal. 4th 561, 568.) “While an
intention to change the law is usually inferred from a material
change in the language of the statute [citations], a consideration
of the surrounding circumstances may indicate, on the other
hand, that the amendment was merely the result of a legislative
attempt to clarify the true meaning of the statute. [Citation.]”
(Ibid.; see also W.R. Grace & Co. v. Cal. Emp. Com. (1944)
24 Cal. 2d 720, 729 [“The fact that the statute was . . . amended,
however, does not necessarily indicate that the law was different
before the amendment. Although courts ordinarily infer an
intent to change the law from a material change in the language
of a statute [citations], the circumstances may indicate merely a
legislative intent to clarify the law”].)
7
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
patients’ constitutional right to privacy under the framework set
forth in Hill, supra, 7 Cal. 4th 1.
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
8
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
before this court, a relevant consideration is whether similar
disclosures have been required in the past. (Whalen, at p. 602.)
Since its enactment, CANRA has expressly excepted
information regarding suspected child abuse or neglect from the
psychotherapist-patient privilege. (§ 11171.2, subd. (b).) For
more than 30 years, mental health professionals in California
have been required to make a report under CANRA when they
reasonably suspect that a patient has sexually abused or
exploited a child, including by knowingly “develop[ing],
duplicat[ing], print[ing] or exchang[ing]” photographs or videos
depicting child pornography. (Former § 11165.1, subd. (c)(3).)
Plaintiffs do not challenge this established rule. (Maj. opn.,
ante, at pp. 6-8.)
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 section 11165.1, subdivision (c)(3). By
definition, the terms “download[ing]” and “stream[ing]” child
pornography online involve the act of “duplicat[ing]” a file to a
user’s personal technology device. (§ 11165.1, subd. (c)(3); see,
9
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
e.g., Video Pipeline, Inc. v. Buena Vista Home Entertainment,
Inc. (D.N.J. 2003) 275 F. Supp. 2d 543, 549, fn. 2 [downloading “is
a process by which a complete audio or video clip is delivered to
and stored on a consumer’s computer”]; Barron’s Dict. of
Computer and Internet Terms (12th ed. 2017) p. 152
[“download” means “to transmit a file or program from a central
computer to a smaller computer or a computer at a remote site”];
Martin & Newhall, Criminal Copyright Enforcement Against
Filesharing Services (2013) 15 N.C.J. L. & Tech. 101, 119, fn. 97
[“Stream[ing]” content from the Internet involves making a
“temporary ‘buffer’ copy of a video file, which is destroyed as the
video is played”]; Barron’s Dict. of Computer and Internet
Terms, at p. 472 [defining “streaming” as “delivering audio or
video signals in real time, without waiting for a whole file to
download before playing it”].)
Accordingly, downloading or streaming a file inherently
involves making a “duplicate[]” of it (former § 11165.1, subd.
(c)(3)), and the majority does not contend otherwise. Ever since
1987, CANRA has required psychotherapists to report when
their patients disclose duplicating photographs or videos of child
pornography. The Legislature did not expand this rule when it
added the terms “downloads” and “streams” to the statute’s
definition of “sexual exploitation”; it merely clarified that the old
rule also applies to newer technologies. (§ 11165.1, subd. (c)(3).)
Under the circumstances, a patient cannot have a reasonable
expectation of privacy in disclosing information that has for so
long been the subject of mandatory reporting.
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.,
10
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
ante, at p. 10), which plaintiffs assert was made reportable only
by Assembly Bill 1775. Although it is not clear that any of terms
in the 2014 amendment are synonymous with simple possession
or viewing (because even the phrase “knowingly . . . accesses
through electronic or digital media” (§ 11165.1, subd. (c)(3))
describes affirmative conduct in seeking to obtain child
pornography online), even assuming that the amendment covers
such conduct, the majority’s approach suffers from several
deficiencies.5
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
5
Although the majority repeatedly characterizes the
challenged conduct as “simple possession or viewing” (maj. opn.,
ante, at pp. 10, 11, 24, 27) of child pornography, it bears
emphasizing that CANRA only requires the reporting of a
person who “knowingly” engages in the specified conduct
(§ 11165.1, subd. (c)(3)). It would not, for example, apply to a
person who wanders into a room and unexpectedly sees child
pornography displayed on another’s computer.
11
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
have no reasonable expectation of privacy in disclosing such
behavior under the circumstances because their conduct —
possessing online images or videos of child pornography by
downloading (i.e., duplicating) them — has been reportable
since CANRA was enacted more than 30 years ago.
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.” (§ 11166,
subd. (a), italics added.) A patient’s admission that he has
knowingly viewed child pornography online will almost if not
always give rise to reasonable suspicion that the patient has
downloaded or duplicated such materials, or otherwise engaged
in conduct that has been reportable for decades under CANRA.
And, only rarely, if ever, will a patient disclose simply viewing
child pornography online, without also revealing other
reportable conduct (i.e., duplicating those images or videos to
the patient’s computer). Indeed, plaintiffs’ complaint is replete
with admissions that “many” of their patients have
“download[ed] and view[ed]” child pornography online. (Italics
added.)
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
12
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
“significantly different” from those that were required under a
prior law or “meaningfully distinguishable” from other
invasions of privacy that are associated with health care.
(Whalen, at p. 602.) The same is true here. At least the vast
majority of conduct that, as communicated to a psychotherapist,
is subject to reporting under the 2014 amendment was already
subject to mandatory reporting under the 1987 version of
CANRA. And to the extent that Assembly Bill 1775 can be
construed to include admissions limited to having knowingly
viewed child pornography online, this behavior is not
“significantly different” or “meaningfully distinguishable” from
what has triggered required reporting for decades. (Whalen, at
p. 602.)
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
13
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
that case rejected the idea that “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.” (American Academy, at p. 339 (plur. opn. of
George, C. J.).) But American Academy is not dispositive on the
issue. There, the plurality opinion was referring to a far more
general statutory rule requiring parental consent for medical
care, not — as here — comparing two versions of the same
statute regulating substantially similar if not identical conduct.
In other words, a minor could still have a reasonable privacy
expectation in her decision to obtain an abortion, even if her
parents had to be notified about quite different medical
procedures.
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 Civ. Code, § 1798.24, subd. (e).) In International
Federation of Professional & Technical Engineers, Local 21,
AFL-CIO v. Superior Court (2007) 42 Cal. 4th 319, we likewise
14
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
held that public employees do not have a reasonable expectation
of privacy in the amount of their salaries because the Attorney
General has held the long-standing position that government
payroll information was a matter of public record. (Id. at
pp. 331-332.) Consistent with these decisions, because
psychotherapists in California have long been required to report
a patient’s disclosure that he knowingly “duplicate[d]”
photographs or videos of child pornography, the patient cannot
reasonably expect that disclosures of having knowingly
“download[ed], stream[ed], [or] access[ed]” such images online
will be kept confidential. (§ 11165.1, subd. (c)(3).)
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
6
Although the preceding discussion addresses Hill’s second
threshold element — a reasonable expectation of privacy in the
circumstances — it also undermines plaintiffs’ claim regarding
Hill’s third threshold element — the invasion of privacy must be
serious. Given the strong likelihood that plaintiffs’ patients will
disclose conduct that is reportable under the former version of
CANRA, which plaintiffs do not challenge, to the extent the 2014
amendment reaches any otherwise nonreportable conduct, any
invasion of privacy would be minimal at best, not serious.
The majority’s contrary conclusion, based largely on Long
Beach City Employees Assn. v. City of Long Beach (1986)
41 Cal. 3d 937, 944, is misguided. The majority reasons that the
privacy invasion here is “severe” because reporting invades
15
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
III. BECAUSE A SIZABLE NUMBER OF PATIENTS LACK
A REASONABLE EXPECTATION OF PRIVACY IN THEIR
DISCLOSURES REGARDING CHILD PORNOGRAPHY,
PLAINTIFFS’ FACIAL CHALLENGE FAILS
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
“ ‘the mind’ ” and the patient’s “ ‘mental processes,’ ” which
constitute “ ‘a quintessential zone of human privacy.’ ” (Maj.
opn., ante, at p. 33.) But the amendment here at issue requires
the reporting, not of mental processes, but of criminal conduct
— downloading, streaming, or accessing child pornography by
electronic means — that actually and directly inflicts harm on
the child. The reporting of that conduct reveals a patient’s
mental process no more than does any other requirement that a
specified act be reported. Because this case involves the
reporting of voluntary disclosures to treating professionals
regarding criminal acts, it is nothing like Long Beach, which
involved the mandatory administration of polygraph
examinations to “compel[] communication of ‘thoughts,
sentiments, and emotions’ which the examinee may have chosen
not to communicate.” (Long Beach, at p. 944, italics added.)
16
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
its “ ‘ “unconstitutionality clearly, positively, and unmistakably
appears.” ’ ” (In re Ricky H. (1970) 2 Cal. 3d 513, 519.) Plaintiffs
making a facial challenge “ ‘ “cannot prevail by suggesting that
in some future hypothetical situation constitutional problems
may possibly arise as to the particular application of the
statute.” ’ ” (Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069,
1084; see also Zuckerman v. State Bd. of Chiropractic Examiners
(2002) 29 Cal. 4th 32, 38-39.) “These formidable rules insulating
a statute from facial attack are understandable in light of the
severe remedy for a successful facial challenge. . . .” (In re
Marriage of Siller (1986) 187 Cal. App. 3d 36, 48.)
“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 people 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
17
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
phrasings of the test, plaintiffs must show that the 2014
amendment will create constitutional concerns “in the
generality or great majority of cases” involving patients who
have admitted possessing or viewing child pornography but who
(in the therapists’ estimation) present no serious danger of
hands-on sexual abuse or exploitation of children. (Ibid.; see
Gerawan Farming, Inc. v. Agricultural Labor Relations Bd.
(2017) 3 Cal.5th 1118, 1145-1146 [“[I]n order to succeed on a
facial challenge, it is not enough to show that some hypothetical
applications of the . . . statute might result in arbitrary or
discriminatory treatment. Instead, [a plaintiff] must show that
the statute ‘inevitably pose[s] a present and total fatal conflict’
with equal protection principles [citation] or, at the least, that
the statute violates equal protection ‘in the generality or great
majority of cases’ ”]; Guardianship of Ann S. (2009) 45 Cal. 4th
1110, 1132 [courts may not invalidate a statute simply because
“[t]here are imaginable scenarios” in which a constitutional
problem may arise].)
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.” (§ 11166,
subd. (a), italics added.) 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. The majority does not
dispute that downloading and streaming child pornography
online involves making a duplicate of such content, nor that the
only way to “possess” images accessed over the Internet is to
download a copy of them. Moreover, it is extremely unlikely that
18
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
a patient will disclose simply possessing or viewing child
pornography online, without also revealing other reportable
conduct (i.e., downloading those images or videos to the patient’s
computer). Indeed, as discussed previously, plaintiffs’
complaint alleges that “ ‘many’ ” of their patients “ ‘have
admitted downloading and viewing child pornography on the
Internet.’ ” (Maj. opn., ante, at p. 6, italics added.) Thus,
Assembly Bill 1775 does not create constitutional concerns “in
the generality or great majority of cases” to which it applies (T-
Mobile, supra, 6 Cal.5th at p. 1117, fn. 6), even if plaintiffs’ facial
challenge is properly viewed as concerning only those who have
viewed or possessed child pornography through electronic or
digital media. (See, e.g., Kasler v. Lockyer (2000) 23 Cal. 4th 472,
502 [“While due process requirements might arguably prevent
prosecution in a particular case . . . plaintiffs’ facial attack is
inadequate because they have not demonstrated a deprivation
of due process in the ‘vast majority’ [citation] or ‘ “generality” ’
[citation] of cases”].)
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.
19
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
Moreover, other long-standing exceptions to the
psychotherapist-patient privilege may well require reporting a
patient who has simply “possessed or viewed” child
pornography, even if the psychotherapist believes there is no
“serious danger of hands-on sexual abuse.” (Maj. opn., ante, at
p. 13.) The dangerous patient exception provides that there is
no privilege if the patient is in such a mental or emotional
condition as to be “dangerous” to himself or others. (Evid. Code,
§ 1024.) It does not require the danger to be serious, nor limit it
to hands-on abuse. As a result, under Evidence Code section
1024 a patient who presents some danger of hands-on abuse to
a child victim would have no reasonable expectation of privacy
in disclosing to a psychotherapist that he viewed or possessed
child pornography online. Similarly, given the severe harm that
simple viewing causes to the child victim (Grant, supra,
58 Cal.4th at p. 477; New York v. Ferber (1982) 458 U.S. 747,
757 (Ferber)), a patient who presents no risk of “hands-on” abuse
but displays a “hands-off” danger may also have no reasonable
expectation in disclosing that he viewed child pornography
online under the dangerous patient exception.
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
20
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
nothing about the danger these patients pose in causing non-
“hands-on” harm by viewing the material. As the majority
elsewhere acknowledges, consumers of child pornography
“perpetuate the victimization with every viewing.” (Id. at p. 3.)
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) [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
21
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
these grounds. Even assuming, however, that plaintiffs have
satisfied Hill’s three threshold elements for an invasion of
privacy claim and successfully challenged Assembly Bill 1775 on
its face, they have a difficult hill to climb on remand to
demonstrate that the asserted privacy concern constitutes a
violation of the state constitutional right to privacy.
“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
22
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
conduct a general balancing test. (Hill, supra, 7 Cal.4th at
p. 34.) Cases dealing with “freedom from involuntary
sterilization or the freedom to pursue consensual familial
relationships” are examples of such invasions. (Hill, supra,
7 Cal.4th at p. 34.) In all cases but one, we have applied a
general balancing test. (See Lewis, supra, 3 Cal.5th at p. 573.)
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,
23
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
supra, 458 U.S. at p. 757 [“The prevention of sexual exploitation
and abuse of children constitutes a government objective of
surpassing importance”].)
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,
24
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
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 Counsel 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
7
The majority’s characterization of Stritzinger as
supporting plaintiffs’ argument that mandatory reporting
deters psychotherapy patients from seeking treatment (maj.
opn., ante, at p. 38) is not well taken. In Stritzinger, the
therapist contacted authorities and disclosed the details of
alleged abuse as related to him by the victim. (Stritzinger,
supra, 34 Cal.3d at p. 509.) The therapist later disclosed the
details of his conversations with the defendant regarding the
same abuse. (Ibid.) The defendant challenged CANRA’s
reporting requirement only as applied to the second, redundant
disclosure. We did not question the propriety of an initial report
of abuse under CANRA, despite concerns that even these reports
could deter patients from therapy. (Stritzinger, at pp. 512-514.)
25
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
therefore traceable through law enforcement investigation to a
particular child or children.” (Duty to Report Suspected Child
Abuse Under 42 U.S.C. § 13031 (May 29, 2012) Office of Legal
Counsel, pp. 12-13 [as of
Dec. 20, 2019].) Indeed, we have recognized that “[o]ftentimes,
reporting by third parties [under CANRA] is the only way the
proper authorities become aware of an incident of child abuse.”
(B.H. v. County of San Bernardino (2015) 62 Cal. 4th 168, 190.)
Therefore, plaintiffs’ claim — that the reporting statute does not
actually serve its intended purpose because identifying children
online is difficult — is unconvincing.
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
26
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
victimizing these children. [¶] Third, the consumer of child
pornography instigates the original production of child
pornography by providing an economic motive for creating and
distributing the materials . . . . The underlying point . . . is that
there is no sense in distinguishing . . . between the producers
and the consumers of child pornography. Neither could exist
without the other.’ ” (Grant, supra, 58 Cal.4th at pp. 477-478,
quoting U.S. v. Norris (5th Cir. 1998) 159 F.3d 926, 929-930
(Norris).)
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
27
MATHEWS v. BECERRA
Cantil-Sakauye, C. J., dissenting
disorders “will continue unabated.” (Maj. opn., ante, at p. 38.)
Such judicial speculation should not be a basis for allowing
plaintiffs to proceed with their constitutional attack on the
statute.
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 [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.
28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Mathews v. Becerra
_______________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 7 Cal.App.5th 334
Rehearing Granted
_______________________________________________________________________________
Opinion No. S240156
Date Filed: December 26, 2019
_______________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Michael L. Stern
_______________________________________________________________________________
Counsel:
Nelson Hardiman, Mark S. Hardiman and Salvatore Zimmitti for Plaintiffs and Appellants.
Arnold & Porter Kaye Scholer, Trenton H. Norris and Oscar Ramallo for Scholars as Amicus
Curiae on behalf of Plaintiffs and Appellants.
Kamala D. Harris and Xavier Becerra, Attorneys General, Michael J. Mongan and Edward C.
DuMont, State Solicitors General, Aimee Feinberg, Deputy State Solicitor General, Thomas S.
Patterson and Douglas J. Woods, Assistant Attorneys General, Paul Stein, Marc A. LeForestier
and S. Michele Inan, Deputy Attorneys General, Max Carter-Oberstone, Associate Deputy State
Solicitor General, for Defendant and Respondent Xavier Becerra, as Attorney General.
Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall and Maria Z. Markova for Defendant and
Respondent Jackie Lacey, as District Attorney.
Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport for California Medical Association,
California Dental Association and California Hospital Association as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark S. Hardiman
Nelson Hardiman LLP
1100 Glendon Avenue, 14th Floor
Los Angeles, CA 90024
(310) 203-2800
Trenton H. Norris
Arnold & Porter Kay Scholer LLP
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111-4024
(415) 471-3303
Aimee Feinberg
Deputy State Solicitor General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-9555