California's Child Abuse and Neglect Reporting Act (“CANRA”) has long required so-called “mandated reporters” to report to law enforcement any suspected instances of child abuse—including the acts of producing, developing, duplicating, printing or exchanging child pornography.1
But in 2014, the California Legislature passed Assembly Bill 1775 (AB 1775). This new law also requires mandated reporters to report to the authorities if they know or suspect that someone has
- streamed, or
any child pornography on the internet.2
In other words, under AB 1775, mandated reporters, including doctors and psychotherapists, are now required to report you to law enforcement if you confess to merely viewing—as opposed to creating, exchanging, distributing, etc.—child pornography.3
Example: William is a heterosexual man who has just gotten engaged to his girlfriend. He was molested by a male soccer coach who committed “lewd acts” with him over a period of several months when he was 10 years old.
As his wedding date approaches, William finds himself seeking out sexual images of boys around 10 years old on the internet. He only views these images and does not print or distribute them.
William is disturbed by his desire to view these images and thinks it may have something to do with the lingering psychological effects of having been molested as a child. He contacts a psychotherapist for help.
Prior to AB 1775, a therapist could have assisted William without having to report him to law enforcement. But after the passage of that law, if William tells a therapist about his online activities, the therapist will be required to report him.
What is a “mandated reporter” under CANRA?
Simply put, a “mandated reporter” is someone who, because of their professional status or job, is required by law to report to law enforcement any situations in which they know or reasonably suspect that child abuse or neglect—including sex crimes against minors—has taken place.4
Mandated reporters under CANRA and AB 1775 include:
- School administrators;
- Social workers;
- Police officers and firefighters; and
- Medical professionals, including doctors, psychiatrists, psychologists, marriage and family therapists, and nurses.5
If any of these people fail to report known or suspected instances of child abuse or neglect, they can be charged with a California misdemeanor.6 They may also face loss of their professional license.
According to Long Beach criminal defense attorney Neil Shouse7:
“The impact of AB 1775 is primarily on psychiatrists, psychologists and other mental health professionals. These are the professionals covered by CANRA who are most likely to find out that their clients have been viewing or downloading child pornography from the internet.”
When do mandated reporters have to report someone under AB 1775?
AB 1775 requires mandated reporters to make a report to the authorities whenever they either
- know, or
- reasonably suspect,
that someone has downloaded, streamed or accessed any of the following media that depicts a child engaged in obscene sexual conduct:
- Videotapes or video recordings; or
- Negatives or slides.8
Note that CANRA and AB 1775 only apply to the downloading, streaming or accessing of the types of media listed above. Material such as erotic writing is not covered by CANRA.
Example: Charles is a fan of a Japanese erotic fiction writer who publishes his stories on the internet. The stories usually center around explicit descriptions of sexual activity between pubescent children.
Charles worries that his interest in these stories is “weird.” He shares his concerns with the psychoanalyst he has been seeing for years.
The analyst is not required to report Charles under AB 1775, because the stories Charles has been reading do not fall into CANRA's definition of child pornography.
What has the reaction to AB 1775 been like?
AB 1775 has generated a great deal of controversy—and many consider it to be just plain bad law.
As therapists themselves have pointed out, AB 1775 is likely to discourage people who feel sexual desire toward children from seeking help from therapists—help that could prevent them from eventually acting on their desire.9
The expansion of CANRA also takes one more step toward the erosion of the psychotherapist-patient privilege—one of the most important California evidentiary privileges.
In fact, the controversy around AB 1775 is so great that three California therapists have sued the state, seeking to have the law overturned as unconstitutional.10
Call us for help…
For questions about AB 1775 and California's Child Abuse and Neglect Reporting Act, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 Penal Code 11165.1 PC – Sexual abuse, sexual assault, and sexual exploitation defined [as revised by AB 1775]. (“(c) “Sexual exploitation” refers to any of the following: . . . (3) 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, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3.”)
Penal Code 11165.7 PC – “Mandated reporter” defined [for purposes of CANRA]. (“(a) As used in this article, “mandated reporter” is defined as any of the following: . . . (21) A physician and surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, optometrist, marriage and family therapist, clinical social worker, professional clinical counselor, or any other person who is currently licensed under Division 2 (commencing with Section 500) of the Business and Professions Code. . . .”)
4 Penal Code 11166 PC – Report of child abuse or neglect [CANRA, as modified by AB 1775]. (“(a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her 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. The mandated reporter shall make an initial report by telephone to the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or electronically transmit a written followup report within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident. (1) For purposes of this article, “reasonable suspicion” means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient. For purposes of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse. (2) The agency shall be notified and a report shall be prepared and sent, faxed, or electronically transmitted even if the child has expired, regardless of whether or not the possible abuse was a factor contributing to the death, and even if suspected child abuse was discovered during an autopsy. (3) A report made by a mandated reporter pursuant to this section shall be known as a mandated report. . . . (c) A mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine. If a mandated reporter intentionally conceals his or her failure to report an incident known by the mandated reporter to be abuse or severe neglect under this section, the failure to report is a continuing offense until an agency specified in Section 11165.9 discovers the offense.”)
5 Penal Code 11165.7 PC – “Mandated reporter” defined [for purposes of CANRA].
6 Penal Code 11166 PC – Report of child abuse or neglect [CANRA, as modified by AB 1775], endnote 4, above
7 Our Long Beach criminal defense attorneys are very familiar with California sex crimes, including child pornography.
8 Penal Code 11165.1 PC – Sexual abuse, sexual assault, and sexual exploitation defined [as revised by AB 1775], endnote 2, above.
9 See, e.g., Leslie C. Bell, A California law about reporting child porn [AB 1775] puts psychotherapists in a bind, The Washington Post, Dec. 26, 2014; Robert Weiss LCSW, Wake Up California Therapists! Protecting Client Confidentiality per Proposed California Law AB 1775, Aug. 2014.
10 Matt Reynolds, Therapists Denounce Child Porn Law [AB 1775], Courthouse News Service, Feb. 23, 2015.