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Mathews v. Becerra

Supreme Court of California

December 26, 2019

DON L. MATHEWS et al., Plaintiffs and Appellants,
v.
XAVIER BECERRA, as Attorney General, etc., et al., Defendants and Respondents.

          Superior Court Los Angeles County, BC573135, Michael L. Stern Judge.

         Second Appellate District, Division Two B265990

          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.

          Justice Liu authored the opinion of the Court, in which Justices Cuéllar, Kruger, and Groban concurred.

          OPINION

          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 “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. (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, 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 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, ” 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 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 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 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 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 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 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) 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.)

         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 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 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 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.)

         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 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 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 ...


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