Avoiding Liability Bulletin – January 2013
During the course of one’s practice, it may become known that your minor patient, or a patient’s child, has engaged in consensual sexual intercourse with another person – who may be another child or an adult. It is important under such circumstances for the practitioner to be knowledgeable about the laws dealing with this topic in order to determine whether the situation requires a report of child abuse to be made. Failure to report child abuse is a serious offense, with substantial consequences. On the other hand, making a report that is not required or authorized may constitute a breach of confidentiality.
As an example of how this issue can be tricky, some in California have been fooled or misled into thinking that because sexual intercourse between an adult (someone who is 18 years of age or older) and a child (a person under 18) is a crime, that it is therefore reportable as child abuse. It is not uncommon for police agencies to make this mistake. Unlawful sexual intercourse is a crime in California – it is commonly referred to as statutory rape. Unlawful sexual intercourse occurs when there is an act of sexual intercourse with a person who is not the spouse of the perpetrator, if the person is a minor. As many therapists and counselors know, not all crimes are reportable to the authorities. To the contrary, in most states the already committed crimes of the patient are generally confidential. There are exceptions. Child abuse, dependent adult abuse, and elder abuse are examples of crimes that must be reported in California.
Thus, the question that must be asked is whether the act involved constitutes reportable child abuse under the reporting law of the particular state – not merely whether the act constitutes a crime. In California, for example, consensual sexual intercourse between a twenty year old person and his 16 year old girlfriend is not reportable as child abuse, but it is a crime. If the adult is twenty one-years of age or older, and the minor is under sixteen years of age, it is both a crime and reportable as child abuse. What does the law provide in your state of practice? Are there any exceptions to reporting child abuse when there is sexual intercourse between a minor and an adult? The answer to these questions will help the therapist or counselor determine whether confidentiality prevails or a report is required – a critical determination.
ABOUT THE AUTHOR
Richard Leslie
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.
