Mandatory Reporting Scenario

[Sushirolls]

Recent discussion with another doctor, and even spoke briefly with a child abuse detective.

A patient divulges in an encounter, viewing child pornography, caught by someone else in the home. States they stopped, are done, won't do again, no children around, not other desires/thoughts expressed, etc. Nothing else divulged/expressed other than remorse for that action, and being caught.

The question is, does this fall under mandatory reporting? Does a mention of viewing child pornography induce our requirements as mandatory reporters?

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[splik]

Absolutely not. In some states like CA, downloading or distributing CSEM is a mandated report but it is an undue burden and ultimately harmful to patients to report anyone who looked at CSEM.

Also the vast majority of people who view CSEM do not pose a risk to children. The 5 year risk of hands on contact offense in someone with a criminal charge related to CSEM without evidence of contact offenses at the time of index charges is about 1%, falling to 0.2% after the age of 30. And this is for people who are justice involved, risk is likely much lower if someone is talking to a psychiatrist about this.

 

[Bartelby]

I agree with splik that it shouldn't be, but as mentioned check the standards in your state. California clearly requires mandated reporting, not sure if other states do.

 

[comp1]

First and foremost, this is NOT a clinical or an ethical decision. It is SOLELY a state specific legal decision. You can always call CPS and ask if something is required to be reported in the patient's jurisdiction. If you don't feel comfortable with that, you can call your hospital or malpractice carrier and ask them. Concur that it is mandated in California. Unfortunately, as is so often in these cases with solely legal matters, the OP did not give their state so no one can give any useful advice for them.

 

[calvnandhobbs68]

Yeah this is a situation where I'd like to get legal advice but I have to disagree with @splik it is reportable based on the state.

For instance in PA one of the provisions for reporting is:
"An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse"

And part of what child abuse is defined as:
"Causing sexual abuse or exploitation of a child through any act or failure to act"
"Creating a likelihood of sexual abuse or exploitation of a child through any recent act or failure to act"

And one of the definitions for sexual abuse is:

Section 6312.0 - Title 18 - CRIMES AND OFFENSES

Child sexual abuse material.--Any person who intentionally views or knowingly possesses or controls any child sexual abuse material or artificially generated child sexual abuse material commits an offense.

Absolutely not. In some states like CA, downloading or distributing CSEM is a mandated report but it is an undue burden and ultimately harmful to patients to report anyone who looked at CSEM.

Does California make some sort of distinction between downloading and viewing CSEM? And I guess I'm not sure what you mean by undue burden as a defense for not reporting something that falls under mandated reporting laws.

Splik I also think you're thinking of the definition of harm a bit too narrowly just looking at "hands on contact offense". Viewing child pornography is itself a harm by creating a market for this material and there are other offenses that develop besides in person sexual abuse (repeated viewing/requests for material, distribution of material, contact and reinforcement of behavior with other perpetrators, engagement with "live" cams/streams, etc) which cause significant harm to children.

 

[comp1]

No doubt, it's a mandated report in multiple states. We just don't know the OP's.

 

[Sushirolls]

State is unknown, but the discussion that is unfolding here is similar to what I had. Keep the contributions coming folks. Thanks, and thanks in advance.

 

[TexasPhysician]

Let’s say it is a mandated report state. No children in the home. How do they investigate? There is no child to name. There is no child to check on. The odds someone allows a random CPS investigator to view their home porn seems close to 0%. What is done?

 

[calvnandhobbs68]

Let’s say it is a mandated report state. No children in the home. How do they investigate? There is no child to name. There is no child to check on. The odds someone allows a random CPS investigator to view their home porn seems close to 0%. What is done?

Yeah that’s not our job. How they followup on it doesn’t absolve you of the need to report. Maybe talk to your local police department if you’re interested in how they would handle this situation.

However CPS will often bring or come back with police with them to interview people if people are resistant to interview. They can certainly interview the alleged perpetrator even without an identified child. I suppose someone could lawyer up if they really wanted to. Police/FBI can also do things like check to see if this persons IP has connected to any known CP distribution sites.

These situations can be like the “doc I only did crack once I swear” situations. It’s not exactly easy to go hunting down this kind of material…it’s not stuff you just stumble upon online. It’s not like this person was shocked and appalled and reported this to police, they got caught by a family member and “stopped” since then.

 

[Fan_of_Meehl]

What a fascinating discussion. I think it's a good example of a true 'moral dilemma' (as opposed to all those scenarios that are always bandied about in 'ethics' seminars and trainings where it's crystal clear what one 'ought' to do). It's a case where, in your professional role, there are certain ethical principles that would urge you to take action A while others would pressure you not to take action A or even do the opposite.

In terms of the argument that it should be reported because the patient is 'contributing to creating demand' for the child porn industry...in this scenario, did the individual actually pay for access to the material? If not, how is that contributing to creating demand?

Also, it is real easy to just say: (a) child porn is bad (m'kay, nobody is going to dispute that one); (b) I want to keep my license and don't want to take any risk of losing it, being prosecuted myself for failing to report, or seen as being someone who is 'soft on child porn crimes', so (c) I'm going to report the person's actions to CPS.

But what happens then? The person gets investigated (by CPS), it gets referred to the police, he gets charged, imprisioned, etc., etc., their life fairly over at that point. Wow. That's quite a bit of harm to your patient. What about the equivalent of some sort of ethical principles regarding 'Benificence and Non-maleficence' (or thereabouts)?

From a utilitarian perspective, what has been gained? Have any children actually been protected from harm? What if the person is remorseful for the behavior and we are trying to lower the likelihood (however statistically small in the first place in terms of base rates) that that individual will actually behaviorally do something in the future to victimize a child? Is destroying his life and throwing him in prison for a time going to effectively do that? Is that really the wisest decision in this case?

Just offering some alternative opinions on this. I think we have to be on guard for emotional reasoning in cases like this.

 

[Ceke2002]

I think we have to be on guard for emotional reasoning in cases like this.

Agreed. As someone who experienced CSA I do absolutely agree with mandatory reporting when there's real danger of harm to a child, but I also fully support there being more access to treatment, or ability to access treatment for those who have these sorts of feelings and genuinely want help before they commit any sort of offence. I would much rather someone like this be able to put their hand up and say, "Hey Doc, I'm having these feelings towards children, and I really want help to overcome or control this, because I absolutely don't want to ever hurt a child".

I'm not sure what the exact rules on mandatory reporting are in the (Australian) State I live in now, but my former Psychiatrist in my home State has been in a mandatory reporting situation, which I believe lead to a community treatment order, regular monitoring and random police checks. This seems reasonable to me.

 

[calvnandhobbs68]

In terms of the argument that it should be reported because the patient is 'contributing to creating demand' for the child porn industry...in this scenario, did the individual actually pay for access to the material? If not, how is that contributing to creating demand?

but thats not your job to try to figure out. Sure you can ask but ya know people lie....I can take the converse here and lets say this was a slip of a guilty conscience for someone who has accessed this materially repeatedly in the past, paid for such material or shared such material with others and who would have continued to do so if they had not been "caught" by a family member and thus may be at risk of continuing to do so.

Might have more of a full reply later.

 

[Fan_of_Meehl]

but thats not your job to try to figure out. Sure you can ask but ya know people lie....I can take the converse here and lets say this was a slip of a guilty conscience for someone who has accessed this materially repeatedly in the past, paid for such material or shared such material with others and who would have continued to do so if they had not been "caught" by a family member and thus may be at risk of continuing to do so.

Might have more of a full reply later.

1) legal duty to report instances of child abuse/neglect is mandatory, I get that. It's just that in the described scenario, there may be some real questions as to whether this qualifies as an instance of a situation where that duty exists--depending on the precise wording of jurisdictional statutes.

2) The patient in this scenario didn't say he committed an act of sexual abuse on a child (unless I misunderstood the post). The situation is a bit ambiguous. Obviously, if the patient discloses that his buddy Ted perpetrated such an act on a neighborhood kid and shared his pictures with the patient, most (all?) providers would report. If the patient has sought out membership in an international (but anonymous) group of online predators, then similar logic may apply. An investigation that ensues to shut down such an operation would protect children from future harm. However, if the patient disclosed that he was surfing the net for generic porn and stumbled upon some material that appeared to depict nude/sexualized photos of someone questionably underage (<18?, <15?, <12?) that was a polaroid from the 1980s and found himself particularly aroused by the photos and ashamed, then it would seem more like a situation that investigation would be unlikely to result in future prevention of harm to children but, if investigated, would definitely (or could) seriously harm the patient.

Unfortunately, ambiguous/complex scenarios happen and I think it's useful to explore the legal, ethical, and moral reasoning that would support taking one action or another. I think the more openly such scenarios can be discussed, the better off everyone is as a result. Discussion and debate is healthy.

 

[Bartelby]

Re: whether it is a mandated reporting scenario, that is just a matter of state law.

Re: whether it should be, if you believe we have treatment that could be helpful I think it should not be. We have antiandrogen options, or even high-dose SSRIs to disrupt sex drive. If someone wants to stop this behavior and thus discloses it so that they can in effect have themselves chemically castrated, is that really worse than them trying to deal with it on their own?

And if potential patients know any such disclosure to a psychiatrist will result in a report, investigation, and potential charge/conviction as a sex offender against children who in the world would disclose it?

While downloading child sexual abuse materials is definitely harmful to children and should be illegal, I think it is still quite different from contact offending in terms of what a mandated report can accomplish. If a patient discloses they are sexually abusing a child, there is a realistic chance CPS can genuinely stop the abuse. If they disclose they downloaded and viewed child sexual abuse material, it is highly unlikely CPS will find and protect the child involved. That mainly leaves us with the policy strategy question: is it more helpful to (1) make confidential treatment available to those that want it to genuinely reduce the likelihood that they keep offending or (2) in effect ban treatment of this issue for anyone who has not yet been convicted because seeking treatment will lead to a report to authorities?

 

[comp1]

I guess it could possibly be an ethical or clinical question in some patient locations, but for a lot of locations it does not progress anywhere beyond a legal question which is indeed quite clearcut. Further, I'm guessing in patient locations without a clear black and white requirement with penalties attached for not reporting, your malpractice carrier is still going to advise you to report. These really specific reporting requirements show up in state law after someone sues successfully in a state that kept things vague. In terms of what CPS could or should do with any information, that doesn't ever factor in any way into a mandated report...you're mandated. CPS can't or won't do anything with the VAST majority of reports, that doesn't affect the legal requirement to report.

 

[calvnandhobbs68]

I just want to be totally clear that I 100% agree that this is actually a tricky ethical scenario, even more so given the criminal legal ramifications. I was pushing back initially against the "absolutely not" statement about reporting, which is not true depending on the state. Again, the reportability, somewhat like involuntary hospitalization questions that come up, is more of a state legal issue in terms of "what can/do I actually do in this case".

Even if the mandated reporting requirements didn't exist, details then do start mattering (which you can discuss but also have to recognize may or may not be truthful) and there IS actually precedence for this based on the specific situation if there is any sort of class of "potentially identifiable victims" even if there is no specific actual statement of intent to harm these victims. See Garamella v. New York Medical College where basically a supervisor wasn't allowed to assert confidentiality as a defense and should have blown up a psychiatric residents career because he said he had pedophilic urges and then later went on to molest a child in his treatment, which was considered o be a class of foreseeable victims. Would that have been the right decision in hindsight? Sure but certainly a tricky ethical situation in real time.

I also completely agree that it's different from contact with kids but that contact with children is not the only harm that occurs in these situations. Does that mean I believe that everyone who views child porn should get a 5 year prison sentence? No way. I agree that the actual details in the long run would matter greatly (although from my understanding it's very difficult to "stumble on" child pornography these days, maybe the child abuse detective Sushi spoke to would have more insight on that). Does this person view this as wrong? Why did they only stop when their family member caught them? how long had this been going on for? How far had they gotten to acting on these impulses/fantasies? Do they seem open to actually working on this/treatment? Do they have potential contact with children? Etc etc.

 

[FlowRate]

Child sexual abuse material.--Any person who intentionally views or knowingly possesses or controls any child sexual abuse material or artificially generated child sexual abuse material commits an offense.

This is an aside but I wonder if "artificially generated CSAM" would actually survive legal scrutiny? The US has typically been extremely liberal with definitions of speech. Two ways of viewing that subject could see it either as no one being harmed (literally, it's generated from thin air most likely by a model that was not itself specifically trained on exploitative material) or potentially being based on people being harmed (if someone decided to train a generative AI model on actual child exploitation material.)

 

[calvnandhobbs68]

This is an aside but I wonder if "artificially generated CSAM" would actually survive legal scrutiny? The US has typically been extremely liberal with definitions of speech. Two ways of viewing that subject could see it either as no one being harmed (literally, it's generated from thin air most likely by a model that was not itself specifically trained on exploitative material) or potentially being based on people being harmed (if someone decided to train a generative AI model on actual child exploitation material.)

I mean FBI also considers it to fall under CSAM and has had multiple cases (including one in pennsylvania) where it held up in court.

Internet Crime Complaint Center (IC3) | Child Sexual Abuse Material Created by Generative AI and Similar Online Tools is Illegal