Planned Parenthood Affiliates v. Van de Kamp

Page 361

226 Cal.Rptr. 361

181 Cal.App.3d 245

PLANNED PARENTHOOD AFFILIATES OF CALIFORNIA et al., Petitioners, v. John VAN DE KAMP, as Attorney General, etc., et al., Respondents.

A032610.

Court of Appeal, First District, Division 5, California.

May 21, 1986.

As Modified on Denial of Rehearing June 16, 1986.

Review Denied July 31, 1986.

Abigail English, Adolescent Health Care Project of the Nat. Center for Youth Law, Margaret C. Crosby, Alan L. Schlosser, Edward Chen, American Civil Liberties Union Foundation of Northern California, San Francisco, for petitioners.

Richard R. Sheridan, Catherine I. Hanson, David E. Willett, Hassard, Bonnington, Rogers & Huber, San Francisco, for amicus curiae on behalf of petitioners.

John K. Van de Kamp, Atty. Gen., Janet Bangle and James Ching, Deputy Attys. Gen., Sacramento, for respondents.

LOW, Presiding Justice.

California's Child Abuse Reporting Law (Pen.Code, § 11165 et seq.) is designed to combat child neglect and the physical, emotional and sexual victimization of children. The law requires health care, educational, and other professionals to report known or suspected instances of child abuse to law enforcement or other governmental agencies. Failure to report may be punished as a misdemeanor. After investigation, substantiated reports are transmitted to the Department of Justice and lodged in a statewide computer data bank. We must decide whether the law requires a professional, who has no knowledge or suspicion of actual abuse, to nevertheless report a minor as a child abuse victim solely because the minor is under the age of 14 and has indicated that he or she engages in voluntary, consensual sexual activity with another minor of similar age. We hold the reporting law imposes no such requirement.

By this petition for writ of mandate, petitioners challenge a 1984 opinion of the Attorney General which applies the reporting law to all sexual activity of minors under 14, without regard to whether the minor is the victim of child abuse or is engaging in voluntary sexual conduct. Petitioners contend the Legislature did not intend to include such conduct within the ambit of the reporting law, particularly since the Legislature has established a right to confidential reproductive health care for minors under 14. Petitioners further argue that if the Legislature did intend voluntary conduct to be reported, the requirement would violate two aspects of the minors' right to privacy guaranteed by the California Constitution. The reporting requirement would violate the substantive right of sexual privacy by unduly burdening the minors' rights to make reproductive health care decisions, and it would violate the right to informational privacy by disclosing intimate medical information to the state for placement in a permanent computer file.

We issued a stay order in light of the sensitive privacy issues raised by the petition, and because the reporting provisions put health care professionals to the "Hobson's choice" between violating nonabused patients' confidentiality by reporting their sexual conduct to the state, or suffering criminal prosecution for failure to make a report. Because of the statewide impact of the reporting provision, we gave our stay order statewide effect pending our resolution of the serious matters raised by the petition. Our stay order in no way interfered with enforcement of the reporting requirement with regard to actual child abuse, whether physical, emotional, sexual, or conduct amounting to child neglect. We issued the alternative writ and heard oral argument. The peremptory writ of mandate is granted.

I

A

Petitioners are Planned Parenthood Affiliates of California (Planned Parenthood), a nonprofit corporation and the parent group of the 16 local California Planned Parenthood agencies; Dr. Ben Major, M.D., an Alameda County obstetrician/gynecologist whose patients include minors under 14; and Dr. Sadja Goldsmith Greenwood, M.D. Planned Parenthood provides reproductive health care services and offers such services to persons under 14. Planned Parenthood asserts its own interests in the availability of confidential reproductive health care to under-14 minors, and also asserts the interests of its minor clients. It has standing to do both. (Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212, 233, 157 Cal.Rptr. 117.) Dr. Major asserts his own rights as a physician caught between the obligations imposed by the Attorney General's interpretation of the reporting law, and his ethical obligations to provide confidential health care to minors who are engaging in nonabusive, voluntary sexual activity. Dr. Major further asserts his patients' rights to confidential health care and sexual privacy. He too has standing in both areas. (Ballard v. Anderson (1971) 4 Cal.3d 873, 877, 95 Cal.Rptr. 1, 484 P.2d 1345; see Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779.) Dr. Greenwood is a California taxpayer seeking to enjoin the expenditure of public monies in the enforcement of an invalid law; she has the necessary beneficial interest in the issuance of a writ of mandate. (Hollman v. Warren (1948) 32 Cal.2d 351, 196 P.2d 562.) In addition, all petitioners assert a beneficial interest as citizens concerned for the proper performance of a public duty in an area of general public interest. (Green v. Obledo (1981) 29 Cal.3d 126, 144-145, 172 Cal.Rptr. 206, 624 P.2d 256; American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 255-256, 109 Cal.Rptr. 22.)

Respondents are the Attorney General and the Alameda County District Attorney in their official capacities as officers charged with the enforcement of the Child Abuse Reporting Law. The Attorney General has a major role in enforcing and implementing the law's provisions. He directs and controls the Department of Justice, and is responsible for maintaining the statewide databank of child abuse reports and with disseminating information from that bank to local law enforcement agencies investigating child abuse. As the chief law enforcement officer of the state, the Attorney General has general enforcement power with respect to the penal sanction for nonreporting suspected abuse.

The District Attorney has the responsibility for local enforcement of the reporting law's penal provision. He is empowered to prosecute a professional who fails to report consensual sexual behavior as child abuse, and is named as a representative of all California district attorneys. The naming of a local official as representative of all counterparts statewide is a recognized procedure. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274; revd. sub nom. Richardson v. Ramirez (1974) 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551.) There has been no timely objection to that procedure in this case.

B

The Child Abuse Reporting Law (hereafter usually "reporting law"), Penal Code section 11165 et seq., ¹ was enacted in 1981 as a substantive revision of earlier reporting schemes. ² The law is designed to bring the child abuser to justice and to protect the innocent and powerless abuse victim. (See Comment, Reporting Child Abuse: When Moral Obligations Fail (1983) 15 Pacific L.J. 189.) The reporting law imposes a mandatory reporting requirement on individuals whose professions bring them into contact with children. (Id., at pp. 189-190.) Physical abuse, sexual abuse, willful cruelty, unlawful corporal punishment and neglect must be reported. ( § 11165, subds. (b)-(g).) "Sexual abuse" consists of "sexual assault" on the minor, defined as conduct in violation of one or more of the following sections: 261 and 264.1 (rape and rape in concert); 285 (incest); 286 (sodomy); subdivisions (a) or (b) of 288 (lewd & lascivious acts upon a minor under 14); 288a (oral copulation); 289 (rape by instrument); and 647a (child molestation). ( § 11165, subd. (b)(1).) ³

The reporting law applies to three broadly defined groups of professionals: "health practitioners," child care custodians, and employees of a child protective agency. "Health practitioners" is a broad category subdivided into "medical" and "nonmedical" practitioners, and encompasses a wide variety of healing professionals, including physicians, nurses, and family and child counselors. ( §§ 11165, subd. (i), (j); 11165.2.) "Child care custodians" include teachers, day care workers, and a variety of public health and educational professionals. ( §§ 11165, subd. (h); 11165.1 [first of two identically numbered sections]; 11165.5.) Employees of "child protective agencies" consist of police and sheriff's officers, welfare department employees and county probation officers. ( § 11165, subd. (k).)

The Legislature acknowledged the need to distinguish between instances of abuse and those of legitimate parental control. "[T]he Legislature recognizes that the reporting of child abuse ... involves a delicate balance between the right of parents to control and raise their own children by imposing reasonable discipline and the social interest in the protection and safety of the child.... [I]t is the intent of the Legislature to require the reporting of child abuse which is of a serious nature and is not conduct which constitutes reasonable parental discipline." (Stats. 1980, ch. 1071, § 5, p. 3425.)

To strike the "delicate balance" between child protection and parental rights, the Legislature relies on the judgment and experience of the trained professional to distinguish between abusive and nonabusive situations. "[A]ny child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective agency who has knowledge of or observes a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected instance of child abuse...