Thursday, January 19, 2012

Breaking Confidentiality: Is Rape Considered A Danger to Others?

A student of mine at the University of Denver raised an interesting question recently: If a therapy client tells you he is going to rape someone after his session with you, do you have an ethical or legal obligation to do something about it?

At first glance, the answer seems obvious. As a decent human being, of course you would have an obligation to try to prevent a rape. Unfortunately, the answer is not that simple. As a therapist, you need to consider three different factors: 1) Confidentiality, 2) Danger to Self/Others, and 3) Duty to Protect.

1) Confidentiality. In Colorado (and most other states), therapists are required to keep almost all information provided by a client confidential. Legally, therapists are not allowed to break confidentiality unless the client is a danger to him/herself, a danger to others, or in cases of court orders. In addition, suspected child abuse and suspected at-risk adult abuse needs to be reported, and therapists are allowed to  use a therapy client's records to defend themselves if the client sues them for malpractice.

That's it. Those are the only times a therapist can break confidentiality. Past crimes cannot be reported (remember how Tony Soprano would tell his psychiatrist all of the illegal things he had done AFTER he did them?). If a client tells his therapist he murdered someone, it is illegal to tell the police. Most future crimes cannot be reported either, unless the client is in danger of harming someone else, which leads to...

2) Danger to Self/Others. In Colorado, "danger" is not well defined. Intention to commit suicide or homicide are extreme cases--they are easily considered "danger" and the therapist is justified in breaking confidentiality in order to keep the public safe. But, cutting on one's arms with no intention of committing suicide might not be considered "danger to self." A planned fist fight at 3:30 on the school playground might not be considered "danger to others."

What about rape? Clearly, rape is a heinous act. But, the vast majority of rapes do not end in death. How much physical injury must there be to push rape over the "danger" threshhold? What about emotional danger? Typically, it is only physical danger that is required in order to break confidentiality.

So, if a therapy client is planning on raping someone in the immediate future, would you consider that to be "danger to others?" If you answered, "Yes" to that question, then you need to move on to...

3) Duty to Protect. In the 1970's, a man named Prosenjit Poddar killed a California woman named Tatiana Tarasoff. Mr. Poddar had told his therapist of his intention to kill Ms. Tarasoff, and her family sued the psychologist because they felt he did not do enough to protect their daughter from this threat. In two landmark cases, the California Supreme Court agreed, and they established a Duty to Protect.

It has become a standard of care for therapists to follow the Tarasoff case's Duty to Protect. If a client has the intention to kill an indentifiable victim and has the means to do so, the therapist must take steps to warn and protect the potential victim. That usually involves calling the police, calling the intended victim, and taking other reasonable steps (like telling a school principal or campus safety, given the specifics of the case).

The California Supreme Court wrote, "The protective privilege [i.e. confidentiality] ends where the public peril begins." But, the California court saw the public peril as death. What about something less physically dangerous, like rape?

Unfortunately, there is still no clear answer as to whether or not it is legally permissible or legally required to break a therapy client's confidentiality in order to prevent a rape. Ethically, I think it is clear that therapists should try to do everything in their power to stop such a horrible act from occurring. But, does that include warning the intended victim and the police? What would you do?

Thanks for reading-- Max Wachtel, Ph.D.


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