Counselling Dilemma: Risk of Paedophilia
You have been counselling a client in relation to her recent separation and divorce. The client and her husband are currently pursuing custody of their two small children through the courts. Your client is living with her children in their family home, whilst her ex-husband is staying with family friends. The house is going on the market in a few weeks and your client is packing up the family belongings.
In the process of packing, your client has stumbled across some pornographic magazines, left behind by her ex-husband. She is stunned to find a number of magazines containing explicit child pornography and mentions this to you in the course of a session. In addition, your client explains that her ex-husband is currently living with a family that has an 8-year-old daughter.
You have suggested that the client talk with her solicitor about this issue. The solicitor has recommended that she should wait and present the issue when the custody case is heard in court, as it will increase her chances of gaining full custody of the children. Your client is still uncertain of the action she should take in this situation and has appealed to you for some advice.
What would you advise your client to do in this dilemma? What would be your ethical obligation?
The Psychologists Registration Board of Queensland recommends using the Australian Psychological Society?s Code of Ethics. The APS Code of Ethics for its members, states:
In those unusual circumstances where failure to disclose may result in clear risk to the client or to others, the member may disclose minimal information to avert risk?.
?Members must not disclose information about criminal acts of a client unless there is an overriding legal obligation to do so or when failure to disclose may result in clear risk to themselves or others?.
In this case, there is no evidence of any risk or any criminal act. As a result, my legal and ethical obligation is not to act against the father at all.
To keep my client informed of my legal and ethical obligations concerning confidentiality, I would advise my client that if her children disclose child sexual abuse by their father (or anyone else), I would then be required to inform the appropriate Govt Dept of the accusation, and the possible risk to the 8-year-old girl. That Dept would then follow it up and determine the reality of the claim and the protection required.
Suggested Actions for Counsellor
Don?t allow yourself to jump to any conclusions. Can you confidently say that there is a genuine risk to either the client?s children or the 8-year-old girl on the basis that this pornography was found? No, you can?t.
Don?t let your own beliefs and values about sex and pornography interfere with the facts of this situation
Remember that child sexual abuse is a very serious accusation, particularly when there are currently no legal grounds. You cannot allow yourself to make a subjective judgement, or to make a false allegation, even if it is eventually found to be correct.
You must not incite your client to act inappropriately – you can only encourage your client to put into place some protective measures for her children.
Actions with the client:
Listen to the client?s (probable) shock, disappointment, and anger at the pornography material that she has found. She might also be feeling betrayed by her ex-husband or as if she doesn?t know him at all. Explain that these emotions are a normal reaction to this new information about her relationship with her ex-husband. It is not necessary to question her to find out whether it is serious pornography or about the full content of the magazines, unless she wants to talk about it. Give her plenty of opportunities to talk about her fear for the safety of her children and the 8-year-old girl.
Reassure her that, at this point, there is no evidence of serious wrongdoing, and that looking at these types of pornographic materials does not necessarily mean that her ex-husband ever had sexual fantasies about children, or ever acted on these fantasies, and she should try not to give herself more stress about something that she has no evidence of. It is reasonable to be angry and shocked about the pornography, but she should try to stop herself thinking that it means any more than that.
Encourage her to develop a communication pattern with her children where they would feel comfortable telling her if they were ever sexually assaulted (as that is the only way to try to protect them). Get her to talk with her children about telling her if anyone ever touches them where they don?t like it. Recommend some good children?s books that are designed to help in this situation. However, advise her not to mention her ex-husband, and not to ask her children if their father has ever touched them, as this might ?lead? the children into making something up to satisfy her questions.
Finally, reassure her that if there was any evidence of sexual assault on her children by anyone, or if the 8 year old girl was at risk of being sexually assaulted, that you would respond immediately to organise their protection and to get the perpetrator brought to justice.
If I were the counsellor the first thing I would do is contact my professional supervisor and discuss this issue with them. For the purpose of this exercise I will discuss what I would consider prior to approaching my supervisor.
This is a very emotional dilemma and we are all aware of situations when the system has let people down. There have been reported suicides of men who have been unjustly accused of child abuse and children committing suicide due to being abused. There are generally no winners in this sort of situation. A counsellor needs to remain objective in this type of case, and being there for your client does not mean judging the accused. There are a few things I need to think of first. Do I need to consider referring this case? If I had a personal history that involved abuse I would strongly consider referring the case. As I do not have any such personal history and I believe I have the expertise to deal with this case, I would take it on. Are there any legal obligations that I have?
With this question in mind, has any law been broken or are there any legal issues in question? To answer these questions I sought legal advice to find out if I am obliged to do anything in the eyes of the law. My legal adviser has clarified that there are legal issues. My client has an obligation by law to report the discovery of the magazines due to their content. Giving them to the solicitor is not a part of the reporting procedure. In this instance, is the client neglecting her responsibility to report this to simply get the upper hand in the custody battle? How do I feel about this as the counsellor? Whose interest is taking priority the children?s or the mothers? Do I need to help the mother work through this? By reporting the incident isn?t it still going to impact on the custody case in the ex-wife?s favour?
Apparently it is not unusual for solicitors to not recommend this avenue to clients in this situation due to client confidentiality. The law in regards to confidentiality covers the solicitor but not me. As a counsellor I am now facing an ethical dilemma as to whether I have a responsibility to report the matter myself. I will only need to consider this if my client does not report it. I need to discuss this issue with my client. My client?s decision will dictate whether I need to confront this issue or not.
The use of the magazines by the solicitor will result in my client?s partner having full knowledge of their existence well before the court case. Both solicitors have to disclose all evidence and materials to each other before the case is heard. If the magazines were used without disclosure they would most likely be declared as in surmisable evidence. With this in mind the partner is going to know in advance and will be advised that the court could possibly follow up the issue with further legal action anyway. He will also have time to prepare a defence. Another alternative is to confront the ex-partner with the evidence.
This would be my preferred first option. I would discuss with my client the possibility of both parties having a meeting to discuss this issue. I would suggest a facilitator be present. The ex-partner has a right to be given an opportunity to explain about what the magazines were doing there. Why did he have them? Were they his? There could be a legitimate reason. The fact that my client was stunned when she found them may suggest she has not had any previous concerns in this area. In my experience women can be very intuitive in this area. The possibility that such a meeting could possibly clear up the issue should not be ignored. My client would have to then consider whether any explanations given were plausible and then possibly discuss this further with me and/or the solicitor.
If my client had what she considered legitimate concerns, I would recommend that she consider the children be taken to a doctor for a complete check up. This will confirm or otherwise resolve any concerns about whether the children have been interfered with. If a doctor believed the children had been interfered with, then he/she would be required to report their findings. This would then be out of the mother?s hands.
It is not my job to presume innocence or guilt. As the counsellor my job is to support my client and help her realise as many options as possible with a view to discussing possible outcomes. Hopefully this will lead to a decision on what course of action she would likely take. I would not advise my client but discuss the possible options and let her decide what action she may take. I would also discuss with my client my ethics in regards to confidentiality. In this case I do not have the law protecting me as the solicitor does. If her partner subpoenaed me I would have to disclose the contents of our meetings. However, is there an issue of duty of care towards the children?
The outcome of this question really lies with the option taken by my client and the results of the medical. If she was to just ignore the issue, which would be unlikely with a solicitor involved, I may have a need to report the incident. Where does duty of care start and where does confidentiality stop? Ethically do I have a responsibility to the children if the mother ignores the magazines and does not report them or table them at the divorce proceedings? I believe I do. Children are not able to defend themselves and rely on adults for this. Sometimes it is not necessarily the parents who need to fend for the children. Confidentiality according to the ACA Code of Conduct can be breached in exceptional circumstances when a belief that harm to others may be done. I would fully discuss the repercussions of this decision with my supervisor before taking this option.
The issue of informing the family where the ex-husband is staying is a contentious one. I would suggest this issue be discussed in the meeting if one is to occur. Should the meeting not happen, again what is my duty of care to that family, particularly the daughter? If my client did not inform her friends and the ex-partner was to molest the daughter, then the client would have to accept partial responsibility, as would I. There may also be possible recriminations and legal action as to why they weren?t told. However, the client could find herself on charges of defamation if the parents were told. I would discuss with my client the possibility that she informs her ex-partner that if he does not tell them, then she will. If she is scared to do this, her solicitor may be able to inform him. The parents would be informed of the known facts only. That is, that some magazines containing child pornography were found. If these people are good family friends there is a good possibility this information will come out during or after the court case anyway.
Obviously while all this is going on, your client?s mental and emotional needs would have to be considered. This type of case will challenge a counsellor and bring many ethical and moral issues to bear. It is imperative at these times that we consult with our supervisors for support and clarity.
Without going over some of the issues already discussed, we do need to be careful as counsellors that we are not being used here.
Firstly, the client REPORTS that she has found these magazines – and she may well have, but I don’t actually know this. She could simply be saying it in order to make an ally of me in her custody battle. She might be goading me into making an official allegation of potential child sexual abuse with relevant authorities which, because it comes from a third party, won’t immediately point to a strategy by the client in her custody battle.
Without in any way trivialising the risks of child sexual abuse, I must say that I would be a little suspicious of somebody in possession of child pornography simply forgetting about it and leaving it behind for the ex-partner to find. I suppose anything is possible, but given the publicity child pornography has received in recent times, it does strike me as unusual.
Secondly, we have to be careful with what a client (particularly in these circumstances) calls “explicit child pornography”. As a former Commonwealth Film Censor, I have been involved in discussions of images being called child pornography simply for showing nude children (for example, a nudist film from Europe in which children were shown on a nudist beach along with nude adults).
So, did the client really see “explicit child pornography”, or was that her interpretation of what she saw?
Again, these issues need to be taken (very) seriously, but we must be weary of kneejerk reactions, and we must be careful not to jump to conclusions based on some trigger phrases.
I thought the above responses were very appropriate and comprehensive, taking into account many obvious considerations and some not so obvious. As I have personally experienced peadophilia and its affects within my own life & family’s, I feel the most appropriate avenue for me to pursue in this scenario would be to refer the client on. I believe I may have difficulties remaining unbiased & non-judgemental within the counselling process and this would be of no benefit to my client. However, on a case by case study, I do not believe that my personal experiences would always be detrimental to counselling others that are dealing with issues regarding paedophilia.
Ultimately I consider the issue of concern to be on the ethical/legal arena of mandatory reporting by professionals (teachers, doctors, nurses, counsellors etc) with suspected cases of child sexual/physical abuse and exploitation.
Mandatory reporting involves a legal obligation or legislative requirement on the professional to report suspected cases of child sexual abuse/exploitation, which does include child pornography. This involves the professional being required to report such suspected cases directly to the authorities rather than simply prompting the client to report on such things. So while it is important on one hand for the client to be encouraged to report concerns directly, it does not take away from the counsellor the need to determine their own ethical and legal responsibilities around the societal expectation/requirement of mandatory reporting on such things. So the question in my mind would be around the issue of mandatory reporting by the counsellor and whether or not this is a case for mandatory reporting.
The ethical dilemma over mandatory reporting rests in the real possibility of false accusation. Questions of concern over the legitimacy of the accusation could have a counsellor worried about the possibility of being triangulated into a terrible web of lies and deceit towards an innocent person being accused of such a horrid thing by someone with a terrible vendetta. Even so, while this could certainly occur, the whole area of mandatory reporting by teachers, nurses, doctors, counsellors, etc… on suspected cases of child sexual abuse/exploitation… even though not proven… is a requirement by law. This does include mandatory reporting of alleged cases of child pornography.
So it would seem in such instances, the initial judgment call by the counsellor would be to determine the legitimacy of the accusation before reporting it. But even that is a dangerous judgment call for the counsellor to make – in determining the legitimacy of an accusation over someone?s alleged illegal sexual exploits on children. Even so, while a precarious thing to decide, there is a clear distinction between determining the legitimacy of expressed concern by a client on such things and setting one self up as judge and jury in trying to determine the innocence or guilt of the accused. The counsellor is not the judge and jury. So it is not about the counsellor determining the guilt or innocence of the accused. It is about the counsellor first determining the legitimacy of the expressed concern and then determining their obligation towards mandatory reporting.
Thing is though, it could easily be argued in court as abdicating responsibility for mandatory reporting if the counsellor decided the expressed concern was not legitimate enough and therefore did not need to be reported by them. This is because the term mandatory can be interpreted as a no compromise sort of term, whereby it is mandatory, obligatory, and compulsory to report such suspected cases. So even to weigh up the legitimacy of the concern could be argued that it is not the counsellor?s place to do so.
Under the concept of mandatory reporting, once a professional hears an accusation ? they cannot just wash their hands of it and conclude it is not their responsibility. It doesn?t work that way. The legal obligations of mandatory reporting vary from state to state in Australia and would vary immensely between countries. So it is a topic that at this stage has a lot of ethical and legal ambiguity globally.
Because the when, why and how of mandatory reporting of suspected cases of child based sexual abuse/exploitation, is an area requiring sound professional judgement, such action should be made through carefully guided face-to-face facilitated discussion with colleagues and supervisors rather than quick knee jerk reactions on the spare of the moment with the client at the time.
Below are dot points excerpted from a Queensland State Government Correctional Services website that offers a list of what constitutes a reportable child based offence:
– Offences involving sexual intercourse with a child.
– Offences involving an act of indecency against or in respect to a child (excluding obscene exposure offences)
– Sexual servitude and prostitution offences involving a child (other than those committed by child prostitutes)
– Child pornography offences
– Murder offences committed against children (not manslaughter)
– Any other offence against a child, where there is an express sexual element on the face of the offence
– An offence an element of which is an intention to commit an offence referred to above, or attempt, conspiracy, or incitement to commit such an offence
– Any offence of another jurisdiction, that if done in the registering jurisdiction, would constitute an offence referred to above
Below are some important websites that offer greater depth of focus and clarity in the area:
While looking at this matter, we must remember that we have only the client’s accusation that the “child pornography” has come from the husband. We must not jump to conclusions and just assume that this is right.
If a person had some “alleged child pornography”, it would seem to me that it would not be in their best interests to just “leave it behind” for the wife to find.
And we must always remember that laws are different in every state, and that we must not just report a “possibility of the likelihood of a crime”. Even if found innocent in a court of law, a man’s life will be ruined on any allegation of pedophilia or child pornography, such is the paranoia in our society surrounding this matter.
Think very carefully first, and be very, very sure before taking action.
AIPC Student – Thanks for publishing the above comments, and showing the importance of looking at things from more than one angle.