children

New Mexico, Nevada, Connecticut ban conversion therapy for minors

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Ryan McGuire - Licensed under Creative Commons ZeroEarlier this month, the governors of Nevada and Connecticut signed laws banning conversion therapy for minors in those states. These follow the signing of a similar law in New Mexico in April. According to the National Center for Lesbian Rights, nine states now ban the practice. The District of Columbia and cities including Seattle, Cincinnati, and several in Florida have enacted similar bans.

If you are not familiar with the practice, conversion therapy (also sometimes known as reparative therapy) involves efforts to change someone’s sexual orientation. The American Psychological Association and other professional mental health groups have strongly disavowed the practice. They note that there is no evidence that the treatment is generally effective, but there is evidence of harm that it can cause.

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There will never be a lab test for some mental health disorders

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Because they aren’t really “disorders” when you consider the “symptoms” in context.                                                                                                                                                                                                                                                                                                            

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One of the first things any new student in family therapy learns about is the genius of the acting-out child. Children are keen observers of the world around them: If they learn that one kind of scream or cry or tantrum gets their parents’ attention where another kind does not, they are quick to do what works and give up on what doesn’t.

Children are also, for obvious reasons, incredibly observant of their parents’ relationship (whether to each other, or in blended or single-parent families, to the new partner). For kids, seeing their parents fighting can be utterly terrifying.

Some kids, in the midst of a parental argument, learn to stay out of the way. Other kids learn, even by accident, that a very good way to get the parents to stop arguing with each other is to break rules, scream, or otherwise behave inappropriately. Here is where acting out is so smart: if both parents get angry at the kid for misbehaving, at least they stop arguing with each other for a while.

For a child, the pain of having your parents angry at you may be far preferable to the terror experienced when watching them fight each other.

Of course, parents are often reluctant to see this. They may instead perceive such a child as “hard to handle,” “defiant,” or otherwise broken. In the worst cases, health care professionals buy into the parents’ descriptions, slapping diagnostic labels on the child. Labels like “attention-deficit hyperactivity disorder” or “oppositional defiant disorder” may accurately describe a child’s behavior, but they ignore the cause, and tend to focus attention on the child as the problem.

A skillful family therapist will assess not just the child but also the child’s entire social environment, including their family, to see whether the acting-out behavior is actually smart. If it is, then therapy focuses not on “curing” the acting out, but instead on making it no longer necessary. The family therapy field is rife with stories of children diagnosed with attention-deficit disorder, childhood bipolar disorder, or other mental illnesses who are rapidly “cured” once their parents start coming in to therapy sessions — especially if the parents are willing to work on their relationship with each other.)

Of course, we don’t stop being impacted by our social worlds when we become adults. Just as the acting-out child is often behaving in a way that is quite smart given their environment, adults who appear to have mental illnesses may be responding intelligently to the world around them. This may mean their behavior is a response to the work environment, social circle, family, or even larger society. For example, William Glasser suggests that at least some of the higher prevalence of depression among women might actually be a wise response to the impossibly high demands placed on women to be successful at work, at home, and socially, always with a smile on. For women who experience that pressure intensely, and do not feel they have a reasonable way of escaping or easing it, depression can be a quite reasonable way of checking out of that chase without having to actively fight social norms. (For clarity, Glasser is not suggesting blaming the depressed for their depression; he does argue that depressive behaviors are sometimes chosen, but goes on to say these choices are often not conscious. Depression may be an adaptive response to difficult circumstances, Glasser says, but it certainly is not ideal.)

Ultimately, whether we are talking about children, adolescents, or adults, it is often true that behavior that might look troubling or even “ill” in one context is actually quite helpful in another. In fact, sometimes taking on behaviors that appear crazy to others is actually the smartest thing to do. It’s evidence of good health and adaptability, not an underlying problem with the brain or body that any lab test could detect.

That’s why, for as much as I support the National Institutes of Mental Health’s effort to usher in a new era of hard science in mental health diagnosis (and usher out the behavior-based diagnoses of the DSM-5), I wonder who it will leave out in the cold. The simple fact is that many people who now (appropriately!) receive diagnoses and are eligible for insurance-covered treatment for mental disorders are not, in any physiologically-testable way, disordered. They are actually quite healthy. Their behavior makes perfect sense when understood in context.

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Your comments are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

Updated: BBS legal opinion improves, doesn’t fix, child abuse reporting issue

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California mandated child abuse reporters would no longer need to discriminate against gay or lesbian youth. But the legal opinion is just that: An opinion.                                                                                                                                                                                                                                                                                                            

A legal opinion announced on Thursday by the California Board of Behavioral Sciences appears to go partway to resolving the problem of discriminatory reporting of child abuse.

The opinion, prepared at BBS request by legal counsel for the Department of Consumer Affairs, essentially says that oral sex, anal sex, and object penetration should be treated the same as vaginal intercourse when considering abuse reporting. If two minors of similar ages (as defined by the law; see the age combination descriptions in this earlier post) engage in consensual acts without evidence of coercion or other signs of abuse, those acts are not reportable.

BBS Executive Director Kim Madsen announced at Thursday’s Policy and Advocacy Committee meeting that she would make the full legal opinion public. While the opinion does not carry the weight of law, it should be helpful for therapists seeking to understand when the BBS expects child abuse reports to be made, and when the therapist can rely on their own judgment as to what is abusive.

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Your comments are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

California’s child abuse reporting act is naive and discriminatory

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California law defines normal, consensual, adolescent heterosexual behavior — and all same-sex sexual behavior — as child abuse. The law is discriminatory. It harms the therapeutic relationship. It needs to be changed.
                                                                                                                                                                                                                                                                                                           

California Capitol-fromSWUnder California’s existing standards for child sexual abuse, if minors are having consensual sexual intercourse, their ages determine whether a therapist needs to report it as abuse to the local child protective agency. The math goes something like this(1):

  • One partner 13 or younger: If the other partner is also 13 or younger and both children are of similar maturity, report only if there is evidence of intimidation, coercion, bribery, or other exploitation. If the other partner is 14 or older, report.
  • One partner age 14 or 15: If the other partner is under 14, report. If the other partner is 14 to 20 years old, do not report unless there is evidence of exploitation as described above. If the other partner is 21 or older, report.
  • One partner age 16 or 17: If the other partner is under 14, report. If the other partner is 14 or older, do not report unless there is evidence of exploitation as described above.

That’s all fine and good, right? It is complex, sure, but it reasonably takes into account the ages of the partners, and the nature of their relationship (truly consensual versus exploitive). So far, that seems okay.

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The problem is that the above guide only applies to heterosexual, vaginal intercourse.

Under the same law — officially the Child Abuse and Neglect Reporting Act, or CANRA — oral sex, anal sex, and object penetration (including fingers or any other part of the body) are always considered child abuse if either partner is under 18 years old, even when the activity was consensual and there is no evidence of coercion or exploitation of either partner. Similarity or difference in the ages of the partners does not matter.

This results in problems for three groups of adolescents in therapy: Normally-developing heterosexuals, normally-developing gays and lesbians, and religious adolescents seeking to preserve a specific notion of virginity. (Yes, those three groups cover just about everybody.) Let’s look at each.

  • For normally-developing heterosexual teens, it is common to engage in oral sex before progressing to intercourse. Most of those who have had sex before age 18 have also had oral sex(2), and a 2006 review of national data showed that at almost a quarter of teenagers who had not had vaginal intercourse had engaged in oral sex. This sets up a backward reporting standard, where sex itself may not be considered abuse depending on the ages of the adolescents, but behavior that occurs earlier in development or as foreplay to intercourse is considered abuse.

  • For normally-developing gays and lesbians, any sexual activity before reaching adulthood is classified as abuse in the eyes of the law. Remember, oral sex, anal sex, and object penetration are always considered abuse if either partner is under 18. If we have finally reached the point where consensual sex between gay or lesbian adults can no longer be criminalized, it seems a natural extension to treat consensual sexual activity among gay and lesbian teens on a par with consensual sexual activity among straight teens. If we say consensual, heterosexual sex between minors that meets specific criteria (not exploitive, and weighing the minors’ ages) is not abusive, shouldn’t that same treatment be given to similar consensual, homosexual behavior under the same conditions?

  • Religious teens get caught in this mess too, as was pointed out by Dr. Judy Johnson, a Licensed Educational Psychologist who serves on California’s Board of Behavioral Sciences. It is not unusual for religious, heterosexual teens to engage in oral or anal sex instead of vaginal intercourse. These teens often specifically cite their religious beliefs as a reason for delaying intercourse. At an April committee meeting for the BBS, Dr. Johnson noted that these teenagers often say they are seeking to preserve their virginity. So, even in a consensual relationship, a teenager preserving their virginity on their own terms means engaging in what the state would consider child abuse.

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Therapists are caught in a terribly awkward place by the law. When working with adolescents who are experiencing normal development, the therapist has several options, all of them problematic:

  1. Direct the client not to share important sexual experiences. This usually starts with educating the client on the law’s limits to confidentiality, and may involve frequent reminders to the client about what cannot be discussed in therapy. This keeps the therapist from having to report, and thus keeps them compliant with the law, but it also closes potential conversation about a key area of adolescent growth and social development. Teenagers often want to discuss their relationships in the safe context of therapy precisely because they trust the therapist to have such conversation in private and without judgment. Stopping this conversation means that teenagers cannot have honest conversations with their therapists about sexual feelings and behaviors, including the risks and consequences of their actions. For teenagers who already distrust adults, this only further fuels that distrust. Finally, as should be obvious, directing teens not to talk about sexual experiences means directing them not to talk about experiences of real abuse that should be reported.

  2. Educate the client about what must be reported, and then allow them to use coded language. I have known some therapists who felt better using this as a middle-ground option, to at least give their adolescent clients some leeway to discuss sex. However, it (by design) leaves the waters of what is being discussed muddy on both sides, and leads to awkward, stilted conversations about sexual behavior. It also doesn’t really protect the therapist; regardless of what specific words the client is using, if the therapist reasonably believes the client is communicating that a reportable act took place, the therapist is legally obligated to report it.

  3. Choose not to follow the reporting law, accepting the liability that comes with that decision. A therapist who knowingly fails to report what the state considers child abuse can face up to six months in jail. However, taking on this risk allows for the most open and honest discussion of a client’s sexual behavior, and comfortable communication about sexual activity actually delays risky sexual behavior.

In practice, none of these options strikes an effective balance between protecting minors from actual abuse and allowing for an open and safe therapeutic environment. Therapists who want to provide appropriate clinical care to teenagers, which should include openly addressing sexual behaviors and the client’s thoughts and feelings about them, simply cannot do so under the current law. Few therapists today would disagree with the notion that truly abusive behavior should be reported, but requiring therapists to label behavior that is developmentally normal as “abuse” does far more harm than good.

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In 2010, Gerry Grossman and a group of colleagues pushed for clarifications to the law. While they were unsuccessful, their efforts did yield a number of stories from practicing therapists about the damage CANRA does in its current form. One example (emphasis mine):

Because of this antiquated reporting law, I warn my adolescent clients not to talk to me about these things, as I am required by law to report it. As one of my grad students asked, “You mean, you have to tell a teen not to talk about something they most likely need to talk to someone about?” I sadly must explain, yes.

While I’m no lawyer, the fact that the law is discriminatory on its face would seem to make it unlikely to withstand a legal challenge. If I were the state of California, I certainly would not want to be defending the existing law in court. But why should the state wait to be sued by a 17-year-old reported as a child abuser for having consensual oral sex with his or her 17-year-old, same-sex partner? It would be far preferable to resolve the issue through legislation, but so far there has not been enough political will to make the needed changes. Because an amendment to make the law fair would necessarily reduce the mandated reporter’s obligations, it would look like a weakening of the child abuse reporting law — and in the wake of the Jerry Sandusky scandal at Penn State, lawmakers have reflexively moved in the opposite direction. An analysis from the California Assembly Appropriations Committee lists no less than seven bills in the state legislature this year that would expand mandated reporting and stiffen penalties for failure to report.

The Board of Behavioral Sciences has expressed interest into at least examining the issue. I brought this to them at their April [page 27] and July Policy and Advocacy Committee meetings, and they have agreed to place it on a future agenda for discussion. What’s really needed, though, is a lawmaker with the nerve to stand up and say, “The current law is wrong, it discriminates against gay and lesbian youth, and it makes it harder to provide a safe therapeutic environment for normal, healthy adolescents. Let’s make the law do what we intended for it to do in the first place: protect vulnerable people from harm. Let’s stop requiring therapists to label normal teenagers as child abusers.”

References

1. Atkins, C. L. (2007). Reporting consensual activity between minors: The confusion unraveled. The Therapist, 19(1), 32-35.
2. Halpern, C. T., & Haydon, A. A. (2012). Sexual timetables for oral-genital, vaginal, and anal intercourse: sociodemographic comparisons in a nationally representative sample of adolescents. American Journal Of Public Health, 102(6), 1541-0048.

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As I said, I’m not a lawyer. The above information should not be construed as legal advice when determining whether a child abuse report is required. Consult with a supervisor and/or an attorney about your specific situation.

What are your thoughts about the law and how to best fix it? Post a comment below, email me at ben[at]bencaldwell[dot]com, or post a message to my Twitter feed.

From DC: Update on MFT inclusion in Medicare and school programs

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I’m at the AAMFT Leadership Conference in Washington, DC, where Division leaders from across the country have spent the last three days visiting our federal representatives. Priorities this year include Medicare inclusion and adding MFTs as named providers within the Elementary and Secondary Education Act (otherwise known as No Child Left Behind). Before I go to the details on the visits, some words of praise: this was the first time that AAMFT’s California Division and CAMFT, an independent organization of California MFTs, have combined efforts on their federal advocacy visits, and it went swimmingly. CAMFT’s lobbyist and leaders were kind, cooperative and helpful throughout, and I hope their experience of AAMFT was similar. Legislators and their staff people seemed impressed with the level of cooperation. As to the key issues, here is where we currently stand:

Medicare. As we were starting our second day of hill visits to California representatives on Thursday, we were greeted with bad news: the inclusion of MFTs as providers under Medicare, which had been part of the House health care reform package but not the Senate package, was pulled out of the reconciliation bill that will be voted on as early as next week. There is a slim chance that MFT inclusion in Medicare could still be accomplished this year through a different piece of legislation, but at this point that appears unlikely. On a more positive note, though, there remains significant bipartisan support in both chambers for adding MFTs in Medicare, as it would improve access to mental health care for seniors and those with disabilities. For a video of Senator John Barrasso (R – Wyoming) discussing the importance of this issue, click here.

School programs. MFTs can provide services to school populations under the Elementary and Secondary Education Act (ESEA), but because we are under the somewhat vague category of “other providers,” most programs do not seek to include MFTs when they apply for federal grant funding under ESEA. Adding MFTs as specifically named providers would improve the availability of behavioral health services for children. It also comes at no cost, which is helpful in seeking bipartisan support. Currently, these changes are in a House bill (HR1710) that has sponsors from both parties. I always enjoy the Leadership Conference for the trips to the Hill as well as the opportunities to connect with divisions from around the country. I’ll have another update from the conference in the next few days.