We all have emotions or thoughts that we shudder to share even with close friends or family. People seek out counseling as a safe place to unburden themselves without fear of judgment or reprisal. Parents especially put trust in therapists when it comes to their troubled teens. However, my juvenile clients often wonder, am I safe sharing my innermost thoughts to a therapist?
Unfortunately, the answer to that questions is no. There are many cases in which confidential disclosures in therapy led to criminal charges. The case of Trey M. is alarming in its implications for those seeking help. The court’s finding is truly a cautionary tale for any juvenile who discloses what they are feeling to a therapist. Despite most people’s understanding of confidentiality, therapists often report their patients as a matter of ‘community safety’ or due to a mistaken belief in a mandatory reporting obligation. Unless there is gross negligence in making such a disclosure to law enforcement, the therapist has a free pass to report without repercussions.
Trey was a high school student in Eastern Washington. He was in counseling due to an “early childhood history of abuse and neglect.” During his treatment, he shared with his counselor emotional pain over teasing by three male schoolmates, including that he “thought about taking a gun to school and shooting the boys.” He “wanted to kill them and for them to know the pain that he felt.” He had a specific plan to shoot the boys and then himself. The counselor “noticed a change in Trey’s mood and demeanor as he made these statements,” becoming demonstrably angry. The counselor took the threats seriously, even though Trey had talked about such things previously without incident, and contacted law enforcement.
A deputy sheriff then met with Trey, and asked Trey to “explain” what he said to the counselor. The deputy did not bother to tell Trey that he did not have to talk to him. Trey repeated the feelings he had disclosed to his counselor; he did not appear angry or emotional at this time. The principal of the high school suspended Trey from school, but also confirmed he had a report of Trey “being harassed or bullied”. The three bullies were notified of Trey’s ‘plan’. All professed at a later trial fear of being on Trey’s ‘hit list,’ even though Trey had never threatened them directly. Trey was charged and convicted on three counts of felony harassment.
As Trey’s appeal began winding its way through the Washington Court of Appeals, the U.S. Supreme Court issued the Elonis decision (Elonis v. U.S., 135 S. Ct. 2001, (2015)). In Elonis, a defendant’s conviction was reversed. The U.S. Supreme Court held the Federal criminal threat statute, prohibiting any communication containing any threat…”to injure the person of another” required a showing that the defendant intended to issue threats or knew that his communication would be viewed as threats. The Washington Supreme Court accepted direct review of Trey’s case. Incredibly, this troubled teen was considered by Washington’s highest court to have known or foreseen that his statements would be interpreted as serious threats. Hard to imagine, since his anger was being shared solely with his therapist. The court ruled that “a reasonable speaker in Trey’s place would foresee that Trey’s statements concerning his plan to kill the boys would be interpreted by a listener as a serious expression of intention to inflict bodily harm.”
Beware of the thought police! Trey’s therapist had in effect become his judge and jury. Even though Trey had made similar angry statements before, on this instance his therapist made a judgment call based on his interpretation of Trey’s demeanor. He was concerned because Trey’s “demeanor changed.” This fact was a critical distinction in the Washington Supreme Court’s analysis that Trey’s situation was different than other situations (including, apparently, the ‘emotionless’ recitation to the sheriff that followed).
This was an 8-1 decision. Judge Gordon McCloud recognized that objectively, Trey’s statements were true threats, even though they were “therapeutic disclosures.” He simply called for the objective standard to be abandoned as “bad policy.” The majority recognized Trey M was a “juvenile in crisis” but this did not stop them from inflicting a rigid objective standard which ignored the real person uttering the statement.
Judge McCloud rightly questioned how a juvenile in such crisis could knowingly threaten the three bullies. His analysis, below, is reasonable and empathetic.
A troubled and bullied young high school student was in counseling to address trauma stemming from his childhood of abuse and neglect. Following coaxing from his therapist to discuss his angry thoughts and plans, and in the context of the therapist-patient relationship, he disclosed his desire to violently harm three other students. Thereafter, a deputy sheriff asked the young man to repeat what he had previously disclosed to the therapist. The young man—Trey M.—did as he was told. There was no evidence that Trey M. ever volunteered these statements without being coxed by adults in positions of authority; there was no evidence that Trey M. ever actually communicated these statements to the three students directly; and there was no evidence that Trey M. intended, desired, or knew that his coaxed disclosures of these statements to responsible adults would be communicated to those three other students indirectly. In fact, the trial judge explicitly found that Trey M. told the deputy sheriff “that he was having a hard time wanting to do the wrong things.” Nevertheless, as a result of following the instructions of the therapist and the deputy sheriff to put his disturbing thoughts into words, Trey M. was charged with and convicted of three counts of felony harassment—for putting these thoughts into words.
Judge McCloud concluded by this dissent:
Imposing felony criminal liability for Trey M.’s disclosures—disclosures that were requested by adults in positions of authority—contradicts controlling United States Supreme Court precedents. It undermines constitutional rights, flouts the plain language of the felony harassment statute, and risks undermining attempts to achieve the trust necessary to address juvenile mental health issues. It also opens the floodgates to prosecutions for harsh language that the speaker did not intend to be frightening in other areas, like the political context.
My concerns echo Judge McCloud, but are more expansive – Trey’s counselor made a judgment that was undermining his patient, no matter how well intentioned. The next logical extension will be that any time a therapist has concern that a juvenile patient would act out on serious violent or sexual thoughts, the therapist is going to error on the side of caution, pick up the phone, and call the police. The Washington court has applied an illogical standard to a very understandable human set of facts, triggered by a therapist who should have been ‘erring’ on the side of his patient. Troubled teens should be very wary of disclosing their deepest thoughts to their counselors, and attorneys involved will have to analyze their juvenile client’s situation accordingly.