The consensual sexual activity reporting rules under the Child Abuse and Neglect Reporting Act (CANRA) are quite complex and require practitioners to consider multiple factors, such as the age(s) of the minor(s) participating in the sexual activity, whether the sexual activity involved abuse or exploitation of minors, etc.

As if these rules were not already a source of confusion for many therapists, a 2020 law called “Assembly Bill 1145” (hereafter “AB 1145”) introduced significant, albeit helpful and necessary, changes to the mandated reporting rules for situations involving minors engaged in certain forms of consensual sexual activity. To reduce the stress and confusion practitioners often experience when faced with these reporting scenarios, this article will provide an updated break down of the rules for reporting consensual sexual activity involving minors.

Therapists’ Mandated Reporting Duty
LMFTs¹, AMFTs², MFT trainees³, and other professionals listed in California Penal Code Section 11165.7 are considered mandated reporters, under CANRA. Accordingly, when acting in their professional capacities, mandated reporters must report reasonably suspected instances of child abuse and neglect.⁴ CANRA identifies several categories of abuse and neglect that must be reported should a therapist reasonably suspect that the criteria for a reporting category has been met. These categories include, but are not limited to, unlawful corporal punishment⁵, neglect⁶, child endangerment⁷, and sexual abuse.⁸

The goal of this article is to clarify when therapists are required to report consensual sexual activity involving minors. For this reason, our primary focus will be the “sexual assault” mandated reporting category (a subcategory of the “sexual abuse” mandated reporting category).

For additional information regarding CANRA’s mandated child abuse and neglect reporting categories and the procedures for making such reports, see A Look at the Child Abuse and Neglect Reporting Act, by CAMFT Managing Director for Legal Affairs, Ann Tran-Lien. For information about therapists’ mandated reporting obligations in circumstances involving minors and sexting, see Let’s Talk About Sext, by CAMFT Staff Attorney, Luke Martin. These articles can be found within the Legal Articles section of the CAMFT website.

CANRA and “Sexual Assault” Reporting
CANRA defines “sexual assault” as a reportable⁹ form of “sexual abuse.”¹⁰ This provision goes on to define sexual assault as conduct that violates one or more of the following penal code sections:

• Rape (Penal Code Section 261);
• Statutory Rape (subdivision (d) of Penal Code Section 261.5);
• Rape in Concert (Penal Code Section 264.1);
• Incest (Penal Code Section 285);
• Sodomy (Penal Code Section 286);
• Oral Copulation (Penal Code Section 287 or former Penal Code Section 288a);
• Lewd or Lascivious Acts Upon a Child (subdivision (a) or (b) of, or paragraph (1) of subdivision (c) of, Penal Code Section 288);
• Sexual Penetration (Penal Code Section 289); or
• Child Molestation (Penal Code Section 647.6).

Accordingly, sodomy, oral copulation, sexual penetration, and lewd or lascivious acts upon a child are defined as reportable sexual activities that fall under CANRA’s “sexual assault” category of “sexual abuse.”

Note: Mandated reports made under CANRA’s
“sexual penetration” category generally require circumstances in which sexual penetration of a minor involved the use of foreign objects, substances, instruments, or devices, or unknown objects.¹¹ This distinction will be discussed in greater detail at the end of this article.

Discriminatory Impact of Reporting Requirements for Consensual Sexual Activity Involving Minors Prior to the Passage of AB 1145
As previously discussed, sodomy, oral copulation, and sexual penetration are subcategories of “sexual assault,” which falls under the “sexual abuse” mandated reporting category.¹² For many years, CANRA required therapists and other mandated reporters acting in their professional capacities to report all reasonably suspected instances of minors engaged in sodomy, oral copulation, or sexual penetration. The law did not include exceptions for instances in which such acts occurred between similarly aged, consenting minors.

This reporting requirement had a discriminatory impact on LGBT minors because it treated vaginal sexual intercourse, a sexual practice most commonly engaged in by straight, cisgender people, differently than sodomy, oral copulation, and sexual penetration, some of the most common sexual practices engaged in by LGBT people. This led to circumstances in which, for example, a therapist would not be able to report consensual vaginal sexual intercourse involving two straight, cisgender 17-year-olds, but would be required to report consensual sodomy involving two LGBT 17-year-olds.

In essence, by requiring mandated reporters to report all reasonably suspected instances of sodomy, oral copulation, and sexual penetration involving minors, CANRA treated most forms of sexual activity involving LGBT minors as “sexual assault” regardless of the ages of the individuals involved, consent, etc. Although the harmful implications of this reporting requirement were as significant as they were obvious, therapists and other mandated reporters who failed to comply could have faced serious consequences, such as criminal prosecution.¹³

AB 1145 Modifies CANRA to Address the Discriminatory Impact of Reporting Requirements for Consensual Sexual Activity Involving Minors
Effective January 1, 2021, AB 1145 modified the mandated reporting requirements for voluntary / consensual sodomy, oral copulation, and sexual penetration involving minors. Pursuant to this new law, CANRA provides that, for mandated reporting purposes, sexual assault “does not include voluntary conduct in violation of [Penal Code] Section[s] 286 [sodomy], 287 [oral copulation], or 289 [sexual penetration], or former Section 288a [also oral copulation], if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.”

However, AB 1145 does not modify the mandated reporting requirements for CANRA’s “lewd or lascivious acts upon a child” category of sexual assault. Therefore, the law still requires mandated reporters acting within their professional capacities to report reasonably suspected instances of lewd or lascivious acts with or upon minors as sexual assault.

Therapists’ Duty to Report Lewd or Lascivious Acts Upon Children
Penal Code Section 288 generally defines CANRA’s “lewd or lascivious acts upon a child” mandated reporting category as:

1. a person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child; or
2. a person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child if the person is ten or more years older than the child and the child is 14 or 15 years old.

With these definitions in mind, and in light of case law interpreting these definitions, here is a breakdown of how mandated reporters can approach reporting consensual sexual activity involving minors under the lewd or lascivious acts reporting category, based on the ages of the individuals participating:

Scenario 1: Consensual Sexual Activity in Which Both / All Participants Are Under 14 Years Old
In Planned Parenthood Affiliates of California v. John K. Van De Kamp, the California
Court of Appeal held that consensual sexual activity between minors under 14 who are of similar ages is not reportable if there is no indication of abuse.¹⁴ Accordingly, if minors who are under 14 and of similar ages are engaged in consensual sexual activity (with no indication of abuse), this sexual activity would not be reportable- even if the sexual activity includes sodomy, oral copulation, or sexual penetration.

However, CANRA requires therapists and other mandated reporters acting in their professional capacities to report reasonably suspected instances of minors under 14 engaging in consensual sexual activity, including voluntary sodomy, oral copulation, and sexual penetration, if: 1) the minors are not of similar ages; or 2) there are indicators that the sexual activity involved abuse.¹⁵

Scenario 2: Consensual Sexual Activity Involving a Minor Under 14 and a Person 14 Years Old or Older

CANRA requires therapists and other mandated reporters acting in their professional capacities to report reasonably suspected instances of lewd or lascivious acts upon children, which may involve consensual sodomy, oral copulation, or sexual penetration, if the acts involved the participation of minors under 14 and individuals 14 years old or older.¹⁶

Scenario 3: Consensual Sexual Activity Involving a 14 or 15-Year-Old Minor and a Person Ten or More Years Older Than the Minor
CANRA requires therapists and other mandated reporters acting in their professional capacities to report reasonably suspected instances of lewd or lascivious acts upon children, which may involve consensual sodomy, oral copulation, or sexual penetration, if the acts involved the participation of children who are 14 or 15 years old and individuals at least ten years older than the children.¹⁷

Scenario 4: Consensual Sodomy, Oral Copulation, and/or Sexual Penetration Involving a Minor 16 Years Old or Older and a Person 21 Years Old or Older
Although sodomy, oral copulation, and sexual penetration are still listed as mandated reporting categories, under CANRA, AB 1145 prohibits mandated reporters from reporting reasonably suspected instances of minors consensually engaging in these acts unless 1) the acts involve minors under 16 and persons 21 years old or older; or 2) there are indications that the sexual activity involved abuse.

Practice Pointer 1: Nonconsensual Sexual Acts Committed Against Minors are Always Reportable
The previously discussed scenarios highlight reporting requirements for various forms of consensual sexual activity involving minors. If a therapist or other mandated reporter acting in their professional capacity reasonably suspects that a person currently under the age of 18 has been the victim of nonconsensual sexual activity, CANRA requires the mandated reporter to report that nonconsensual sexual activity, under the “sexual assault” mandated reporting category, regardless of the perpetrator’s age.

For more information about reporting consensual sexual activity involving minors, see the consensual sexual activity reporting table in the article Reporting Consensual Sexual Activity with and Between Minors, by CAMFT Deputy Executive Director Cathy Atkins.

Practice Pointer 2: Be Aware of Which Sexual Activities Constitute “Sexual Penetration,” for Mandated Reporting Purposes
CANRA requires therapists to report various, and primarily involuntary / nonconsensual, acts constituting “sexual penetration” if those acts: 1) involve minors; and 2) violate Penal Code Section 289.¹⁸ For purposes of mandated reporting, “sexual penetration” refers to “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”¹⁹ In the child abuse reporting context, the term “[f]oreign object, substance, instrument, or device” includes “any part of the body, except a sexual organ.”²⁰

Taken together, these definitions clarify that the sexual penetration mandated reporting category generally²¹ does not include sexual acts in which a sexual organ is used to penetrate a genital or anal opening of another person. This reporting category typically includes sexual acts involving genital or anal penetration of another person using foreign objects, substances, instruments, or devices, including fingers or other body parts that are not sexual organs.

Conclusion
Although AB 1145 exempts voluntary sodomy, oral copulation, and sexual penetration from the mandated reporting requirement in certain instances, therapists should still be mindful of their duties to report lewd or lascivious acts upon children, as specified in this article- even if those lewd or lascivious acts involve voluntary sodomy, oral copulation, or sexual penetration. CAMFT members with questions about the mandated reporting rules and distinctions discussed in this article can reach out to CAMFT’s legal department hotline during normal business hours.

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Brad J. Muldrow, JD, is a staff attorney for CAMFT. Brad is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes
¹ See Penal Code Section 11165.7(a)(21).
² See Penal Code Section 11165.7(a)(25).
³ See Penal Code Section 11165.7(a)(24).
⁴ See Penal Code Section 11166(a).
⁵ See Penal Code Section 11165.4.
⁶ See Penal Code Section 11165.2.
⁷ See Penal Code Section 11165.3.
⁸ See Penal Code Section 11165.1.
⁹ For purposes of this article, the term “reportable” refers to acts that mandated reporters operating in their professional capacities are legally obligated to report, under CANRA, should they reasonably suspect the acts occurred.
¹⁰ See Penal Code Section 11165.1(a).
¹¹ See Penal Code Sections 289(k)(1); 11165(a).
¹² See Penal Code Section 11165.1(a).
¹³ Penal Code Section 11166(c) provides “A mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by [CANRA] is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine.”
¹⁴ Planned Parenthood Affiliates of California v. John K. Van De Kamp (1986) 181 Cal. App. 3d 245. Note: Per Penal Code Section 11165.1(a) (i.e. CANRA), acts in violation of Penal Code Section 288(a), (b), or (c) (lewd or lascivious acts upon a child) fall under the “sexual assault” mandated reporting category. Penal Code Section 288(a) provides that “lewd or lascivious acts upon a child” include acts in which a person “willfully and lewdly commits any lewd or lascivious act…upon or with the body, or any part or member thereof, of a child who is under the age of 14 years.” (emphasis added) This code section does not include an exception for consensual sexual activity between similarly aged minors younger than 14 where there are no indicators of abuse. That exception is derived from the California Court of Appeal’s ruling in the Planned Parenthood case.
¹⁵ See Planned Parenthood Affiliates of California v. John K. Van De Kamp (1986) 181 Cal. App. 3d 245; Penal Code Sections 289(a); 11165(a).
¹⁶ See Penal Code Sections 288(a); 11165.1(a).
¹⁷ See Penal Code Sections 288(c); 11165.1(a)
¹⁸ Penal Code Section 289 prohibits various forms of sexual penetration, including, but not limited to: 1) sexual penetration accomplished against another person’s will; 2) sexual penetration in which the victim is unable to give legal consent due to a mental disorder or a developmental or physical disability; and 3) sexual penetration in which the victim is unconscious or asleep; etc. 19 See Penal Code Section 289(k)(1); 11165(a).
²⁰ See Penal Code Section 289(k)(2).
²¹ It should be noted that, under Penal Code Section 289(k)(3), the term “unknown object” includes “any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.” Sexual acts in which unknown object are used by individuals to penetrate the genital or anal openings of other individuals are reportable, under CANRA, if the acts violate Penal Code Section 289.

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.