Judicial Notebook

Under the Tarasoff rule (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 [1976]), a psychotherapist who is confronted with a patient who makes a credible threat against another identified person must take reasonable steps to prevent harm to that person. Obviously, one such step is warning the person at risk.

A recent criminal case, People v. Felix (California Court of Appeals, Second District, No. B147530, 2001) tested the limits of this "duty to warn" doctrine.

Case background

In the case, Fernando Felix was in jail awaiting trial on charges that he kidnapped his former girlfriend, Julia Luckhart. While there, he was charged with making terroristic threats after he told his psychologist, Carl Levinger, that "he was thinking about how he was going to kill [Luckhart] once he was released from jail." Felix also told the psychologist "that if he saw [Luckhart] with somebody else that he would shoot her and then the kids and then himself." He added that "one of his friends would kill her if he asked him to."

Three days later, Levinger telephoned Luckhart. While the psychologist was not allowed to testify to the content of that call, Luckhart's response to the psychologist's warning-- "Oh, my God, he's going to try to kill me"--was admitted into evidence.

As a result of making these allegedly "terroristic threats" during psychotherapy, Felix was charged and convicted under a California statute providing that any person who willfully threatens to commit a crime that would result in death or great bodily injury to another person "shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

On appeal, Felix argued that the state had failed to prove that the statements he made to the psychologist had been conveyed to Luckhart. Moreover, Felix argued that his words were not intended to be threats but merely statements made as part of his psychotherapy. Last October, a California Court of Appeals agreed with Felix and overturned his conviction. On the first point, the court reasoned that since the trial judge had refused, on hearsay grounds, to allow the psychologist to specify what he had told Luckhart about the nature of the danger she was in, the state had failed to establish a necessary element of the offense: "that the threat actually caused the person threatened 'to be in sustained fear...'" In so holding, the court rejected the state's contention that such fear could have been inferred from Luckhart's shocked response to the psychologist's telephone call. The court noted that: "A therapist is not required to disclose the patient's statements when giving a Tarasoff warning. Levinger could have achieved the same reaction from Luckhart, without mentioning Felix's statements, by simply warning her that Felix was dangerous."

The court also agreed that there was no proof that Felix ever intended his threatening statements to be communicated to Luckhart. As the court saw it, the law prohibiting terroristic threats "was not enacted to punish emotional outbursts; it targets only those who try to instill fear in others." Quoting People v. Teal (61 Cal. App. 4th 277 [1998]), the court said: "One may, in private, curse one's enemies, pummel pillows and shout revenge for real or imagined wrongs--safe from...sanction."

Rejecting the state's contention that Felix "intended for the threat to be communicated to Luckhart, as it was understandable for [him] to believe Dr. Levinger would warn Luckhart," the court noted that Felix had made the statements during psychotherapy, "a setting where the patient has an expectation of confidentiality."

Moreover, the court held that there was "no evidence that Felix knew about Tarasoff...knew Levinger would disclose his statements to Luckhart or that he wanted them to be revealed."

Finally, articulating the policy underlying its decision, the court said: "[T]o apply the [state's] position here would mean that those who need therapy for their homicidal thoughts would not seek it. They could view the jail psychologist as a police agent and the therapy session as self-incriminating. Instead of exposing their thoughts for treatment they might repress them and act on them. Such a result would not further the interests of victims, psychotherapy, or the criminal justice system."

Implications

While many mental health professionals will no doubt applaud this reasoning, some members of the law enforcement community have criticized the court's decision in Felix, claiming that it erodes the rights of potential victims and undermines their safety. However, while reinforcing the confidential nature of the psychotherapeutic relationship, the Felix decision does nothing to limit psychotherapists' existing duties under Tarasoff. Neither does the decision limit the state's right to prosecute those who make threats against others, even in the course of psychotherapy, as long as the state can prove that the person making the threat intended that it be communicated directly or indirectly to the person threatened.