Read the Full-Text Amicus Brief See APA, Task Force on Privacy and Confidentiality: Final Report Recommendation_3 (1977) cited in Siegel, Privacy, Ethics, and Confidentiality, 10 Prof. Psychol. 249, 23S-TT977): "In those areas where statutory protection for clinical-therapeutic and other personal data exists, that protection should be strengthened and refined." See also Swoboda, Elwork, Sales & Levine, Knowledge of and Compliance with Privileged Communication and Child-Abuse-Reporting Laws, 9 Prof. Psychol.448, 450 (1978) "The first line of defense against child abuse is obviously, identification. Only by knowing which children are being abused can they be treated and protected in the future." A second reason is to guarantee the integrity of the system of government exemplified by the right of the United States to prevent public dissemination of information which would genuinely endanger national security. A third is to insulate the individual from unwarranted governmental intrusion, as in the protection against self-incrimination. The former is not applicable to this case; the latter is discussed more fully in Point II of this brief. See Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications: 10 Wayne L. Rev. 609, 610 (1964). This statute substantially tracks Proposed Fed. R. Evid . 504, see 56 F.R.D. 183, 240 (1973), endorsed by an 8-1 vote of the Supreme Court but ultimately rejected by Congress for a single, more general rule. See Fed. R. Evid. 501. It was the proposed rule that was eventually adopted by Alaska Supreme Court. However, Alaska evinced even more protection for the client by indicating that the privilege was to be applied even when the psychologist was not only licensed in fact but in situations where the client reasonably believed the psychologist was licensed but was not. This protection was missing in the proposed federal rule. But now see n. 4, supra, and accompanying text. Alaska provides for the licensure of psychologists in Alaska Stat. §08.86.170.. Amici believe the state's attempt to apply the exemptions of Alaska R. Evid. 504(d)(5), (6), Brief for Petitioner at 22-27, is tortured and untenable. However, we leave it to Respondents to confront fully the state's argument. See, e.g., Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand 52 Yale L. J. 607, 609-610 (1943); R Slovenko, Psycotherapy, Confidentiality, and Privileged Communication 20-24 (1966) Minnesota Developments, Constitutional Law: Davis v. Alaska Applied to Hold that Physician-Patient Privilege Must Give Way to Accused's Right to Confrontation, 60 Minn L Rev, 1086, 1095 and n.36 (1976) see also note United States ex rel. Edney v. Smith, 425 F.Supp. 1038, 040-1041 (E.D NY 1976), aff'd, 556 F.2d 556 (2d Cir); cert. denied, 431 U.S. 958 (1977). But see Trammel v. United States, 445 U.S. "5D', 51 (1980) The physician-patient privilege is "rooted in the imperative need for trust and confidence . . . . The physician must know all that a patient can articulate in order to identify and treat disease; barriers to full disclosure would impair diagnosis and treatment." See generally Bersoff & Jain, A Practical Guide to Privileged Communications for Psychologists in The Role of the Forensic Psychologist (G Cook ed. 1980): Goldstein & Katz Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 118 Am. J Psychiat 733 (1962). See also United States ex.rel. Edney v Smith 425 F Supp. 1038, 1043 (E.D: N.Y. 1976): "Whatever merit the privacy arguments have in favor of a general physician-patient privilege, the persuasiveness is increased where the . . . relationship implicated is between psychotherapist and patient"; accord State ex rel. Juvenile Dept. of Clatsop Cty. v. Martin, 533 P.2d 780, 78T (Or.1975: "We find that most of the recent authorities, including some of those which are critical of the physician-patient privilege, support the need for a privilege in communications between a psychotherapist and his patient . . . and regardless of whether the psychotherapist is privately employed or is employed by the state." See also Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications 10 Wayne L. Rev. 609, 611 (1964) [hereinafter Fisher]: "[T]here is one, and only one, justification -- that the relationship is rendered ineffective either because the person is frightened into non-disclosure during its course, and, that the effect of such an absence of privilege is undesirable in light of the importance of the relationship to society." Regardless of the theoretical basis for the particular form of psychotherapy, this requirement is accepted by almost all mental health professionals. See Fisher at 619 n.24. In this study, of 64 psychologists, psychiatrists, social workers, and counselors surveyed, 98% agreed that confidentiality was "essential in maintaining a positive therapeutic relationship." Id. at 462. "This relationship has been deemed so essential by some that it has been argued that psychotherapy is rendered worthless in its absence." DeKraii 5 Sales, Privileged Communications of Psychologists, 13 Prof. Psychol. 372, 372 (1982) citing Epstein, Steingarten, Weinstein Nashel, Panel Report: Impact of Law on the Practice of Psychotherapy, 5 J. Psychiat. & L. 7 (1977). On this issue the majority and the dissent were in agreement. The point of departure concerned whether the psychotherapist-patient privilege was absolute or was waived when the patient put her mental status in issue. The dissent argued for an absolute privilege but the majority upheld California's patient-litigation exception. In the instant case, R. H. is not placing his mental status in issue. "[T]here is widespread agreement that confidentiality is a sine qua non for successful ... treatment" of patients with emotional and behavioral problems. Group for the Advancement of Psychiatry , Confidentiality and Privileged Communications in the Practice of Psychiatry: Report No. 45 at 92 (1960) See In re Subpoena Served on Zuniga, 52 U.S.L.W. 2107 (6TH Cir.August 23, 1983);see also Goldstein Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 118 Am J. Psychiat. 733, 735 (1962): "Treatment of the mentally ill is too important and the assurance of confidentiality too central to it, to risk jeopardizing the whole because of the relevance of some patients' statements to some legal proceedings." The oft-quoted criteria are: "(1) The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. 8J. Wigmore, Evidence, § 2285 (McNaughton rev. 1961) (emphasis in original). Accord In re Doe, 711 F.2d 1187, 1193 (2d Cir. 1983). "Without foreknowledge that confidentiality will attach, the patient will be extremely reluctant to reveal to the therapist the details of his past life and his introspective thoughts and feelings. Without the patient's confidence a [therapist]'s efforts are worthless." Id. at 417. For discussion of Lifschutz, including its constitutional dimensions, see generally Louisell & Sinclair, Reflections on the Law of Privileged Communication: The Psychotherapist-Patient Privilege 59 Calif L. Rev 30, 52-55 (1971) Rev. Suarez & Hunt, The Patient-Litigation Exception in Psychologist-Patient Privilege Cases: New Considerations for Alaska and California Since In re Lifshutz,. 1 U.C.L.A. L. Rev. 2 (1971). "The inability to obtain effective psychiatric treatment may preclude the enjoyment and exercise of many fundamental freedoms, particularly those protected by the First Amendment." In re Subpoena Served Upon Zuniga, 52 U.S.L.W. 2107 (6th Cir. August 23, 1983) This concept has been interpreted in Alaska as "a right of personal autonomy in relation to choices affecting an individual's personal life." Ravin v. State, 527 P.2d 494, 500 (Alaska 1975). Boddie v. Connecticut, 401 U.S. 371 (1971). Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976). Carey v. Population Servs. Int'1., 431 U.S. 678 (1977) Parham v. J. L., 442 U.S. 584 (1979); Wisconsin v. Yoder, 406 U. S. 205 (1972): Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923) See also Lora v. Bd. of Educ., 74 F.R.D. 565, 570 (E.D. N.Y. 1977);Caesar v. Mountanos, 542 F. 2d 1064,1072 (9th Cir. 1976) (Hufstedler, J.,dissenting); In re B. 394 A.2d 419, 424 (Pa. 1979). In addition, the privacy right has been extended to freedom from governmental surveillance anal intrusion. Katz v. United States, 389 U.S. 347 (1967). Pound called it a "demand which the individual may make that his private personal affairs shall not be laid bare to the world." Pound, Interests of Personality, 28 Harv. L. Rev. 343, 362 (1915). "Some examples would include the patients of a . . . psychologist . . .who specialized in treating sexual problems . . . ." Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 409, 480 (Alaska 1977); cf. In re Pebsworth, 705 F.2d 261, 263 (7th Ci r. 1983) (information involving detailed psychological profiles or substantive accounts of therapy sessions arguably infringes on psychotherapist-patient privilege). One court has indicated that "the whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments." City and County of San Francisco v. Superior Court, 37 Cal.2d 277, 282, 231 P.2d , 26, 28 (1951). Testimonial privileges are permitted when the exclusion of relevant evidence "has a public good transcending the normally predominant principles of utilizing all rational means for ascertaining truth". Trammel v. United States, 445 U.S. 40, 50 (1980). This is also and perhaps more especially true with regard to revelations which would confirm the allegations of incest. These disclosures when gleaned during court-ordered therapy are also protected on fifth amendment grounds. See Point II. About this basic point the majority and Justice Stewart were in agreement. The issue dividing the court was whether the privilege should extend to nonlicensed practitioners. The majority restricted the privilege only to licensed psychologists. In the instant case, this is not an issue as there is no question that Dr. Wetherhorn is a psychologist licensed in Alaska. See also In re Brenda H., 402 A.2d 169, 172 (N.H. 1979): Effective therapy "is crucial to the preservation of family unity, which is the goal" of child abuse reporting statutes like Alaska's. The purposes explicated by Master Hitchcock have been specifically recognised as preeminent when the disposition of child abusers is considered. Sen. (now ex-Vice President) Mondale responded to a witness during hearings to develop a National Center on Child Abuse and Neglect: This is a very difficult problem for many reasons. No. 1, everybody is afraid of getting in trouble with the law, going to jail, and having a criminal record. Some of them certainly deserve it. But if we want to emphasize care and treatment and prevention, they have to feel free to come in and get it. Right now . . . they do not know whether they are going to get help or whether they are going to go to jail. To Establish a -National Center on Child Abuse and Neglect, to Provide Financial Assistance for a Demonstration Program for the Prevention, Identification, and Treatment of Child Abuse and Neglect and for Other Purposes, 1973: Hearings on S. 1191 Before the Subcomm. On Childred and Youth of the Sentate Comm. On Labor and Public Welfare, 93rd Cong., 1st Sess. 150 (1977) [hereinafter Child Abuse Hearings]. To the same effect, Sen. Mondale also said, "[F]or a whole host of reasons, and parents when they know they have a problem . . . are afraid to come in for fear that they are going to be indicted for a crime . . . ." Id. at 137. Privacy should be particularly protected in the cases of patients who are being treated for sexual problems by psychologists. See Falcon v. Pub. Offices Comm'n, 570 P.2d 469, 480 (Alaska 1977). "[S]ociety has an interest in successful treatment of mental illness because of the possibility that a mentally ill person will pose a danger to the community." In re Subpoena Served Upon Zuniga, 52 U.S.L.W. 2107 (6th Cir. August 23, 1983) (justifying the creation of a psychotherapist-patient privilege). See Guernsey, The Psychotherapist-Patient Privilege in Child Placement: A Relevancy Analysis, Vill. L. Rev. 955, 961 (1981): "The likelihood of discouraging people from consulting a psychotherapist is even greater in child custody disputes, where the party who needs help may fear that confidences revealed during therapy will be used against them in later court appearances. In this regard, therefore, the psychotherapist patient privilege is different, and perhaps more necessary, than the physician-patient privilege..." See also Saltzburg, Privileges and Professionals, 66 Va. L. Rev. 597, 650 (1980) "Courts must recognize not only the legitimate needs of litigants, but also their private out-of-court relationships must be fostered and protected despite some burdens on the judicial process. Competing values must be harmonized; each must yield something to the other. Courts enmeshed in litigation must understand that there is more to life than litigation, and must strike a balance with that in mind." The privilege against self-incrimination should be more correctly referred to as a right; it has the same status as other constitutional rights and is more than a mere concession that the government can evoke. L. Levy, Origins of the Fifth Amendment at vii (1968). However, conforming to convention, it will be referred to as a privilege in this Brief. See also Brief for Petitioner at 16: "Obtaining incriminating evidence from those who have to report the crime anyway is the only way to completely fulfill [the child protection purposes of the child abuse reporting law];" Brief for State on Psychotherapist Privilege, Superior Court at 2; "The general area; about which the district attorney and the grand jury will question Dr.. Weatherhorn (sic) are: (1) Whether . . . [RH] has admitted to him that he molested his daughters, SH and OH. (2) A meeting approximately. two weeks ago at which Dr. Weatherhorn (sic), Dr. Johnstone, SH, and Mrs. . . [H] were present in which Mrs. . . [H] made statements to SH about the incest allegations SH was making against her father." See Malloy v. Hogan, 378 U.S. 1 (1964). "The fundamental right not to incriminate oneself should apply at every stage of criminal inquiry or proceedings regardless of judge-made exclusionary or evidentiary rules." Scott v. State, 519 P.2d 774, 786 (Alaska 1974). The fifth amendment "was designed to protect a putative defendant against the compulsion to incriminate himself arising from an official custodial interrogation. The compulsion can occur . . . from an interrogation conducted by a court-appointed psychiatrist as well as a police officer. Battie v. Estelle, 655 F.2d 692, 699 (5th Cir. 1981). In fact, the evaluation at Issue in Battie was performed by a psychologist engaged by the state, not a psychiatrist. The court concluded that the psychologist "had been appointed by the state trial court to conduct the examination and therefore the custodial interrogation was conduct by an agent of the state." Id. at 699-700. "To allow a psychiatrist to testify as to guilt or innocence of the defendant by relating admissions obtained in a psychiatric study would be a gross subterfuge.'' United States v. Julian, 469 F.2d 371, 376 (10th Cir. 1972). "It is one thing to conclude that no confidential relationship arises as between an interviewing psychiatrist . . . and a court referred patient, and quite another to decide that a patient . . , who has been committed for treatment rather than an evaluation is not entitled to that confidentiality the relationship requires if it is to be meaningful and therapeutic." Foster, Pretrial Psychiatric Disclosures, 51 N.Y.U. L. Rev. 1090, 1091 (1976). APA, Ethical Principles of Psychologists, 36 Am. Psychol. 633 (1981) [hereinafter Ethical Principals]. APA , Standards for Providers of Psychological Services, 32 Am. Psychol. 495 (1977) [hereinafter Standards] APA, Specialty Guidelines for the Deliver of Services by Clinical Psychologists, 36 Am Psychol. 640 (1981) [herinafter Guidelines] "Psychologists have the responsibility to make clear and explicit the nature of their role . . . ." APA, Guidelines for Conditions of Employment of Psychologists, 27 Am. Psychol. 331, 332 (1972). 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