By Spaulding, Willis J.
Developments in Mental Health Law , Vol. 4, No. 1-2
Beyond Tarasoff Liability
The Tarasoff doctrine imposes a common law tort duty on a psychotherapist to warn identifiable third parties of a foreseeable risk of injury at the patient's hands. Derived from the California Supreme Court's 1976 decision, Tarasoff v. Regents of the University of California, (1) the doctrine recently has been expanded by that court explicitly to require the psychotherapist to exercise reasonable professional skill in ascertaining the extent of the risk and to impose civil liability for psychiatric harm to certain bystanders who observe the patient physically injuring the victim. (2) While a majority of state appellate courts have yet to consider whether state common law imposes such a duty, a quickly increasing number of courts have decided to adopt the Tarasoff doctrine (3) or to reject it. (4)
The conclusion of the Tarasoff court that the "protective privilege ends where the public peril begins," (5) reflects a judicial willingness to sacrifice the benefits of psychotherapy that depend on confidentiality, if in fact they do, where physical harm to a party outside the therapeutic relationship might be prevented. A similar preference for public safety over confidentiality may be found in state laws which compel an attorney to breach confidentiality to report the client's intent to commit any crime. The attorney's reporting duty addresses non-violent victimless crimes, as well as the kind that the Tarasoff doctrine is designed to interdict. On the other hand, the psychotherapist's duty under the doctrine includes not only reporting the patient's articulated intent, but exercising reasonable professional skill to predict the patient's future conduct, in either the case of the disciplinary rules of the legal profession or the tort duties of the mental health profession, the duty is forward-looking, with the purpose of preventing criminal conduct, not punishing it.
Would that strong policy in favor of such disclosures, regardless of the cost to the professional relationship, extend to the prosecution of psychotherapists for failing to disclose past criminal conduct by patients? On this question the courts, in contrast to the controversy over civil liability which followed the Tarasoff decision, have been silent. This silence is of interest because in many jurisdictions psychotherapists at least in theory might be prosecuted for common law misprision of felony or violation of a reporting statute. And while it is not likely that a psychotherapist in fact will be prosecuted for failing to disclose patient information, police and prosecutors can be expected informally to threaten prosecution to obtain access to that information in the course of an investigation.
Is There a Crime of Misprision of Felony?
The common law crime of misprision of felony consists of failing to report a felony. Unlike the crime of acting as an accessory after the fact, which requires proof that the defendant affirmatively acted to give aid to a felon, misprision of felony may consist of a mere passive failure to report a felony.
Misprision of felony is prohibited by a federal statute providing:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500.00 or imprisoned not more than three years, or both. (6)
The courts applying this statute, however, uniformly have required proof of a positive act of concealment. (7) Thus the federal crime of statutory misprision of a felony has come more closely to resemble the crime of being an accessory after the fact than common law misprision of felony.
Of the two states which have enacted statutes similar to federal law, Maine has also interpreted its law to require an affirmative act of concealment, (8) while a nineteenth century decision in New Jersey upheld the conviction of the witness to a murder for mere silence. …