Tarasoff, Megan, and Mill

Abstract

This chapter concerns the balancing of individual privacy interests with societal protection interests. First, I examine Tarasoff laws, which address the duty of psychotherapists to warn and protect those who might be potential victims of their clients, even though such a duty violates the client’s rights to confidentiality and privacy. Although these rulings have a solid foundation in John Stuart Mill’s harm principle, they fail to meet several of the conditions upon which Mill insists. First, Mill claims that the threat of harm must be to a specific and readily identifiable person. An abstract threat to others in general does not justify interference with the liberty of an individual. Second, the harm should be reasonably predictable. A vague suspicion that harm might be done is not enough. Third, additional obligations may arise in the context of certain special relationships. If a relationship between two parties, based on certain expectations, has particular consequences for others, both parties have obligations to those others. To enhance practicability, I add a condition of consistency in content and application. It is not appropriate to have conflicting laws in various areas of the United States. To remedy the deficiencies of current Tarasoff laws, I suggest that they be modified to more closely resemble Megan’s Law, which addresses the duty of law enforcement agencies to notify potential victims of convicted sex offenders. Megan’s Law provides a good model because, although also grounded in Mill’s harm principle, it meets his additional conditions to justify state interference with the liberty interests of the individual. I conclude, however, with a cautionary note that some recent events indicate a disturbing trend in which Megan’s Law is being expanded beyond its legitimate scope of exercise. The law goes too far when the consequences of its application themselves foster harm to others.