Exceptions to Privilege When Clients Threaten Their Therapist

Psychologists, family counselors, clinical social workers, and other licensed mental health professionals often explain confidentiality to clients by assuring them that the information shared in sessions is both confidential and privileged. Privileged means that these professionals are not permitted to disclose information in court unless the client waves their right to privilege (Barsky, 2024). If you have watched the recent Netflix series, “Monsters: The Lyle and Erik Menendez Story,” you may be wondering why information shared by the Menendez brothers in psychotherapy was allowed as evidence in their criminal trial. After all, both Menendez brothers explicitly claimed privilege. This post explores why the court granted an exception to privilege, even though both the clients and their psychotherapist argued against it.

Context of the Menendez Case

The Netflix series is based on a real-life criminal case in which the Menendez brothers were charged and convicted for the 1989 murder of their parents in Beverly Hills, California. Before and after the murder, Erik Menendez attended therapy sessions with psychologist Dr. Jerome Oziel. According to the judge in Menendez v. Superior Court (1992), Oziel recorded some of his notes from sessions with Erik on an audiocassette. He also recorded parts of actual sessions involving Erik and Lyle. Oziel informed his girlfriend, Judalon Smyth, about the tapes. Smyth later informed the police about the existence of the tapes. Police seized the tapes under a search warrant. A key issue raised in the criminal trial was whether the tapes could be admitted into evidence, despite the claims of privilege by the Menendez brothers and Oziel.

The Courts’ Decisions

Initially, the trial judge decided that all the tapes could be admitted into evidence. Upon appeal, the judges determined that the recordings for two sessions could be admitted, but not the recordings for the other two sessions. The judges upheld the principle of privilege protection but determined that there is an exception to privilege when clients make threats to the lives of the therapist or other people. The judges found that Lyle did make threats and that Oziel had reason to believe that the Menendez brothers posed a danger to his wife, his girlfriend, and himself. The judge cited section 1024 of the California Evidence Code which then stated:

There is no privilege ... if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."

The judges allowed two recordings into evidence because they contained threats, which fell under the exception of privilege. However, the other two recordings were not admitted into evidence because they did not contain threats, thus preserving the protection of privilege.

Implications for Clinicians

The decision in the Menendez case did not set new precedents. The judges relied on existing statutes and case law. For clinicians in California and other states, the legal protection of privilege continues to cover most communications between clients and their licensed clinicians. Although this case determined that there was an exception when clients make threats against their therapists or others, this exception was based on the wording of a particular state law. Note that while the codes of ethics for most psychotherapists include an exception to confidentiality for situations in which a client poses a serious, imminent risk to others, they do not typically extend this exception to privilege (American Counseling Association, 2014; American Psychological Association, 1992, 2017; National Association of Social Workers, 2021). Although some states have statutes that create an exception to privilege based on threats to the therapist or others, it is crucial to check your own state statute to determine whether such an exception is established. The ethical exception to confidentiality is meant to allow clinicians to take reasonable steps to protect a threatened person from harm (Barsky, 2024), not to enable psychotherapists to testify in court if their clients have not waived their right to privilege.

The Menendez story has raised a number of other issues, including allegations against Oziel for confidentiality violations and inappropriate sexual relationships with clients. These issues go beyond the focus of this post. However, this story does remind us as clinicians that privilege is not an absolute right or protection for clients. When explaining confidentiality and privilege to clients, it is vital to explain potential exceptions. When you or your clients have questions in a particular case about what types of evidence may be shared in court despite privilege, it may be helpful to access legal advice. In situations where clients admit to serious crimes such as murder, it is especially prudent for clinicians to consult with an attorney before creating written records or audio recordings that might be subject to subpoena and admitted into evidence.