180 7 Court and the Legal System—Civil Forensicshave even extended 'Tarasojj to include violence against property, and have extended
therapist responsibility to include violent acts where the therapist "should have "
known that a danger existed. Further, courts have generally not specified what this
protection entails. What, exactly, a therapist must do to protect third parties remains
extremely vague (Oppenheimer & Swanson, 1990).
Moreover, questions remain about dangerousness and its prediction. One of
the greatest difficulties pertaining to this is determining when a client is truly
dangerous to a third party and when he or she is merely fantasizing (Oppenheimer
& Swanson, 1990). Is it asking too much of psychologists to be able to identify
when a client may "really do" what he or she has brought to therapists' attention?
If the therapist remains "on the safe side," he or she may be unnecessarily violating
another's confidentiality rights. If that person does the opposite, he or she risks being
held legally responsible for harm that may be inflicted upon another individual.
Additionally, how can we hold therapists responsible for the violent behavior of
their clients when predicting whether a client will engage in a violent act is beyond
the current ability of psychology (Barefoot v. Estelle, 1983; Monahan, 1981)? Studies
have shown that psychology's success rate in predicting dangerous behavior is a mere
33-40%. Thus, we must ask ourselves if holding the therapist legally responsible is
justifiable when the toss of a coin could better predict such acts.
Let us now return to the case of Peter. One of the most controversial aspects of the
duty to warn involves the potentially violent sexual behavior of those infected with
HIV. There are varying professional opinions as to the implications for psychologists
of duty to warn with regard to client HIV infection. Some authors have pointed
out that the sexual activity, not the person, is responsible for the risk (Kain, 1988;
D. Martin, 1989). Thus, because different types of sexual activity create different
risks, the level of danger must be addressed with specific regard to the activity For
example, the therapist must consider whether the activity involves the exchange of
bodily fluids and whether preventive measures (e.g., protected sex) are being taken
(Stanard & Hazier, 1995).
Others have suggested that the fatal nature of the disease creates a duty to warn
which surmounts any ethical obligations to confidentiality. These commentators
recommend directly informing the client's sexual partners if the client refuses to do
so, and, where unidentified partners are at risk, informing the appropriate author-
ities (Gray & Harding, 1988). Regardless of the varying opinions, the majority of
professionals seem to agree that HIV-positive clients engaging in high-risk behavior
with uninformed partners are subject to Tarasojf (Stanard & Hazier, 1995). In other
words, they are dangerous and steps must be taken to assure that, if a substantial
threat exists, third parties are warned. Kain (1988), however, states that with regard
to unidentified third parties, the "identifiable victim" criterion of Tarasoff is absent.
Ciiven this, he believes that breaching confidentiality in such situations is "highly
questionable" (p. 224).
Thus, with regard to HIV and duty to warn for psychologists, several impor-
tant issues must be addressed. First, the nature of the threat—whether specific.