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SATI e-News: January 27,2003
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Mass.
Crisis Center Safeguards Victim's Privacy at High Cost |
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The Women's Resource Center (WRC) in
Lawrence, Massachusetts has refused to comply with the order of
an Essex Superior Court judge who ordered them to release the
records of a rape victim to a defendant in a criminal case.
Starting January 31, the WRC faces a fine of $500 a day for
every day they fail to comply with the order, unless a judge at
the state Appeals Court or Supreme Judicial Court puts a hold on
the fine pending full appeal before January 31.
Wendy Murphy, the pro bono attorney representing the WRC, told
SATI e-News that, "there is a disturbing trend nationwide
of defense attorneys seeking and obtaining access to privileged
counseling files simply for the asking." Murphy noted that
recent studies and federal research studies have found that rape
reporting and prosecution rates will diminish if victims cannot
be promised meaningful confidentiality when they seek crisis
counseling in the aftermath of violence.
In her appeal, Murphy asked that the court suspend the
imposition of the fine until the full appellate court has had a
chance to rule. She also proposed that if the penalty is not
suspended, the court consider an alternative penalty, whereby
500 people will each serve one day in jail, until the appeal is
decided. This jail option would be imposed in lieu of the
$500/day fine. She submitted to the Court a list of 500
volunteers from around the country, as well as Canada and Puerto
Rico, who have agreed to serve a one-day sentence, according to
the Boston Herald.
Murphy calls the jail option the "Boston 500" plan and it has
already generated a buzz of media attention, including coverage
last Tuesday on CNN. Meanwhile, the board of the WRC is
considering their options in the event they lose their appeal
and are forced to pay the financial penalty, which they can ill
afford. WRC is a dual agency, providing both sexual assault and
domestic violence/shelter services for victims.
The practice of defense attorneys seeking rape victims' mental
health records is hardly limited to Massachusetts. According to
Murphy, defense attorneys all across the country regularly
demand access to victims' counseling and mental health records
so they can search through private files in the hope of finding
something that can be used to raise doubts about the victims'
credibility at trial. Defense attorneys also know that victims
sometimes walk away from criminal cases when forced to choose
between prosecution and privacy.
In the Massachusetts case, the Boston Herald reported
that defense attorneys learned that the 16 year-old girl had
visited the crisis center from her grandmother, who was
questioned by a private investigator hired by the defense.
According to Murphy, the grandmother did not realize that the
information she was disclosing was confidential, nor did she
know she had a right not to talk to the investigator.
Murphy told SATI e-News that many states have counseling
privileges that "look good on the books because the legislature
has passed a "privilege" statute or the courts have created a
"balancing" test that seems to demand respect for privacy
rights." "But in practice," Murphy adds, "it is commonplace to
see judges simply ignore confidentiality concerns and order
disclosure of personal information based on nothing more than
the defendant's request for access."
Murphy told e-News that, "this is increasingly the case
in Massachusetts and in other states because victims are
relatively voiceless in the criminal justice system. Victims are
not parties to criminal proceedings, they are not represented by
counsel and are not equipped to challenge unlawful court orders
and subpoenas for private files."
"Simply put, women rarely even know that they have privacy
rights, let alone, have the knowledge, ability or resources to
demand respect for their rights," Murphy concluded.
Two recent privacy battles in Utah led to favorable rulings for
the victim. The first case was State v. Damond Blake, in which
36 year-old Blake was charged with the 1998 second-degree felony
sexual abuse of a child for molesting his then-girlfriend's
12-year old daughter, according to the Salt Lake Tribune.
In the Fall of 2002, the trial judge denied the request of
Blake's attorney for a hearing to inquire about the girl's
sexual history, and specifically whether she had made previous
allegations of abuse or had used drugs or alcohol. The defense
uncovered that the girl had a juvenile record for theft, and had
also obtained reports from the Division of Child and Family
Services, as well as school reports. The trial court judge
determined that the girl's mental health and other records were
privileged material not subject to discovery, as reported in the
Salt Lake Tribune.
The Utah Supreme Court came down on the side of victims' rights,
ruling in November 2002 that the defense could not sift through
mental health records seeking evidence of prior accusations of
sexual abuse or other evidence that could impugn the victim,
without a strong showing that some relevant evidence actually
exists, according to the Salt Lake Tribune.
The Utah Attorney General's Office called it an important
victory for rape victims. "This [ruling] . . . . sends a strong
message that defense attorneys do not have the right to put
victims on trial," said Marian Decker, the assistant attorney
general who argued the state's case.
Two weeks later, the Utah Supreme Court issued a similar ruling,
this time in the case of an adult rape victim. The Court ruled
unanimously that records of conversations between adult rape
victims and crisis center counselors must be kept private and
cannot be opened by courts, according to the Salt Lake
Tribune. The Supreme Court based this ruling on an
interpretation of the state's Confidential Communications for
Sexual Assault Act.
Jamee Roberts, Executive Director of Salt Lake City's Rape
Recovery Center, welcomed the ruling. Roberts told the Salt
Lake Tribune, "Defense attorneys come up with this tactic
when they don't have anything else. There really isn't any
probative value to what is said between a client and a counselor
anyway. We are not there to believe or disbelieve--what we talk
about is emotional feeling, which isn't going to be provable in
a courtroom anyway."
Two years earlier, the Orange County Rape Crisis Center of North
Carolina was in the midst of a similar dispute when the District
Attorney reached a plea with the defendant. In an attempt to
prevent a similar conflict in the future, the crisis center
drafted and advanced legislation which provides qualified
protection for the records of rape victims. The legislation
(Session Law 2001-277) passed and became effective December
2001, according to the North Carolina Coalition Against Sexual
Assault..
"500 Would Go To Jail To Protect Alleged Rape Victim's Privacy,"
Boston Herald, January 15, 2003.
"Victims Lose Privacy when Court Releases DSS Records,"
Boston Herald, January 13, 2003.
"Rape Victim Records Ruled Off-Limits," Salt Lake Tribune,
December 11, 2002.
"A.G.
Wins Important Victory For Rape Victims," Office of the Utah
Attorney General, November 26, 2002
"Your
Privacy &Confidentiality," North Carolina Coalition Against
Sexual Assault
"Rape
Victim Mental Records Off-Limits," Salt Lake Tribune,
November 27, 2002
"Why are Defendants in Some States Getting Pretrial Access to
Victims' Therapy Records?" by Wendy Murphy, Sexual Assault
Report, July/August 2001, page 83. |
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