ARTICLES
Minimizing the Likelihood of Discovery of Victims' Counseling Records and Other Personal Information in Criminal Cases: Massachusetts Gives a Nod to a Constitutional Right to Confidentiality
Wendy J. Murphy*
Introduction
Over the past decade, it has become increasingly common for defense counsel in criminal cases to seek access to personal, confidential, and even privileged information of victims and witnesses, including records of therapeutic counseling.(1) This practice has become particularly routine in matters involving women victims of violence. Some argue that such defense requests represent nothing more than an appropriate and overdue expansion of defendants' discovery rights. Others see the trend as part of a systemic assault on women victims of violence and evidence of gender-bias in the criminal common law. As with many things, the truth probably lies somewhere in between. Only a few courts have addressed this issue and while the procedures and standards vary, criminal defendants only have the right to seek disclosure where expressly authorized by statute or rule or where the confidential information is in the possession, custody, or control of the government and access is allowed under standards adopted by common law.
One thing is certain, and should be clear from the outset: Even the bedrock constitutional rights of the accused bend to the preservation of competing social interests. Thus, an honest view of this controversy requires an acknowledgment of the relative extent to which certain interests are deemed worthy of preservation in the criminal common law. To be sure, interests characterized as "constitutional" are generally entitled to the greatest weight as against the equally fundamental rights of the accused.
In July, 1997 the Massachusetts Supreme Judicial Court (SJC) acknowledged for the first time that victims of crime may have a "constitutional right to confidentiality" in their therapeutic counseling records.(2) This recognition promises to bring much needed weight to victims' rights, particularly in cases where the defendant chooses to reach out beyond the government's file and seek personal discovery directly from the victim.
This Article is divided into eight parts. Part II discusses the evolution of the constitutional interest for victims in this area of the law in Massachusetts, with references to federal and other states' rulings where appropriate.(3) Part III addresses confidentiality and its constitutional parameters in light of the holding in Commonwealth v. Tripolone.(4) Part IV addresses the need to develop procedural due process rights (and other rights) for victims when their constitutionally protected confidential interests are at stake.(5) Part V proposes the adoption of a two-tiered strict scrutiny analysis.(6) Part VI discusses the important public policy considerations implicated in the disclosure of confidential records.(7) Finally, Part VII proposes the adoption of a "don't ask/don't tell" policy for prosecutors, law enforcement officials, and victims in order to minimize the vulnerability of confidential information of private citizens in criminal cases.(8)
The Evolution of Constitutionally Protected Confidentiality Rights for Crime Victims in Massachusetts
In 1985, the Massachusetts legislature enacted an "absolute" statutory privilege to protect the confidentiality of communications between a rape victim and her crisis counselor.(9) The following year, a juvenile defendant lodged a constitutional challenge to the "absolute" nature of the privilege statute, arguing that an absolute bar violated the defendant's federal and state constitutional fair trial rights.(10) The court issued what was effectively an advisory opinion, given that the matter had not yet ripened into an actual controversy, stating that although rape crisis counseling is protected by an absolute statutory privilege commensurate with the priest/penitent privilege, such an "absolute" bar cannot withstand muster under Article 12 of the Massachusetts Constitution.(11) For this reason, the court held that the privilege should, "in certain circumstances," bend to the rights of the accused.(12)
While it was not clear whether the court saw the source of the defendant's interest as the right to confrontation, compulsory process, or due process, it was clear that the interest was to be found in the state constitution, often interpreted as providing greater rights to the accused than the Federal Constitution.(13)
A. "Certain Circumstances" Defined
In Commonwealth v. Two Juveniles,(14) "certain circumstances" was described as a two stage process.(15) First, the defendant had to demonstrate a "legitimate need" for access.(16) If there was such a "need," the second stage required the judge to conduct an in camera review, after which only information deemed materially helpful could be disclosed to the litigants.(17) Because it was difficult to define "need" affirmatively in the abstract, the court stated that it would not be sufficient for the defense to show that the requested records would be "relevant" or "material" to the defense.(18) Nor would it be enough to assert that the requested information was unavailable from another source.(19) Under Two Juveniles, the court clearly anticipated that disclosure of counseling records would be the rare exception to the rule.
In 1991, the court decided Commonwealth v. Stockhammer,(20) ruling in dictum that the second stage of Two Juveniles--the in camera review process--was unconstitutional under Article 12 of the state constitution because the judge could not review records with the "critical eye of defense counsel."(21) One year later, in Commonwealth v. Figueroa,(22) the court held that the preliminary "legitimate need" burden--Stage One of Two Juveniles--was also prohibited under Article 12.(23) Thus, defense counsel no longer was required to make any showing of need as a prerequisite to gaining access to a rape victim's counseling records.
In the aftermath of Stockhammer (even before Figueroa), access to counseling records was granted to defense counsel simply for the asking.(24) Public outcry against this practice of "ready access" fueled several good test cases which made their way to the SJC, leading in 1993 to Commonwealth v. Bishop,(25) the first of several related decisions. In Bishop, the court, acknowledging the necessity of private judicial screening, effectively overruled the Stockhammer decision and reinstated the in camera review process.(26) According to the court, this reinstatment was designed to "prevent the chilling effect which routine disclosures may have in preventing those in need from seeking that help."(27) Moreover, Bishop clearly sought to prevent "fishing expeditions" by defense counsel by prohibiting "unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness."(28)
The court in Bishop also added four new "stages" and included a sample "protective order" in the appendix of the case for courts to utilize in the prevention of needless discosure beyond the parties to the criminal case of private information deemed discoverable under Bishop.(29) These "stages" provided a clear procedural framework of analysis, but raised new questions and problems. The "stages" were set out as follows:
Stage 1: Privilege Determination
At this stage, the court must determine whether the target information is protected by a particular privilege or rule of confidentiality.(30) It is generally enough for the defender of the privacy interest at stake--usually the person or entity with primary physical custody of the material--to submit an affidavit outlining the criteria that establishes the applicability of a particular statutory, constitutional, or common law interest.
Stage 2: Relevancy Determination(31) (or Preliminary Burden)
At this stage, the defendant must show, at the threshold, that protected records are likely to contain relevant evidence.(32) Defense counsel must submit, in writing, the theory or theories under which particular records sought are likely to be relevant to an issue in the case.(33) If the judge determines, based on the defendant's proffer, that the records are likely to be relevant, the judge shall review the records in camera to determine whether the communications, or a portion thereof, are relevant.(34) If the judge decides that the records are not likely to be relevant, or that defendant only wishes to engage in a fishing expedition, the judge shall deny the request.(35)
Stage 3: In Camera Review
At Stage Three, the judge is required to determine whether any of the communications contained in the record are, in fact, relevant. If the judge does indeed identify relevant material within the records under review, they will then be turned over to defense counsel and the prosecutor.(36) "The judge shall ensure that breaches of confidentiality attending access to the relevant portions of the privileged records are limited only to those absolutely and unavoidably necessary."(37)
Stage 4: Disclosure to the Trier of Fact
Once defense counsel and the prosecutor have been granted access to the privileged records, they may be examined only for the limited purpose of determining, on motions by the parties, whether "disclosure of the relevant communications to the trier of fact is required to ensure the defendant a fair trial."(38) If this is proved, the judge shall permit the disclosure of those portions of the records which are needed to prepare and mount a defense.(39)
Stage 5: Use at Trial
At trial, the judge must determine the admissibility of the confidential information contained in the records that counsel may wish to introduce in a voir dire examination, before it can be presented to the trier of fact.(40)
While Bishop was a welcome change from the free-for-all Stockhammer days, it was little comfort to victims receiving counseling specifically related to the crime, as the preliminary burden stage--Stage Two--required the defense to demonstrate only that the records were "likely to be relevant."(41) Clearly, post-crime counseling is, by its nature, easily vulnerable to such a meager standard. The weakness of such a standard was exacerbated by the equally mild in camera review standard (relevance in fact)--Stage Three--adopted in Bishop.(42) Though beneficial to have the in camera review procedure back in place after Bishop, judges were required to disclose to the litigants any information deemed "relevant," whereas prior to Stockhammer, judges conducting in camera reviews could only disclose information deemed "material, necessary, or useful."(43)
Because the Bishop court ruled that it was setting only a minimum standard, and that a judge considering a motion to compel disclosure should take into account "the nature of the privilege," "[r]ape crisis centers fought many subpoenas after Bishop, arguing that because Stockhammer, Bishop, and Figueroa were only "qualified privilege" cases, the strict Two Juveniles standards still controlled the "absolute" rape crisis counseling privilege.(44) The centers argued further that because Bishop did not involve rape crisis counseling records and the court did not overrule or even criticize Two Juveniles, Two Juveniles was still good law. When victims of sexual violence sought crisis intervention counseling after Bishop, they were advised, in accordance with Two Juveniles, that their communications were akin to those made to clergy and would not be disclosed unless the victim consented in writing, or, in a criminal case, if the defendant could demonstrate a particular and legitimate need for access.
Not surprisingly, judges rulings were quite varied after Bishop. Some saw Two Juveniles as implicitly overruled. Others saw it as overruled for qualified privileges but good law for absolute privileges. Likewise, some judges interpreted Bishop's "likely to be relevant" standard as providing reasonable protection even against in camera review, while others saw it as a mandate in favor of automatic judicial review. It was inevitable that another case would seek to clarify the confusion.
That case came three years later in Commonwealth v. Fuller,(45) where the SJC reaffirmed the procedural framework of Bishop, but stated that Bishop's Stage Two "likely to be relevant" standard was "too broad and flexible" when applied to rape crisis counseling records.(46) In defining the new Fuller standard, the court held that because even in camera review is a "substantial invasion of privacy," when a judge is considering a defendant's request (at Stage Two) for in camera review of rape crisis counseling records, the judge must deny the request unless the defendant submits a "detailed motion" which sets forth specific facts establishing a reasonable probability that the requested records "will contain exculpatory evidence that is relevant and material to the question of guilt."(47) Perhaps most significantly, the court precisely defined materiality as that which is "likely to meet criteria of admissibility" and "tend[s] to create a reasonable doubt that does not otherwise exist."(48) As an added element of materiality, the court ruled that the information sought must "not be available elsewhere."(49) Finally, the court held that requests for such information may only be sought as a "last step" before trial.(50)
In carving out a higher standard for rape crisis counseling, the Fuller court said that its decision was based on the special nature of that privilege; that "`the very circumstances of the communications indicate that they are likely to be relevant' to an issue the case."(51) In addition, the court acknowledged that the legislature sought to protect such communications as strictly as possible by enacting an "absolute" privilege for rape crisis counseling, a rare piece of legislation that precludes disclosure in all circumstances without exception.(52)
Of particular significance was the Fuller court's rejection of the defense claim that counseling records often contain important information. Indeed, the court noted that most requests for records would be denied simply because the likelihood that such records will contain materially helpful information for the defense is "remote."(53) In light of this language alone, Fuller raised a clear and strong presumption against disclosure, even to the limited extent of in camera review.(54)
B. Extending Fuller to Other Crime Victims and Other Privacy Rights
In what will probably be both the final chapter of one book and the first chapter of an entirely new book in the evolution of this area of law in Massachusetts, almost one year to the day after Fuller was decided, the SJC decided yet another case involving the competition between victims' and defendants' rights.(55) Commonwealth v. Tripolone, like Fuller, arose from a contempt judgment against the holder of privileged counseling records who refused to turn over its file in response to a court order.(56)
In Tripolone, the issue arose in the context of domestic violence counseling.(57) The defendant was charged with violating a restraining order, armed assault in a dwelling, and rape.(58) Unlike the rape victim's counseling records in Fuller, the domestic violence victim's counseling records in Tripolone were protected by a privilege statute that was not "absolute."(59) The judge ordered production on that basis, without requiring the defense to make even a minimal showing that disclosure was necessary to provide the defendant with a fair trial.(60) The custodian of records at the domestic violence counseling center, New Hope, Inc., refused to comply with the court's order, and a contempt hearing followed. A different judge held New Hope in contempt, but stayed the sanction pending appeal because he recognized that New Hope's resistance to the production order had merit notwithstanding the less than "absolute" nature of the privilege statute at issue.(61)
On appeal, New Hope argued that domestic violence victims should be entitled to the same strict standards to protect their counseling privilege as those that were adopted to protect rape victims in Fuller, irrespective of the particular language adopted by the legislature.(62) In support of its position, New Hope argued that therapeutic counseling for all crime victims, at the hands of any type of caregiver, should be entitled to substantial deference because the effectiveness of all therapeutic counseling depends on confidentiality. Therefore, a uniform standard was good public policy. Moreover, uniformity was legally appropriate because therapeutic counseling is protected by the Federal Constitution.(63) While the court was plainly skeptical of the constitutional argument in Fuller,(64) they recognized its significance in Tripolone, making the SJC the first appellate court in the country to suggest the existence of a constitutional right for crime victims in this context.(65) Indeed, except for those states that have amended their constitutions to give crime victims certain state constitutional rights, Tripolone marks the first time an appellate court has held in a criminal case that crime victims might have federal constitutional rights of any type.(66)
The Constitutional Right to Confidentiality
In Tripolone, while the court cited no cases in suggesting for the first time in a criminal case that therapeutic counseling for victims might be protected by a "constitutional right of confidentiality,"(67) the decision followed near unanimity among those federal courts that had addressed the issue in non-criminal contexts, holding that therapeutic counseling is protected by a "constitutional right of privacy."(68)
These federal decisions cite and derive support from Whalen v. Roe,(69) where the Supreme Court held that fundamental liberty, as protected by the Fourteenth Amendment Due Process Clause, includes the "individual interest in avoiding disclosure of personal matters and the interest in independence in making certain kinds of important decisions."(70)
In addition to numerous favorable judicial decisions, Congress recognized a fundamental constitutional right of privacy more than twenty years ago in the preamble to the Federal Privacy Act.(71)
Likewise, the Massachusetts legislature has acknowledged the fundamental nature of the privacy interest in therapeutic counseling for crime victims by enacting the strictest possible privilege statutes.(72) These statutes are a manifestation of society's belief that the counselor/victim relationship is so important to the administration of justice that protecting confidentiality justifies the sacrifice even of relevant evidence.(73)
A. Crime Victims Should Be Entitled to Constitutional Value in Therapeutic Counseling If Criminal Defendants May Claim Such a Right in Court-Ordered Psychiatric Examinations
The First Circuit's decision in Borucki v. Ryan(74) deserves particular focus here, as that case involved the constitutional privacy rights of a criminal defendant in a court-ordered psychiatric evaluation.(75) In discussing the fundamental constitutional dimension of the defendant's interest, the court recognized that the right is found in the "Fourteenth Amendment's concept of personal liberty."(76) The court then wrote:
The logic of the Supreme Court cases does suggest that among the personal rights protected by the autonomy branch of the right of privacy is the right to make significant decisions regarding physical and psychological health, even when unrelated to specifically protected areas of personal life such as marriage.(77)
This is particularly true in the area of mental health. Familial matters may be among concerns discussed with mental health care providers, and interference with decisions regarding mental health care, or disclosure of communications to mental health care workers may have First Amendment ramifications.(78) Although the Borucki court noted that the constitutional right of privacy was not clearly defined in 1983 when the cause of action in that case accrued, the existence of such a constitutional right was soundly reaffirmed the following year in Daury v. Smith.(79)
Obviously, if a criminal defendant has a constitutionally protected liberty interest in a court-ordered psychiatric evaluation, the context of which ensures disclosure to third parties, victims of violence should be entitled to no less in therapeutic counseling.
B. Sound Public Policy Supports Recognition of Fundamental Constitutional Value in Therapeutic Counseling for Victims of Violence
Although the parameters of the constitutional right of privacy are not clearly formed in some contexts,(80) there should be little dispute over the need to assign constitutional status to the right of privacy in therapeutic counseling, as it is barely distinguishable from the most fundamental concept of individual liberty.(81)
Notable scholarship has described privacy as "an essential right" that "protect[s] our liberty."(82) Charles Fried explained that privacy "is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves. . . . The law must grant persons this control to show how seriously we view the right."(83)
Fried added that to be denied such control is "the ultimate assault on liberty"(84) and is "profoundly humiliating."(85) In explaining the inescapable nexus between liberty and privacy, Fried wrote that "invasions of privacy injure us in our very humanity."(86) The United States Supreme Court recently recognized the essential value of privacy in therapy by establishing an absolute privilege for therapeutic counseling communications as a matter of federal common law.(87) The Court expressly declined to create a hierarchy of confidentiality protection, whereby doctorate level mental health care providers, such as psychiatrists and psychologists, would receive absolute protection, while less educated caregivers, such as licensed social workers, would have only limited protection.(88) In placing the importance of confidentiality in the social worker/client context on par with confidentiality in other mental health caregiving relationships, the Court recognized that social workers often provide counseling services to those of lesser means, and that economic status is not a basis upon which to deny confidentiality during the therapeutic process. The Jaffee court added that the mental health of all our citizenry is of "transcendent importance"(89) and emphasized that confidentiality defines the therapeutic process.(90) A federal district court judge in Massachusetts recently emphasized this point by extending Jaffee to the volunteer rape crisis counselor/victim relationship.(91) As these cases recognize, it is difficult to conceive of information more deserving of constitutional privacy protection than communications made in therapy.(92)
Domestic violence and rape victims, in particular, deserve maximum protection against disclosure of their counseling records, as preventing violence is a profoundly important social interest and the availablitity of confidential services often determines whether the victim will even take the first step, report violence, and ask for outside help.(93) Granting constitutional protection to therapeutic counseling for victims of domestic violence affords the greatest resistance to disclosure.(94)
Given the wealth of favorable decisions, congressional recognition and strong public policy support, there was significant force behind New Hope's argument in Tripolone that the SJC should recognize a constitutional right of privacy in therapeutic counseling for domestic violence victims. In fact, prior to Tripolone, the SJC had itself already recognized the existence of a constitutional privacy right in avoiding the disclosure of personal matters.(95) Faced in the Fuller case with the application of such a right to the therapy records of rape victims, the court balked and declined to acknowledge or deny that such a right exists. Rather, the Fuller court expressed concern over the "ill-defined" nature of the doctrine.(96) Curiously, the court had no similar concern about the "ill-defined" nature of the doctrine when it decided the Planned Parenthood case two years earlier. The SJC did not otherwise explain its reluctance to acknowledge the doctrine it had recently embraced.
Whatever the motivation for the SJC's shift in thinking about victims' constitutional rights between Fuller and Tripolone, in finally acknowledging that the privacy interest in therapeutic counseling may have a constitutional dimension, the SJC has sent a message to trial court judges that there is no hierarchy of privileges whereby some caregiving relationships are entitled to greater protection against disclosure than others. Thus, Massachusetts state court judges in criminal cases should subject defense requests for all types of therapeutic counseling records to the same strict standards as those that were adopted in Fuller. This approach will certainly help to prevent piecemeal appellate litigation on behalf of each category of mental health care provider. A question remains, however, whether other types of information aside from counseling records might fall within the parameters of this suggested "constitutional right of confidentiality."(97)
In some states, victims' counseling records are absolutely protected against disclosure to a defendant in a criminal case, whether it be by statute, by case law, or by combination.(98) Other states have statutes and/or appellate court decisions that allow criminal defendants to gain access to victim's counseling records in certain circumstances.(99) This disparate treatment of therapeutic counseling for crime victims cries out for a decision from the United States Supreme Court, which has not spoken to this issue since 1987.(100) The Supreme Court should take the SJC's suggestion in Tripolone and recognize a constitutional right of confidentiality in therapeutic counseling for crime victims, thus establishing a baseline of parity among the states.(101)
A Constitutional Right to Confidentiality Requires Compliance with Procedural Due Process
Where constitutional interests are at stake, minimal compliance with due process requires notice and opportunity to be heard and nothing less.(102) However, in these circumstances involving important privacy rights, due process should require more.(103) In determining what process is due, courts should "`balance the interests of the individual affected, the risk of erroneous deprivation of those interests and the government's interest in the efficient and economic administration of its affairs.'"(104) Applied here, a proper balance of interests should require application of the procedural protections discussed in the following subsections and the substantive standards set forth in Part V. It deserves repeating here that this section assumes, of course, that the court is in a state unlike Pennsylvania which follows federal law and precludes defense access to victims' counseling records in all circumstances. Parts IV and V address the procedural and substantive parameters that should apply only in the event the law in a particular state requires that there be at least the possibility of a defendant gaining access to counseling records in certain circumstances.
A. The Material Requested Must Be in the Custody, Possession, or Control of the Prosecution
Judges should deny criminal defendants access to victims' counseling records unless such material is in the custody, possession, or control of the prosecution, because while the constitutional right to a fair trial may be well established, this right does not extend to pre-trial discovery of privileged material in the hands of a private person.(105) Viewing such discovery rights as derived from the Constitution is unprecedented and represents a departure from well-founded criminal rules and decisional law limiting pre-trial discovery to certain, specified material in the custody, possession, or control of the government or an agent thereof.(106)
Other states have expressly acknowledged as much.(107) These cases are in keeping with Pennsylvania v. Ritchie,(108) where the United States Supreme Court held that Ritchie's right to discover child protective services investigative records was grounded in the fact that the records were in the prosecutor's file.(109) Because victims' counseling records are generally not in the prosecution's file, and therapeutic counselors cannot be viewed as agents of the government, counseling records should remain separate and distinct from the criminal justice process.(110) Moreover, disclosure should be forbidden even if a victim's records are in the prosecutor's file if the government did not obtain them lawfully and for a legitimate law enforcement purpose.(111)
The fundamental nature of this issue should be emphasized. The requirement that discoverable material be in the possession, custody, and control of the government is axiomatic to the issue of disclosure, as a defendant's constitutional rights, by definition, exist to protect against government action. No constitutional authority empowers a criminal defendant to exercise his rights against a private citizen. Thus, unless the victim's counseling records are a legitimate part of the government's case, the only constitutional rights at stake in this controversy belong to the victim--as it is her individual privacy rights that are pitted against the government's subpoena or court order power, masquerading as the rights of the accused.
B. The Defendant Should Bear a Burden of Establishing that the Mere Fact that the Victim May Have Had Counseling Is, in Itself, Discoverable
In most rape and domestic violence cases, and increasingly in other types of cases as well, a defense request for the discovery of counseling records begins with a request to compel the disclosure of whether the victim has ever received counseling services, as well as the names and addresses of any person who provided such services to the victim. This extraordinary discovery request, though often allowed without debate, should routinely be denied(112) unless such discovery is expressly warranted either under rule or statute.(113) In Massachusetts, for example, discovery is controlled by Massachusetts Rules of Criminal Procedure 14(a)(1), (2).
Putting aside for the moment the individual substantive standards set forth in Rules 14(a)(1) and (2), it is essential to recognize that nothing is discoverable under either section of Rule 14 if it is not "within the possession, custody, or control of the prosecutor."(114) Clearly, as set forth in the preceding section, such information is generally not in the custody or control of the prosecutor. Moreover, nothing in either section of Rule 14 anticipates that the prosecutor can be ordered to interrogate the victim in order to obtain possession, custody, or control of such information. Indeed, arguments in favor of such a "duty to collect evidence" rule have repeatedly been rejected.(115) Recently, the Massachusetts Appeals Court rejected such an argument in a related context.(116)
Even if the prosecution or government is aware that the victim has a counseling history, disclosure of such information to the defense should be precluded unless the defendant demonstrates, at a minimum, that such information is either "relevant" and "exculpatory"(117) or "relevant" and "material"(118) to a legitimate issue in the case. If the defendant cannot meet his burden under either section of Rule 14, further motions regarding disclosure of counseling records should be summarily denied. Simply put, if the fact that a victim may have had counseling is, in itself, not discoverable under Rule 14, it is axiomatic that the records of such counseling are not discoverable.(119)
Defendants often argue that because credibility is an especially important issue in a rape case, all counseling information is relevant because counseling bears on credibility. This argument assumes, however, that all persons who seek counseling services have credibility problems as a matter of law, which is simply not true.(120)
It is troubling as a matter of public policy for a court to be able to find that the mere fact that an individual had counseling is per se relevant on the issue of credibility. If that were the case, questions regarding counseling should be posed to every crime victim, if not every witness (and to defendants under rules of reciprocal discovery), as credibility is an issue in every criminal case. Additionally, a "per se discoverable" rule means that every individual who receives counseling at any time in their life must be warned that limits on confidentiality, such as the so-called "Tarasoff" warning,(121) include the limitation that if that individual ever becomes a victim or a witness to a crime, they will be compelled to disclose their counseling history.(122) This is a daunting prospect, given that citizens are already reluctant to participate in the criminal justice system.
Prohibiting the defendant from being able to force the victim to reveal whether she has ever had counseling will also reduce the systemic burden that courts will certainly face in terms of trial delays associated with hearings pertaining to and judicial review of actual therapy records. Anecdotal evidence suggests that there was such significant delay in facilitating the Bishop procedures in Massachusetts, many defense counsel would deliberately wait until the eve of trial to file motions seeking access to counseling information. They knew that such motions would likely delay the trial for weeks, if not months, affecting memories, witness availability, and other crucial factors to trial. As the old saying goes, "a good defense, like a good wine, gets better with age."
Such delay tactics also intimidate victims, who often choose to give up their privacy rights to enable the trial to proceed as planned. This problem can easily be avoided if motion judges nip the discovery process in the bud and deny the door-opening defense request to compel disclosure of the fact that a victim has had counseling and the name of the victim's counselor. If a defendant is not entitled to force the victim to reveal whether she has ever had counseling, he cannot issue a subpoena to a counselor or otherwise engage the court in hearings related to the records themselves.
Defendants typically argue that they cannot demonstrate the significance of the fact that a victim had counseling without first knowing whether the victim has ever had counseling. This circular argument ignores a basic litigation fact--that it is the moving party's burden to show how desired confidential information relates to a specific issue in the case at hand before it may forcibly be divulged. Moreover, such an argument is actually a concession of the defendant's desire to engage in a prohibited fishing expedition based on pure speculation.(123)
The absurdity of forcing a victim to disclose the fact that she may have had counseling simply on the argument that this is a fact unknown to the defense is best illustrated by example. If a defendant filed a motion asking the judge to order the victim to disclose "whether she has ever had her hair permed, and if so, by whom, and the dates of her hair treatment," the judge would ask the defendant how such information relates to the case. If the defendant responds, "I can't determine its relevance until I know whether she has ever had her hair permed," the judge would deny his request on the grounds that he failed to demonstrate even mere relevancy, much less "materiality," or that the information is "exculpatory." Similarly, if a defendant makes a similar request for counseling information, it is fair for a judge to conclude that, as with the victim's hairdressing history, her counseling history is simply not discoverable.
C. There Must Be Advance Notice to Both the Victim and the Holder of Confidential Information, as well as an Opportunity for a Meaningful Hearing
Due process in this context should require notice to the victim as well as to the holder of the confidential material who has a legal duty to defend the privacy interest at stake. Due process should also require an opportunity for a meaningful hearing,(124) where the burden is placed firmly on the moving party to provide a detailed justification for the request, in writing, which complies with appropriate substantive standards (such as the materiality and need-based showing adopted in Fuller).(125) A meaningful hearing should include, in appropriate circumstances, an opportunity for the victim to challenge the adequacy of the requesting party's proffer via compulsory process and cross-examination, and with the assistance of counsel.(126)
These basic due process requirements serve to assure the crime victim, who has a substantial privacy interest at stake and is "subject to government power, that [s]he has not been a mere passive object of inquiry, however thorough, but an equal participant whose voice has fully been heard."(127)
D. The Defendant Should Disclose His Theory of Defense
Due process in this context should also require disclosure of the defendant's theory of defense. Needless abrogation of the victim's privilege is certain to occur in the absence of such disclosure. For example, if the defendant intends to rely on an insanity or mental impairment defense, the chance that the victim's counseling records would bear significantly on the defendant's case is less than remote. In these circumstances, access should summarily be denied. However, in the absence of disclosure of the defendant's theory of his case, access might well be granted.
It is certainly appropriate to impose this prerequisite on the defendant.(128) Indeed, even in other contexts not involving important privacy rights, defendants are made to disclose their theory of defense simply because it is fair to the government.(129) While a defendant may argue that requiring disclosure of his theory of defense is unjust, he hardly has a basis to complain when he chooses to use the power of the government (via subpoena or court order) to reach out beyond the scope of the government's case into the private space of a private citizen.
A Strict Scrutiny Analysis in this Context Should Utilize a Two-Tiered Determination of Misconduct and Need
In addition to the preceding procedural requirements, if a hearing on the issue of disclosure is required, the court should undertake a strict scrutiny analysis requiring the defense to demonstrate both victim misconduct and a compelling need for access. In the absence of a decision in Massachusetts expressly addressing this issue as a competition between the victim's constitutional right to confidentiality and the defendant's constitutional right to due process, the issue should be analogized to other situations where fundamental rights collide--such as where a defendant asserts his Sixth Amendment rights against the Fifth Amendment rights of another.(130) Using such an analogy, this section proposes a two-tiered analysis, the first tier of which would protect therapeutic counseling communications against disclosure, even to the judge for in camera inspection, in the absence of credible evidence that the victim has committed intentional misconduct in an effort to subvert the truth-finding process. The second tier would require that the defendant demonstrate, in writing, a compelling need for access to specifically identified therapeutic counseling communications.(131)
A. A Showing of Misconduct is Required in Analogous Situations where a Defendant Seeks Access to Information which is Protected from Disclosure by a Witness' Fundamental Right
The first step of this two-tiered analysis is derived from cases where the accused seeks access to exculpatory information protected by a witness' constitutional Fifth Amendment privilege against self-incrimination. Although the SJC has maintained an absolute bar to such information not withstanding the rights of the accused,(132) other courts have held that a judge may direct the government to grant use immunity to the witness or suffer a judgment of acquittal where the government's decision not to grant a letter of immunity was made "with the deliberate intention of distorting the judicial fact-finding process."(133)
A like preliminary inquiry should form the first level of a strict scrutiny analysis(134) in cases involving defense requests for victims' counseling records, whereby a defendant should be denied access to such records, even to the extent of an in camera inspection, in the absence of credible evidence that the witness whose privileged material is at stake has undertaken to intentionally distort the judicial fact-finding process.(135) This preliminary inquiry, while novel in this context, properly reflects the constitutional weight of the victim's interest(136) and recognizes the punitive nature of forcing victims to choose between healing and access to justice.(137) In other words, where a court order imposes on a fundamental interest, it is imperative that the initial access standard provide a mechanism which justifies such a harsh result.(138)
Requiring an initial showing of misconduct also recognizes the far-reaching nature of the defendant's request. Not only is a request for a witness' counseling records beyond ordinary discovery, it exceeds the parameters of information traditionally in the custody of the government(139) and seeks highly sensitive information not ordinarily disclosed to anyone for any purpose unless life is at stake.(140)
Finally, a preliminary inquiry regarding witness misconduct protects against the defense argument that there should be a "per se" discoverable rule regarding all post-crime statements about the crime made by any witness in a confidential setting.(141) To be sure, a victim or witness to a crime may relate information about the crime to many confidantes for many different purposes, including a spouse, an attorney, and a religious counselor. In the absence of a strict misconduct standard which ensures that access to such statements will be both rare and justified, the law will serve needlessly to inhibit confidential human relationships and chill the healing process.(142)
B. Where Witness Misconduct Can Credibly Be Shown, The Second Tier of a Strict Scrutiny Analysis Should Require the Defense to Submit, In Writing, the Facts, Law, and Theories upon which a Request for Counseling Communications is Based, Demonstrating a Compelling Need for Access
The second tier of a strict scrutiny analysis should require the defendant to demonstrate, in writing, a compelling need for access to therapeutic counseling communications.(143) This standard should be defined as clearly as possible, not only to facilitate the healing process as argued above, but to prevent the evolution of a practice of routine disclosure in cases where there is only a possiblity that the requested records "may" contain relevant evidence. To provide further definition, the compelling need standard should be described as requiring the moving party to demonstrate, with credible facts: (1) that specific information is related and necessary to a specific defense theory; (2) that it is available in a particular location; (3) that it bears on a significant and material issue in the case; and (4) that such information cannot be obtained from a non-privileged source.(144) Finally, the moving party should also show that the anticipated information will be admissible as evidence, assuming it is uncovered in the target source. This admissibility factor enhances the clarity of the law and protects against needless abrogation of the privilege. For example, in Tripolone, the judge ruled that the victim's 1995 counseling records should be disclosed because they may contain statements to the effect that she felt embarrassed and humiliated after the rape. However, such evidence was already available to the defense in the probable cause testimony and police reports. Hence, if such information was also in the victim's counseling records, it would be clearly cumulative, hence not admissible.
As a check against needless disclosure, then, the following question should always be asked before a subpoena or court order issues, even for an in camera inspection: "Assuming the desired information is in the target records, would it be admissible?" If the answer is no, disclosure should not be ordered.
C. A Compelling Need Standard Is Not an Impossible Burden(145)
While it is, of course, difficult to know with precision whether certain material might be found in a particular location, this criticism ignores the fact that the burden is always on the moving party to demonstrate why discovery of private information in the possession of a non-party should be allowed in any litigation. Moreover, the inability to know is just as applicable under a need-based standard as a relevancy standard. Thus, to complain that one cannot know whether counseling records will be helpful to the defense without first seeing them is to concede that one seeks only to conduct a fishing expedition.
A defense attorney is certainly the best position to determine his evidentiary needs because, unlike anyone else involved in the case, he knows his theory of defense, he has unfettered access to the defendant and to his own investigative file as well as grand jury minutes, probable cause testimony, police reports, witness statements, and virtually everything in the government's file. Furthermore, while there are certainly some false allegations of all crimes (though not to a greater degree in rape cases)(146) where it is theoretically possible for a victim to make a statement to a confidante to the effect that she has implicated an innocent person, there is no rational basis for concluding that such statements would appear exclusively in therapeutic counseling records.(147)
Important Public Policy Considerations Support Application of the Strictest Scrutiny Before Access is Granted to Therapeutic Counseling Communications
As the United States Supreme Court recently wrote, confidentiality is the cornerstone of effective therapeutic counseling.(148) Confidentiality enables victims to speak freely about their pain and suffering in a safe environment.(149) Courts have noted that fewer rape cases would be reported and prosecuted if victims were not promised strict confidentiality for their therapeutic counseling.(150) Common sense dictates that inhibiting the healing process and the deterrent value of prosecution may well lead to an increase in sexual violence, as it has been said that without pre-trial support and counseling, victims may be unable to testify.(151) Such concerns were noted by the Supreme Court of Pennsylvania in a recent decision upholding the constitutionality of an absolute privilege for rape victims.(152)
A. In the Absence of a Strict Access Standard, Post-Crime Therapeutic Caregivers Will be Forced to Advise Victims that There Is No Confidentiality
The integrity of the SJC's decisions lies in the recognized need for a strict access standard for post-crime counseling communications because, as the court stated, "the very circumstances of the communications indicate that they are likely to be relevant and material to the case."(153) As the court noted in Two Juveniles, without such a standard the privilege is worthless.(154) Under the doctrine of informed consent, without a strict standard, victims would have to be advised at the outset of counseling that their therapeutic conversations were not confidential.
The two-tiered strict scrutiny analysis proposed here is neither overly inclusive, requiring disclosure in all cases, nor underinclusive, precluding disclosure in all cases. This concern for true balance was the central focus of Bishop, where the SJC strove to develop a meaningful standard for qualified privileged material. "Our charge . . . is to describe a standard that defines the line between a less inclusive standard (disclosure is not ordered when it should be ordered) and an overly inclusive standard (disclosure is ordered when it should not be ordered)."(155)
Access to therapeutic counseling records under less than a strict scrutiny analysis would not be consonant with courts' reasoned goals as set forth in Two Juveniles and Bishop, to "prevent the chilling effect which routine disclosures may have in preventing those in need from seeking that help."(156) Rather, a lesser standard would amount to precisely the type of "overly inclusive" rule that the Bishop court criticized and sought to avoid, because "disclosure [will be] ordered when it should not be ordered."(157)
A strict scrutiny analysis also recognizes the defendant's restricted right to access privileged communications in only limited circumstances. While "in certain circumstances a defendant must have access to a victim's privileged records . . . [t]his is not to say that a defendant charged with rape or sexual abuse must have access to a victim's privileged records in all circumstances."(158) Only the strictest scrutiny will prevent "`unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness.'"(159)
B. Without the Strictest Standard, Non-Privileged Information Will Receive Greater Protection than Constitutionally Protected Therapeutic Counseling Communications
The unfair vulnerability of post-crime counseling communications in the absence of a strict scrutiny analysis cannot be over-emphasized. Unlike non-privileged material, such as the victim's grocery receipts, which will likely be protected from disclosure because the defendant will not generally sustain a threshold showing of mere relevancy, the very nature of post-crime counseling guarantees that such a minimal showing could easily be made in every case. The resulting anomaly would be unsound.
C. Strict Protection for Counseling Communications Will Further the Orderly Administration of Justice
Adoption of the strictest access standards will prevent needless systemic burden, particularly in matters of sexual and domestic violence. Some rape and domestic violence crisis counselors, like religious counselors, are not professional mental health caregivers and, as such, are not required to maintain treatment records. Moreover, unclear language in any available records would have to be explained or interpreted.(160) Accordingly, without an access standard that prohibits even in camera inspection except in the rarest of cases, judges may well be required to conduct in camera interviews of non-professional counselors in every case in order to glean enough information to determine whether any of the victim's confidential communications should be disclosed further. This interview process would have to be repeated throughout the criminal proceedings and even during trial, because crisis counseling usually continues during this entire period, if not for some time thereafter. To be sure, this process would unduly burden the system and frustrate the healing process.(161)
These private interviews would also have to be recorded and transcribed to afford the parties an opportunity to challenge the judge's questions and related rulings on appeal. This needless imposition on judicial resources, caregivers, and victims can fairly be avoided if a strict scrutiny analysis is adopted as judges will only be required to initiate such burdensome proceedings, in appropriate and limited circumstances.
Nipping Discovery in the Bud with a "Don't Ask/Don't Tell" Policy
The best way to protect against needless disclosure of counseling records and other private information is to educate prosecutors and victims to adopt a "don't ask/don't tell" policy. In this way, prosecutors will not cavalierly ask about, and victims will not reveal, such information unless disclosure is essential to the investigation of the case or is deemed constitutionally or otherwise discoverable after a proper hearing.
Even if the prosecutor or police inadvertently become aware of personal but irrelevant private information, forcible disclosure of such information to the defense should also routinely be denied under ordinary discovery standards. This assumes, of course, that prosecutors will, as they should, dedicate necessary resources to lodging appropriate objections to disclosure and appealing erroneous judicial rulings.
A "don't ask/don't tell" policy is beginning to work in those counties in Massachusetts where prosecutors have voluntarily adopted such a practice. It also works in states where victims have, and are made aware of, a statutory, common law, or state constitutional right to refuse to disclose private information.(162) It would certainly be easier to enforce such a policy with uniformity if the United States Supreme Court would recognize, as the Massachusetts Supreme Judicial Court has suggested, a constitutional right to confidentiality in therapeutic counseling.
Hopefully, the development of jurisprudence in the area of individual rights and advocacy for victims in criminal cases will empower and encourage more women to report violence and participate in the criminal justice process. Currently, only sixteen percent of rape victims report the crime to authorities,(163) a number that has not significantly changed over the last several decades, despite the growth of rape crisis centers and the evolution of rape shield laws. The two major reasons behind this reluctance to report are shame and fear of being blamed for the crime.(164) Better protection for counseling records as well as personal and zealous legal representation for rape victims in criminal cases offers new hope for meaningful change in reporting rates which, in turn, may well reduce the incidence of sexual violence. In addition, the very fact that victims are beginning to understand and exercise their rights in this context should serve as a reminder that defendants are not the only individuals with personal and constitutional rights at stake in a criminal proceeding.
VIII. Conclusion
By suggesting the existence of a constitutional right of confidentiality for therapeutic counseling, the Tripolone decision offers intriguing opportunities for victim advocates in criminal cases. Constitutional status may prevent defense access not only to private information, such as victims' prior sexual histories (so-called rape shield information), but also to victims' diaries, e-mails, medical and psychological records, employment files, and pharmacy records, as well as correspondence between, and information regarding, family and social relationships.(165) Although defendants in some states have enjoyed relatively casual access to victims' private information, "constitutional confidentiality" may well cordon off all sorts of private information heretofore considered fair game for the defense. This is likely to be especially meaningful for victims in matters of rape and domestic violence, where, because of social bias and other reasons, courts are often too eager to allow defense access to victims' private material in order to facilitate the overtly personal nature of the typical defense tactic.
As with all important rights, procedural and substantive safeguards are only as good as judges' willingness to enforce them. Thus, it will be necessary to institutionalize (and fund) legal advocacy for victims in criminal cases where their personal rights are at stake. As prosecutors do not represent victims, they cannot be expected zealously to defend victims' individual interests. Moreover, prosecutors' interests are sometimes in conflict with the needs and desires of victims. Of course, prosecutors, judges, and defense attorneys must be willing to accept, if not invite, systematic intervention by third-party "victim attorneys" in criminal cases to ensure some measure of accountability for privacy rights if we expect such rights to retain the fundamental value they deserve. This minimum measure of decency should be afforded victims' privacy rights irrespective of whether the the Supreme Court is willing to characterize such rights as constitutional. In a country that prides itself on its commitment to individual liberties, no one should be forced to choose between prosecution and privacy.
* Senior Legal Analyst, MSNBC; Of Counsel, Brody, Hardoon, Perkins & Kesten, Boston; J.D., New England School of Law; B.A., Boston College. I would like to acknowledge my husband Rick Ellis and children Grant, Taylor, Reed, and Cameron, who inspire me daily to do what little I can to make the world a better place.
1. See Suzanne O'Malley, The New Reasons Rapists are Going Free, Redbook, Aug. 1997, at 77. "It seems as if there is nothing off-limits." Id. (citing Jeanine Pirro, District Attorney of New York's Westchester County and founder of the county's Domestic Violence Bureau). Pirro notes the recent trend of defendants to request the pharmaceutical records of alleged victims. Id.; see also People v. Jovanovic, 1997 WL 910438 (N.Y. Supp. 1997) (regarding defendant's request for victim's private e-mail messages); United States v. Doyle, 1998 WL 195731 (D. Or. 1998) (regarding defendant's request for "all medical and psychological records" of victim in a stranger rape case); Commonwealth v. Dunkle, 561 A.2d 5 (Pa. Super. 1989) (psychiatric records); People v. Foggy, 521 N.E.2d 86 (Ill. 1988) (rape counseling records); People v. Williams, 477 N.W.2d 877 (Mich. 1991) (personal diary); United States v. Briggs, 48 M.J. 143 (1998) ("all" of victim's medical records). For the purposes of this article, I will be analyzing disclosure only as it relates to therapeutic counseling records. However, the same analytical structure or framework should apply with regard to other areas of protected privacy.
2. Commonwealth v. Tripolone, 681 N.E.2d 1216, 1218 (Mass. 1997).
3. See infra notes 9-66 and accompanying text.
4. See infra notes 67-101 and accompanying text.
5. See infra notes 102-29 and accompanying text.
6. See infra notes 130-47 and accompanying text.
7. See infra notes 148-61 and accompanying text.
8. See infra notes 162-64 and accompanying text.
9. See Mass. Gen. Laws ch. 233, § 20J (Supp. 1998).
10. See Commonwealth v. Two Juveniles, 491 N.E.2d 234, 236 (Mass. 1986).
14. 491 N.E.2d 234 (Mass. 1986).
20. 570 N.E.2d 992 (Mass. 1991).
22. 595 N.E.2d 779 (Mass. 1992).
24. I watched a young rape victim walk away from a case I was prosecuting as an Assistant District Attorney when I told her the judge had granted her attacker access to her therapy records. This teenage victim, who had been sexually assaulted by a male family member, had an eating disorder of which no one in her family was aware. Ashamed and embarrased, she believed that if the perpetrator got access to her records her family would find out about her eating disorder. For that reason she stopped participating in the case. In another case I handled as a prosecutor, I was ordered to turn over the pediatric records of a teenage rape victim after defense counsel offered only that "you never know" what might be in there.
A client I once represented as an attorney in private practice watched in shock as defense counsel leafed through her medical records, including a mammogram that predated the rape by three years. She did not even know that the material had been requested, let alone divulged, until she walked into court.
Still another client stopped going to counseling after being forced to turn over her records. The abrupt loss of specialized counseling in the midst of the pre-trial process was very difficult for that victim to endure, and had a significant impact on her abililty to participate in the trial. In addition, this victim's demeanor during cross-examination was negatively affected, because she knew that her attacker's attorney had read her innermost thoughts and fears, not only about the assault, but about painful, personal, unrelated matters dating back to her childhood.
25. 617 N.E.2d 990 (Mass. 1993).
27. Bishop, 617 N.E.2d at 995.
28. Id. at 997-98 (quoting People v. Gissendanner, 48 N.Y.2d 543, 549 (1979)).
29. Id. at 996. By "needless disclosure," the protective order means to prevent discloure beyond the parties to the criminal litigation as opposed to a traditional protective order, which prevents disclosure altogether.
30. See id. at 996-97. At Stage One, it is often argued that the judge cannot determine whether a particular law applies without first seeing the target records. Generally, this claim should fail as courts usually determine whether information is protected based on affidavits and representations of counsel. For obvious reasons, discovery requests for privileged attorney-client material are routinely denied without requiring the judge to review the attorney's file to determine whether the claim is legitimate. To abrogate the privilege for the purposes of determining whether the privilege applies flies in the face of reason, particularly in the context of counseling records. While some might argue that private in camera review by a judge is a minor intrusion of no consequence, this position ignores that disclosure, even to a judge, compromises the victim's interest and constitutes a governmental invasion of privacy. In addition, because there can never be a clear line between an insignificant annoyance to privacy interests and an unbearable burden, routine disclosure, even to the judge alone, cannot be characterized as harmless. See Smith, The Right of Privacy, at 43.
31. This minimum "relevancy standard" was overturned in Fuller in favor of a much stricter "materiality" standard. The old standard is described here only to give the reader a full understanding of the evolution of this area of the law in Massachusetts.
32. Bishop, 617 N.E.2d at 996.
38. Bishop, 617 N.E.2d at 996.
43. Id. (citing Two Juveniles, 491 N.E.2d at 239).
44. Although it was beneficial to rape crisis centers that they could take advantage of the court's characterization of their privilege statute as "absolute" in Two Juveniles, the manner by which privileges were stratified (a process which continues in some states) was superficial, if not irrational. To determine whether a privilege was "absolute," as opposed to merely "qualified" (hence, entitled to more deference as against the rights of the accused), the court primarily looked at whether the legislature or the common law recognized any exceptions to the privilege. Such exceptions included, for example, allowing confidentiality to be violated with impunity in order to comply with child abuse reporting laws or to prevent suicides and homicides. Generic psychotherapy privilege statutes invariably include these types of exceptions, usually as a result of professional, ethical, and malpractice concerns, while volunteer crisis counselors, by virtue of their typically non-professional status, had fewer such concerns. While the existence of exceptions to confidentiality is certainly one way to distinguish among privileges, it simply does not follow that such exceptions, by facilitating the protection of people from abuse and death, necessarily reflect a diminished respect for confidentiality in the underlying private relationship.
45. 667 N.E.2d 847 (Mass. 1996).
50. Id. Here it should be emphasized that in Fuller the court was clear that the custodian of privileged material has an affirmative legal duty to defend against the issuance of a subpoena or court order in a criminal case. See id. at 852. Likewise, the court held that no subpoena for records may issue unless accompanied by a court order, and no court order may issue until notice and a hearing have been accorded the custodian of the target records. See id. at 851 n.3. Reading these portions of Fuller together, it appears that the custodian is not obligated to assume an affirmative (and costly) burden in criminal litigation by filing a motion to quash. Rather, the custodian need only assert the privilege and insist that the defendant bear the burden of proof.
51. Fuller, 667 N.E.2d at 854 (quoting Two Juveniles, 491 N.E.2d at 239).
52. See Fuller, 667 N.E.2d at 847 (citing Mass. Gen. Laws ch. 233, § 20J (Supp. 1998)).
54. The Fuller court gave no clear guidance on the course a judge should take if a notation in a record is illegible or unclear. For example, if a record note says "question re: victimization," one could argue that such a notation indicates that the victim consented because she doubted her own status as a victim. Alternatively, one could argue that such a notation indicates a therapist's effort to remind herself to ask the victim how she was handling her victimization. Given the countless styles of therapy, it seems unlikely, if not impossible, that a judge could rule on the meaning of such a phrase without a hearing involving the writer. Yet, to call the therapist into court for such a purpose threatens to pit the therapist against the victim, severely compromise the healing process, and also burden the criminal justice system.
55. See Commonwealth v. Tripolone, 681 N.E.2d 1216 (Mass. 1997).
59. See Mass. Gen. Laws ch. 209A (1996).
60. See Tripolone, 681 N.E.2d at 1217.
62. See Appellant's Brief at 32-35, Commonwealth v. Tripolone, 681 N.E.2d 1216 (Mass. 1997) (No. 96-P-556). Although an equal protection argument seemed intuitively appropriate, it was likely that differential treatment among confidentiality statutes for crime victims would pass a rational basis test. In any case, it was clear from the legislative history that while the Massachusetts legislature had enacted a differently worded privilege statute for domestic violence victims two years after it enacted a similar statute for rape victims, it did not intend by the different language to grant domestic violence victims less confidentiality. On the contrary, the legislature simply tried to codify, and hence comply with, the constitutional limits on absolute privilege statutes as set forth by the SJC in the Two Juveniles decision--a case that was decided in between the passage of the two statutes.
63. See Appellant's Brief at 24, Commonwealth v. Tripolone, 681 N.E.2d 1216 (Mass. 1997) (No. 96-P-556).
64. See Fuller, 667 N.E.2d at 852-53. In Fuller, the court acknowledged that the United States Supreme Court in Whalen v. Roe recognized a fundamental constitutional right of privacy, but declined to rule definitively on the issue. See id. (citing Whalen v. Roe, 429 U.S. 589, 599 (1977)). The Fuller court added, skeptically, that "the precise nature and scope of the . . . right is rather ill-defined." Id. at 852 (citing Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) (discussing the privacy interest of a prisoner in information pertaining to HIV status)). Despite the Fuller court's plain refusal to answer the constitutional question, the headnotes to that decision misleadingly describe the victim's interest as a "non-constitutionally" based statutory right to confidentiality. Id. at 848-49.
65. The constitutional issue in Tripolone, however, is not without controversy. The original slip opinion, decided by the SJC on July 21, 1997 and published in the advance sheets the following week, stated that when a defendant requests information protected by § 20K, application of the Bishop-Fuller procedures "would satisfy a defendant's right to due process of law, and, as far as we can discern before us, would not impermissibly intrude on the alleged victim's constitutionally protected right of confidentiality." Commonwealth v. Tripolone, No. SJC-07406, slip op. at 4 (Mass. July 21, 1997) (emphasis added). Strangely, the SJC re-released its decision several weeks later, adding the qualifier "if any" immediately succeeding "victim's constitutionally protected right of confidentiality," which is how the opinion now reads. See Commonwealth v. Tripolone, 681 N.E.2d at 1218. Adding to the curiosity, this significant change in the decision followed a defense petition for rehearing, wherein a request was made to eliminate the "victim's constitutional rights" language. The motion reads, "The defendant requests that the court consider revising its decision so as to minimize the unintended consequences for future cases and other statutes involving what the court has up until now referred to as a 'nonconstitutionally based testimonial privilege.'" Defendant's Petition for Rehearing/Revision at 1, Commonwealth v. Tripolone, No. SJC-07406, slip op. (Mass. July 21, 1996)). The defendant noted in particluar the court's affirmative decision in Fuller "not to decide whether a complainant has a 'constitutionally protected right of confidentiality.'" Id. The court docket indicates that this petition was denied.
66. Of course, a victim could assert such a constitutional right in a criminal matter if she faced her own criminal charges (for example, if her anticipated testimony raised Fifth Amendment concerns). However, such constitutional claims can hardly be characterized as "victim's rights," given that they only evolve if the status of the "victim" changes to the extent that she may assert what are truly the rights of the accused.
67. Commonwealth v. Tripolone, 681 N.E.2d 1216, 1218 (Mass. 1997).
68. See, e.g., Daury v. Smith, 842 F.2d 9, 13 (1st Cir. 1988) (recognizing a constitutional right of privacy in avoiding disclosure of personal matters, including psychiatric records); Borucki v. Ryan, 827 F.2d 836, 839, 845 & n.14 (1st Cir. 1987) (acknowledging that the majority of federal courts recognize a constitutional right of privacy in therapeutic counseling, and describing that right as existing in the "Fourteenth Amendment's concept of personal liberty"); Caesar v. Mountanos, 542 F.2d 1064, 1067-68 (9th Cir. 1976) (noting a constitutional right of privacy in psychotherapeutic counseling communications); In re August 1993 Regular Grand Jury (Clinic Subpoena), 854 F. Supp. 1375, 1378 (S.D. Ind. 1993) (recognizing a constitutional right of privacy in psychotherapist records); National Trans. Safety Bd. v. Hollywood Mem'l Hosp., 735 F. Supp. 423, 424 (S.D. Fla. 1990) (stating that the constitutional right of privacy "extends to individual interest in avoiding disclosure of personal matters and medical or psychiatric records fall within that sphere"); Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1039 (D. Haw. 1979) (recognizing a constitutional right of privacy in mental health records of Medicaid patients); McKenna v. Fargo, 451 F. Supp. 1355, 1379-81 (D.N.J. 1978) (finding a constitutional right of privacy concerning emotional and mental conditions); Merriken v. Cressman, 364 F. Supp. 913, 915-18 (E.D. Pa. 1973) (finding a constitutional right of privacy in psychological information); Lora v. Board of Ed., 74 F.R.D. 565, 574-76 (E.D.N.Y. 1977) (recognizing a constitutional right of privacy in records containing psychological information).
Even private information not rising to the deeply personal level of therapeutic counseling has been granted constitutional protection. See, e.g., Fadjo v. Coon, 633 F.2d 1172, 1174-76 (5th Cir. 1981) (recognizing a constitutional right of privacy in personal biographical information); United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir. 1980) (finding a constitutional right of privacy in employee medical records); Doe v. Town of Plymouth, 825 F. Supp. 1102, 1107-08 (D. Mass. 1993) (finding a constitutional right of privacy in HIV status); Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (finding a constitutionally based right of privacy in a police personnel file); United States v. Dale, 155 F.R.D. 149, 152 (S.D. Miss. 1994) (recognizing a constitutional right of privacy in personal information in employee personnel file); In re Agosto, 553 F. Supp. 1298, 1301 (D. Nev. 1983) (finding a constitutional right of privacy in family communications between parent and child); Doe v. United States Civil Service Commission, 483 F. Supp. 539, 566 (S.D.N.Y. 1980) (finding a constitutional right of privacy in avoiding disclosure of personal matters); Service Mach. & Shipbuilding Corp. v. Edwards, 466 F. Supp. 1200, 1203 (W.D. La. 1979) (same).
While some courts have accorded greater protection to the privacy interest if it falls under the autonomy branch, any qualitative distinction between the branches should be inconsequential in the context of therapeutic counseling records, as the First Circuit noted that such communications fall under both branches, as well as the First Amendment. See, e.g., Borucki, 827 F.2d at 845 n.14; see also Plante v. Gonzalez, 575 F.2d 1119, 1130 (5th Cir. 1981); Westinghouse, 638 F.2d at 577.
70. Id. at 599-600; see also Nixon v. Administrator of General Services, 433 U.S. 425, 455-61 (1977) (citing Whalen and reaffirming that the constitutional right of privacy is derived from the Fourth and Fourteenth Amendments and protects "personal matters," including communications with spouse, children, attorney, clergy, and medical care providers).
The fundamental nature of the liberty interest at stake here may be compared to the privilege against self-incrimination. That doctrine, like most privileges, is designed to deny the government the power to compel individuals to disseminate information about themselves, thus "affirm[ing] the extreme value of the individual's control over information about [her]self." Nixon, 433 U.S. at 488; see also Charles Fried, Privacy, 77 Yale L.J., 475, 489 (1967-68) (stating that privileges properly reflect "society's willingness to accept constraints on the pursuit of valid, perhaps vital interests in order to recognize the right of privacy and the respect for the individual that privacy entails").
Interestingly, forced disclosure of therapeutic counseling communications may have more dire consequences for individual liberty interests than forced abrogation of the privilege against self-incrimination. The only available means by which the Fifth Amendment may be compromised is through a grant of immunity. See, e.g., Commonwealth v. Gagnon, 557 N.E.2d 728 (Mass. 1992); Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980). If immunity is allowed and the privilege against self-incrimination is forcibly annulled, there are no negative consequences for the one that holds the privilege. Hence, there is no correlative chilling effect. The same cannot be said for counseling privileges.
71. Privacy Act of 1974, Pub. L. No. 93-579 (codified at 5 U.S.C. § 552a (1994) ("[T]he right of privacy is a personal and fundamental right, protected by the Constitution of the United States.")).
72. See Mass. Gen. Laws ch. 233, §§ 20J & 20K (1996).
73. See Charles W. McCormick, McCormick on Evidence § 72 (John W. Strong ed., 1992); see also Jaffee v. Redmond, 518 U.S. 1, 2 (1996) (citing Trammel v. United States, 445 U.S. 40, 47 (1980) (stating that the social value in confidential therapeutic counseling "outweigh[s] the need for probative evidence")).
74. 827 F.2d 836 (1st Cir. 1987).
77. Id. at 845. This distinction between individual decision-making in areas of "personal health" and "personal life" can be characterized as representing sub-branches of privacy interests within the autonomy branch. Such a fine distinction is of no particular consequence here, where therapeutic counseling in the aftermath of intimate violence would certainly fall under both categories.
78. See id. at 845 n.14. Support for First Amendment protection of therapeutic counseling comes from the ability of an individual to produce ideas. The mental ability to order one's thoughts and coherently express oneself "is fundamental to our cherished right to communicate and is entitled to comparable constitutional protection." Rogers v. Okin, 478 F. Supp. 1342, 1366-67 (D. Mass. 1979).
79. 842 F.2d 9, 13 (1st Cir. 1988) (stating that the constitutional right of privacy in avoiding disclosure of personal matters, including psychiatric records, is "now well established").
80. This lack of clarity is largely due to the fact that the right of privacy is not expressly enumerated in the United States Constitution. Likewise, however, there is no enumerated constitutional right of the accused to pre-trial discovery. Indeed, the precise source of the defendant's right in this controversy has never been identified. Hence, lack of clarity around the constitutional right of privacy is no reason to characterize the victim's interest as less valuable than the rights of the accused in this clash of social goods.
81. See Laurence H. Tribe, American Constitutional Law 1302 (2d ed. 1988) (quoting Olmsted v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (stating that the right of privacy is "the right to be let alone--the most comprehensive of rights and the right most valued by civilized men")); Thornburg v. Am. College of Obstetricians & Gynecologists, 476 U.S. 747, 747 n.5 (1986) ("The concept of privacy embodies the `moral facts that a person belongs to himself and not others nor to society as a whole.'" (quoting Charles Fried, Correspondence, 6 Phil. & Pub. Aff. 288-89 (1977))).
82. Fried, supra note 70, at 483, 486.
87. See Jaffee v. Redmond, 518 U.S. 1, 9-13 (1996).
89. Id.; see also Steven Smith, Constitutional Privacy in Psychotherapy, 49 Geo. Wash. L. Rev. 1, 22 (1980) ("The concern of an individual for his mental health is unquestionably a vital and even paramount personal interest.").
90. See Jaffee, 518 U.S. at 9-13.
91. United States v. Lowe, 948 F. Supp. 97 (D. Mass. 1996).
92. See Smith, supra note 89, at 29. Smith states that:
[N]o information is more intensely personal and private than the information revealed in psychotherapy. Psychotherapy deals not only with information about a person, the disclosure of which may be embarrassing or harmful, but also with the patient's most intimate fantasies, fears and anxieties. It deals with the very essence of a person. . . . The patient is expected to talk with the therapist about feelings and matters which the patient would not consider revealing to anyone else . . . .Id.; see also Robert Meyer & Steven Smith, A Crisis in Group Therapy, 32 Am. Psychol. 638, 638-40 (1977) (finding 81.8% of respondents less inclined to be open in group therapy without assurance of confidentiality); Deborah Willage & Robert Meyer, The Effects of Varying Levels of Confidentiality on Self-Disclosure, 2 Group 88, 94-96 (1978) (recognizing patients' reluctance to discuss violent tendencies when informed of the possibility of a breach of confidence); Note, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine, 71 Yale L.J. 1226, 1262 (finding subjects more open and candid in answering personality inventories when confidentiality was assured than when they thought results might be released).
93. See Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women, 29 Fam. L.Q., 273, 295 (1995). Zorza states:
Most victims of domestic violence have been threatened with further assault or even death if they ever reveal what their abusers have done to them. Almost all battered women are terrified of these threats. . . . Without assurances of confidentiality, few battered women would contact domestic violence programs or open up to battered women's counselors.Id.; see also Jaffee, 518 U.S. at 11 (citing Upjohn v. U.S., 449 U.S. 383, 389 (1981) ("[I]f the purpose of the privilege is to be served, the participants in the confidential conversation `must be able to predict with some degree of certainty whether particular discussions will be protected.'")).
94. See Tribe, supra note 81, at 1311 (stating that constitutional protection will serve to ensure that the statute will retain consistent strength over time, because rights granted by the legislature are "creatures of the majority, theirs to give and theirs to take away"); see also Smith, supra note 89, at 56 (noting that where a privilege is based on a constitutional right of privacy, it should be "less vulnerable to Sixth Amendment challenges than a similar statutory privilege").
95. See Planned Parenthood League of Massachusetts, Inc. v. Blake, 631 N.E.2d 985, 992 n.11 (Mass. 1994) (citing Whalen and recognizing a constitutional right of privacy in "avoiding disclosure of personal matters and . . . in making certain kinds of important decisions"); Commonwealth v. Fuller, 667 N.E.2d 847, 852, 856 (Mass. 1996) (acknowledging constitutional privacy as set forth in Whalen, but declining to decide whether it applies it to victims' counseling records).
96. Fuller, 667 N.E.2d at 852.
97. The court's characterization of a victim's constitutional interest in therapeutic counseling as a "confidentiality" but not a "privacy" right appears to be an intentional separation of the confidentiality branch from the existing constitutional right of privacy. In other words, the court chose to liberate protection for private information (the confidentiality branch) from the less clear constitutional protection for private decision-making (the autonomy branch). Recent controversy over politically-charged privacy rights in American jurisprudence may have played a role in persuading the court to sever constitutional confidentiality from constitutional privacy. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (regarding abortion); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990) (regarding the right to die).
98. See, e.g., Commonwealth v. Wilson, 602 A.2d 1290 (Pa. 1992) (Pennsylvania); see also People v. Foggy, 521 N.E.2d 86 (Ill. 1988) (Illinois); State v. J.G., 619 A.2d 232 (N.J. 1993) (New Jersey).
99. U.S. Dept. of Justice, Report to Congress: The Confidentiality of Communications Between Sexual Assault or Domestic Violence Victims and Their Counselors, Findings and Model Legislation, H.R. Rep. No. 103-395, at 25-26 (1993) (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Female Victims of Violence, at 8 (Jan. 1991)).
100. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
101. Although the SJC has suggested the existence of a constitutional right of confidentiality in Tripolone, and has set a very high materiality and need-based access standard, the decision to grant defendants any access at all is based on the unique aspects of Article 12 of the Massachusetts Constitution. Other states should not automatically follow Massachusetts' lead, but should consider providing even greater protection against disclosure, including the possibility of an absolute bar as exists in some states such as Pennsylvania. Short of absolute protection, states should consider the adoption of the strictest standards, so as to minimize the likelihood of disclosure except in the rarest of circumstances.
102. See Matthews v. Eldridge, 424 U.S. 319, 332 (1976).
103. See In re Sheridan, 665 N.E.2d 978, 979-80 (Mass. 1996).
104. Commonwealth v. Barboza, 438 N.E.2d 1064, 1069 (Mass. 1982) (quoting Thompson v. Commonwealth, 438 N.E.2d 33, 37 (Mass. 1982) and citing Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)).
105. See Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987); Fuller, 667 N.E.2d at 855.
106. See Mass. R. Crim. P. 14(a)(1), (2) (1998) (relating to pre-trial discovery); Mass. R. Crim. P. 23 (1998) (discovery of witness statements); Commonwealth v. Healis, 580 N.E.2d 1047, 1049 (Mass. 1991) (stating that disclosure of identity of confidential informant was warranted at time of trial because informant actively participated in transaction under the direction of the police; court noted that defendant's right to discovery is particularly strong at trial when "the issue is the defendant's ultimate guilt or innocence"); Commonwealth v. Amral, 554 N.E.2d 1189, 1196-97 (Mass. 1990) (stating that in certain circumstances pre-trial discovery of identity of government's confidential informant is allowed); Commonwealth v. O'Brien, 536 N.E.2d 361, 363 (Mass. 1989) (authorizing discovery of DSS investigative reports because, inter alia, DSS was required to turn its investigative file over to the prosecution); Commonwealth v. Jones, 535 N.E.2d 221, 222-24 (Mass. 1989) (allowing discovery of DSS files, and citing to Pennsylvania v. Ritchie for the proposition that the DSS files may contain information helpful to the defense); Commonwealth v. Swenson, 331 N.E.2d 893, 899 (Mass. 1975) (authorizing discovery of privileged information regarding the place from which the police, as agents of the government and witnesses to the crime, observed the crime take place); Commonwealth v. Lewinski, 329 N.E.2d 738, 746-47 (Mass. 1975) (authorizing discovery of witness statements only where they have been written or recorded and adopted by the witness and "which are available to the prosecution"); Commonwealth v. Stewart, 309 N.E.2d 470, 474 (Mass. 1974) (discovery of grand jury minutes warranted because, inter alia, "`in our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts'") (quoting Dennis v. United States, 384 U.S. 855, 873 (1966)).
107. See, e.g., State ex rel. Romley v. Superior Court, 836 P.2d 445 (Ariz. App. Div. 1 1992) (stating that where victim's medical records are not made available to the prosecution or any agent of the state, "the victim may assert the right to refuse to make available for the defense a victim's medical records"); In re Maraziti, 559 A.2d 447 (N.J. Super. Ct. App. Div. 1989) (stating that a defendant's due process rights do not extend to disclosure of communications protected by the attorney-client privilege). The Maraziti court reasoned, inter alia, that the attorney-client privilege is akin to the psychologist-client privilege and both protect interests extrinsic from the truth-finding process that would be jeopardized by in camera review).
109. See id. at 57 ("[T]he government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment." (emphasis added)).
110. See In re Maraziti, 559 A.2d 447, 452 (N.J. 1989) ("[T]he psychologist-client privilege protects an interest extrinsic from the truth-finding process.").
111. This is not to suggest that, even if the records are properly in the prosecution's file, disclosure to the defense should be automatic. On the contrary, access should be granted, if at all, only where the defendant satisfies the strictest procedural and substantive standards.
112. In many cases, even where the victim has a right not to reveal whether she has had counseling (or any other private information such as rape-shield material) she will not have been advised of such rights until after the information has been shared with the police, prosecution, and/or the defense. In such cases, the matter should not necessarily be characterized as moot. In the first place, further disclosure issues may arise. For example, an issue may arise as to whether to disclose such information to an expert witness. Moreover, if a victim reveals confidential information without knowing that she had the right not to do so, courts in parallel situations have forbidden the use of such information as a prophylactic matter, in order to encourage authorities to advise citizens of their rights before those rights might be compromised. If a court subsequently determines that discovery of whether a victim has ever had counseling was erroneously granted, further motions as to the discovery of the records of such treatment should be summarily denied. Furthermore, when protected information is erroneously revealed such that the "cat is out of the bag" as to privileged material, a defendant should not be permitted to use knowledge that the victim sought or participated in counseling as a means of buttressing his offer of proof.
113. See, e.g., Commonwealth v. Jones, 615 N.E.2d 207 (Mass. 1993) (defense motion for pre-trial discovery of "all information with regard to any psychiatric care or counseling received by the alleged victim" properly denied where, inter alia, it had not even been established that the victim had received any counseling). Additionally, defendant's request to find out whether the victim had received counseling demonstrated no nexus between the victim's possible counseling history and the facts of the case. See id.
114. Mass. R. Crim. P. 14 (1998). In an unpublished opinion, Chief Justice Wilkins of the Massachusetts Supreme Judicial Court, sitting as a Single Justice, denied a defendant's petition for relief from a lower court order denying a request to compel disclosure of whether the victim had ever undergone psychiatric, psychological, or substance abuse treatment counseling. Relief was denied because the defendant failed to sustain his burden under Massachusetts Rule of Criminal Procedure 14. See Commonwealth v. Pridgen, Single Justice Dec. No. SJ 94-0643 (Mass. Dec. 30, 1994); accord Commonwealth v. Nelson, SJ 98-0296 (Marshall, J., Jun. 15, 1998); Commonwealth v. Morrison, SJ 98-0144 (Greaney, J., Apr. 8, 1998); Commonwealth v. McGrath, SJ 95-0416 (O'Connor, J., Oct. 31, 1995).
115. Commonwealth v. Sasville, 616 N.E.2d 476, 479 n.3 (Mass. 1993). Sasville cited Commonwealth v. Neal, 464 N.E.2d 1356, 1361 (Mass. 1984), for the proposition that the prosecutorial duty to disclose "does not extend `beyond the disclosure of evidence already in existence and in the prosecution's control, to the gathering of evidence potentially helpful to the defense.'" Id. It is worth noting that a defense motion to compel the prosecutor to ask questions of the victim regarding her counseling history amounts to a criminal "interrogatory" relating to highly private information. If private information is discoverable via this unusual practice, one wonders whether defendants will also be entitled to file motions to compel prosecutors to inquire of the victim, and witnesses in general, as to any information not already known to the prosecutor about which the defense would like to inquire. Query, too, whether a court order requiring the prosecutor to gather and collect such information usurps the decision-making authority constitutionally allocated to the Executive Branch. See generally Commonwealth v. Gordon, 574 N.E.2d 974, 977 (Mass. 1991).
116. See Commonwealth v. Souza, 653 N.E.2d 1127, 1133 (Mass. 1995).
117. Mass. R. Crim. P. 14(a)(1)(C) (1998).
118. Mass. R. Crim. P. 14(1)(2) (1998).
119. To the extent the defendant argues for disclosure of whether a victim has had counseling, theorizing that such treatment providers have records reflecting statements of the victim, resolution of the issue is usually addressed by rule or statute. For example, under Massachusetts Rule of Criminal Procedure 23, statements contained in counseling records are not discoverable unless the record's statements, as specifically defined in Rule 23, are either (1) a "writing made by a witness or another signed or otherwise adopted or approved by such witness"; (2) "a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral declaration made by a witness and which is recorded contemporaneously with the making of the oral declaration"; (3) "a declaration, however taken or recorded, or a transcription thereof, made by a witness to a grand jury"; or (4) "those portions of a written report which consist of the verbatim declarations of a witness in matters relating to the case on trial." Clearly, counseling records do not constitute "statements" under Rule 23. Moreover, even if counseling records contained such "statements," discovery would be prohibited unless the statements were "in the possession, custody, or control of the adverse party," and generally would be disclosed only after "the witness shall have testified on direct examination in the trial of the case." Mass. R. Crim. P. 23(b) (1998); see also Commonwealth v. Lewinski, 329 N.E.2d 738, 746-47 (Mass. 1975) (limiting discovery of witness statements to those "which are available to the prosecution"). The prosecution clearly has no affirmative duty to gather statements, even if they might be potentially useful to the defense. See Commonwealth v. Souza, 653 N.E.2d 1127, 1133 (Mass. 1995).
Furthermore, the law has long been settled that the defendant is not constitutionally entitled to discover such statements. See United States v. Augenblick, 393 U.S. 348, 356 (1969); Commonwealth v. Coleman, 322 N.E.2d 407 (Mass. 1975); Commonwealth v. Stewart, 309 N.E.2d 470 (Mass. 1974) (routine production of grand jury minutes not constitutionally required but rendered under the court's supervisory power).
120. See, e.g., Commonwealth v. Syrafos, 646 N.E.2d 429, 432-33 (Mass. 1995); Commonwealth v. Reed, 631 N.E.2d 552, 553 (Mass. 1994); Commonwealth v. Bishop, 617 N.E.2d 990 (Mass. 1993); Commonwealth v. Two Juveniles, 491 N.E.2d 234, 239 (Mass. 1986). That defense counsel often prevail even when they make clearly pretextual arguments about the need for access to counseling records is reflective of a judicial bias consistent with the rape myth--that women as a class are vindictive and cry rape for sport. In fact, the false accusation rate in rape cases is between only one to two percent. See Julie Taylor, Rape and Women's Credibility: Problems of Recantations and False Accusations Echoed in the Case of Cathleen Crowell Webb and Gary Dotson, 10 Harv. Women's L.J. 58, 87 & n.136, 96-97 & n.184 (1987); Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. Davis L. Rev. 1013, 1028-29 & n.70 (1991).
121. Tarasoff v. Board of Regents, Univ. of Cal., 551 P.2d 334 (Cal. 1976) (establishing a duty to warn foreseeable victims of mental patients due to special relationship between patient and psychotherapist).
122. Of course, in an extreme case where the mental health of a victim is a legitimate issue such that, for example, her competency to testify is unclear, disclosure of treatment providers may well be required.
123. See Commonwealth v. Ruffen, 507 N.E.2d 684, 689 n.3 (Mass. 1987) (Abrams, J., dissenting) (stating that theoretical suggestions regarding bias and motive to lie should be regarded as "speculative in the extreme").
124. Recent case law recognizes the legal duty of a third party holder of confidential information in a criminal case to defend against the issuance of subpoeanas and court orders for confidential information. See, e.g., Commonwealth v. Fuller, 667 N.E.2d 847 (Mass. 1996). Likewise, courts have recognized the right to advance notice and a hearing on the issue. See id. at 852 n.3 (Mass. 1996) (citing In the Matter of a Grand Jury Subpoena, 583 N.E.2d 241, 247 (Mass. 1992)); see also Commonwealth v. Winer, 404 N.E.2d 654, 655 (Mass. 1980).
125. See In re Andrews, 334 N.E.2d 15, 26-27 (Mass. 1974). Although in most cases even an in camera inspection will not likely be warranted, it is worth stating that a fact-specific defense proffer explaining the basis for believing that particular information is located in the records, and demonstrating a nexus between a particular defense theory and desired information, is essential. It enables the judge to conduct an intelligent and focused in camera inspection with an eye toward matters properly claimed by the defendant. Determining whether the defendant has satisfied a materiality and need-based standard with the assistance of a case-specific proffer is a far clearer task than speculating as to the potential value of ambiguous information. See Commonwealth v. McCreary, 428 N.E.2d 82, 84 (Mass. 1981) (stating that the judge properly declined to avoid marital disqualification where defendant did not articulate specific grounds in support of his position).
126. See In re Peterson, 236 N.E.2d 82, 84 (Mass. 1968). This hearing would occur at Stage Two of the Bishop framework and would not affect the integrity of that decision. See Fuller, 667 N.E.2d at 855 n.9 (applying a materiality standard to requests for rape crisis counseling records at Stage Two of Bishop's framework).
127. In re Hill, 661 N.E.2d 1285, 1289 (Mass. 1996). It should be noted that without the benefit of advance notice and an adversarial hearing on the adequacy of the defendant's proffer, a judge will be forced to conduct an in camera inspection based solely on advocacy from the party seeking access. Far from maintaining judicial neutrality, this practice turns the judge into an advocate for the defense.
Moreover, because a contempt adjudication upon a refusal by a victim or a holder of confidential information is appealable only if the objections to the order are not frivolous, an adversarial proceeding as to the adequacy of the defendant's proffer is essential to a development of the basic facts necessary to justify an appeal as non-frivolous. See In re Grand Jury Proceedings, 583 N.E.2d at 247. To be sure, fewer appeals will be pursued if advocates for both sides can analyze the facts and make appropriate legal decisions at the trial court level which are "likely to be fully satisfactory . . . in the usual case." Id. at 247 (citing In re Oberkoetter, 612 F.2d 15, 17 (1st Cir. 1980)).
128. See Commonwealth v. Pare, 648 N.E.2d 1277, 1278 (Mass. 1995).
129. See, e.g., Commonwealth v. Edgerly, 361 N.E.2d 1289 (Mass. 1977) (addressing alibi); Blaisdell v. Commonwealth, 364 N.E.2d 191 (Mass. 1977) (addressing insanity).
130. Even if a court declines to characterize a victim's right in this context as "constitutional," a balancing of interests is appropriate. See, e.g., Commonwealth v. Fuller, 667 N.E.2d 847, 854-55 (Mass. 1996).
131. This two-stage analysis assumes either that the information is within the possession, custody, or control of the government, or that discovery of third-party information expressly is authorized by statute or rule.
132. See Commonwealth v. Gagnon, 557 N.E.2d 728, 737 (Mass. 1990).
133. See, e.g., Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980).
134. This preliminary inquiry would occur prior to Stage One of the five-stage Bishop framework (privilege determination) as a gatekeeper provision. That is, the question of misconduct would have to be resolved before the court would be required to engage in any of the cumbersome Bishop procedures for constitutionally protected material of a witness in a criminal proceeding.
135. While some would argue that the constitutional right against self-incrimination is more valuable, and thus more resilient, to a Sixth Amendment challenge than the constitutional right of privacy, there is a danger in distinguishing between fundamental liberty interests, entitling some to greater protection than others. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (placing limits on judicial intervention which result in enhanced protection for certain substantive liberty interests produces danger of having the law reflect "predilections of those who happen to be Members of this Court").
In any event, others would argue that the right of privacy in therapeutic counseling is more essential to the concept of ordered liberty than the privilege against self-incrimination. See Smith, The Right of Privacy, supra note 89, at 22 ("[B]y disrupting and hindering thought, decision-making, cognition and mentation, psychological disabilities may interfere significantly with marriage, child-rearing and family life. In addition to emotional suffering, mental illness may also interfere with the exercise of many other human rights, including freedom of religion, speech and the press. In fact, some level of mental health is a sine qua non for the exercise of many of the basic freedoms and civil rights."); see also Rogers v. Okin, 478 F. Supp. 1342, 1366-67 (D. Mass. 1979) (acknowledging that the mental ability to order one's thoughts and coherently express oneself "is fundamental to our cherished right to communicate and is entitled to comparable constitutional protection").
As further support for the position that the right of privacy may be more valuable than the Fifth Amendment, it should be noted that in circumstances where the Fifth Amendment privilege is forcibly compromised by the court, the loss suffered is likely to be no greater than the inability of the executive to prosecute the one individual who claimed the privilege. In contrast, when the law allows routine abrogation of counseling privileges there is a considerable chilling effect for which something like the exclusionary rule offers no similar incentive against cavalier intrusions. "[R]evelation of privileged information adversely affects the purposes underlying the need for the confidential relationship and serves as a disincentive to the maintenance of such relationships." Bishop, 617 U.S. at 994. "If it becomes known that confidences are violated other people may be reluctant to use [confidential services] and may be unable to use them to the maximum benefit." Id. In turn, there is the added risk that the executive will be unable to proceed with many prosecutions because victims may be unwilling or unable to testify.
136. See Smith, supra note 89, at 60. In considering questions of disclosure of therapy communications, "legislatures and courts should provide an exception only for the most extraordinary reasons." Id.
137. This potential for harm to victims is not theoretical. During a recent four-week period, the Executive Director of the statewide Coalition Against Sexual Assault monitored the reactions of victims to the possibility of court-ordered disclosure of counseling records. Results revealed that ten victims who were involved in various stages of the criminal justice process declined to continue to participate because of the possibility that their counseling records would be disclosed to the court; three victims involved in the criminal justice process declined to continue to participate because of the possibility that their counseling records would be disclosed to the court; three victims involved in the criminal justice process declined to continue receiving counseling services for the same reason; and eight victims indicated that they were being cautious about what they were saying in their counseling sessions out of fear of possible disclosure of their counseling records to the court. Similarly, a rape victim in Boston recently declined to continue to participate in a criminal prosecution because of protracted defense requests and court orders for personal counseling and other health records.
138. See Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (finding it unconstitutional to force a grandmother to choose between living with certain grandchildren and punishment for violating a zoning ordinance prohibiting her from doing so); Nat'l Treasury Employees Union v. U.S. Dept. of Treasury, 838 F. Supp. 631, 636 (D.D.C. 1993) (forced disclosure of personal information is a prima facie violation of the constitutional right of privacy); United States v. Dale, 155 F.R.D. 149, 152 (S.D. Miss. 1994) (privacy of one's personal affairs in employee personnel file is protected by the constitution and "must not be minimized, even in a case where a criminal defendant is seeking the material").
139. Of course, where the mental health of the victim is a legitimate issue such that her competency to testify is unclear, disclosure of treatment records may well be required in the absence of misconduct. This will not likely arise in the form of a defense motion for access to third party information, however, because in such cases the prosecutor will already have gathered such information and will make it available to the defense under ordinary discovery rules.
140. See Tarasoff v. Board of Regents, Univ. of Cal., 551 P.2d 334 (Cal. 1976).
141. Some might argue that the solution to the problem is to instruct victims' therapists to keep no notes. However, such a practice not only compromises the healing process, but negatively affects the quality of care. Moreover, that therapeutic communications are not be reduced to writing may be of no consequence as the defendant's right to compulsory disclosure of such information, if authorized, will likely include access to oral statements. See Commonwealth v. Zezima, 310 N.E.2d 590, 592 (Mass. 1974).
The systemic burden is likely to be especially significant with regard to crime victim and religious counselors who, as non-professionals, are not required to maintain treatment records for insurance purposes. Accordingly, motion judges may well be required to conduct an in camera interview of the individual caregiver in every case to determine whether any of the victim's confidential communications should be disclosed. This procedure will have to be repeated throughout the trial, where pre-trial counseling is ongoing. These private interviews will have to be recorded and transcribed to preserve a record for appeal. This hardship can be avoided if judges were required to initiate such proceedings only in appropriate and limited circumstances.
142. Though unintended, the law will have a much harsher impact on females than males, given that females are more likely to be victims of sexual and domestic violence and are more likely to seek specialized post-crime therapeutic counseling services.
143. Caesar v. Mountanos, 542 F.2d 1064, 1069 (9th Cir. 1976); In re August 1993 Regular Grand Jury (Clinic Subpoena), 854 F. Supp. 1375, 1378 (S.D. Ind. 1993) (stating that competing interest must be "great"); see also National Transp. Safety Bd. v. Hollywood Mem. Hosp., 735 F. Supp. 423, 424 (S.D. Fla. 1990); Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1038 (D. Hawaii 1979); In re Agosto, 553 F. Supp. 1298, 1318 (D. Nev. 1983). See also Smith, supra note 89, at 28 (the right of privacy protects information that people "generally regard as highly confidential and that . . . are released to others only for the most compelling reasons").
144. See Smith, supra note 89, at 60 (even in cases where disclosure is warranted for extraordinary reasons, courts should "strongly limit disclosure only to information that is not available from another source"); see also Commonwealth v. Blaikie, 378 N.E.2d 1361, 1366 (Mass. 1978) (stating that a "necessary" witness is one whose testimony is relevant, material, and not cumulative); Robert Weisberg, Note, Defendant v. Witness: Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges, 30 Stan. L. Rev. 935, 961 n.105 (1978) ("`Need' is distinct from relevancy. Impeachment evidence may be relevant in the sense that it is probative of the witness' lack of credibility, but the defendant may not `need' the evidence unless it is logically probative with respect to the particular testimony offered on direct examination, and unless the defendant cannot impeach the witness' credibility by some other means.").
145. See, e.g., Commonwealth v. Rathburn, 532 N.E.2d 691, 695 (Mass. 1988).
147. Commonwealth v. Swenson, 331 N.E.2d 898, 898-99 (Mass. 1975) and Commonwealth v. Ennis, 301 N.E.2d 589, 590-91 (Mass. 1973) (informant identity); Commonwealth v. Lugo, 548 N.E.2d 1263, 1266-67 (Mass. 1990) (surveillance location); Commonwealth v. Amral, 554 N.E.2d 1189, 1196-97 (Mass. 1990) (in camera hearing with search warrant affiant); Franks v. Delaware, 438 U.S. 154, 171 (1978) (credibility of affiant's statements); Commonwealth v. Sugrue, 607 N.E.2d 1045 (Mass. 1993) (marital communication disqualification); Commonwealth v. Degrenier, 662 N.E.2d 1039, 1041-42 (Mass. 1996) (whether a judge is required to compel the appearance of a witness).
148. See Jaffee v. Redmond, 518 U.S. 1, 9-13 (1996).
149. See Maxine Neuhauser, Note, The Privilege of Confidentiality and Rape Crisis Counselors, 8 Women's Rts. L. Rep. 185, 186-87, 194-96 (Summer 1985); Bridget McCafferty, Existing Confidentiality Privileges Applied to Rape Victims, 5 J. of Law and Health 101, 104-06 (1990-91). A recent national study found that despite misconceptions to the contrary, because "the stigma of rape [is] still a very real concern in victims' eyes," rape victims want and need meaningful confidentiality. Victims are "extremely concerned about people finding out and finding reasons to blame them for the rape." National Victim Center and Crime Victims Research and Treatment Center, Rape in America, A Report to the Nation 4, 10 (April 23, 1992); see also Commonwealth v. Collett, 439 N.E.2d 1223 (Mass. 1982) (recognizing the harmful effects on victims when disclosure of confidential material is ordered).
Once it becomes known that confidentialities are violated, other people may be reluctant to use [confidential] services and may be unable to use them to maximum benefit. The purpose of enacting a . . . privilege is to prevent the chilling effect which routine disclosure may have in preventing those in need from seeking that help.Id.; accord Bishop, 617 N.E.2d at 994 ("[V]ictims of rape or sexual abuse would likely shy away from forthright therapeutic sessions with their counselors if their own words were later lent to the perpetrator in aid of his or her defense."); see also Caesar v. Mountanos, 542 F.2d 1064, 1067 (9th Cir. 1976) ("Psychotherapy is, perhaps, more dependent on absolute confidentiality than other medical disciplines."); Smith, supra note 89, at 25-29 & nn.164-78.
Confidentiality is more vital to effective psychotherapy than it is to medical treatment generally. The relative importance of confidentiality to psychotherapy treatment compared with other medical treatment accounts for the general acceptance by commentators of the need for a psychotherapist-patient privilege and the general criticism of the physician-patient privilege.Id.; see also Tarasoff, 551 P.2d at 359 (Clark, J., disenting) ("The essence of much psychotherapy is the contribution of trust in the external world and ultimately in the self, modeled upon the trusting relationship established during therapy. Patients will be helped only if they can form a trusting relationship with the psychiatrist. All authorities appear to agree that if the trust relationship cannot be developed because of collusive communications between the psychiatrist and others, treatment will be frustrated." (citing Donald J. Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704 (1966))).
150. Commonwealth v. Widrick, 467 N.E.2d 1353, 1358 (Mass. 1984); Commonwealth v. Joyce, 415 N.E.2d 181, 186 (Mass. 1981); Commonwealth v. Licata, 591 N.E.2d 672, 674 (Mass. 1992) (shielding victims from undue harassment and humiliation encourages the reporting of sexual violence).
151. Carol Rohmer, Judicial Attitudes Toward Rape Victims, 57 Judicature 303, 303-07 (1973); Rochel Grossman & Joan Sutherland, Surviving Sexual Assault 17-22 (1983).
152. Commonwealth v. Wilson, 602 A.2d 1290, 1295 n.6 (Pa. 1992).
153. Commonwealth v. Two Juveniles, 491 N.E.2d 234, 238 (Mass. 1986).
155. Commonwealth v. Bishop, 617 N.E.2d 990, 995 (Mass. 1993).
158. Id. (emphasis in original).
159. Id. at 997-98 (quoting People v. Gissendanner, 399 N.E.2d 924, 928 (Mass. 1979)).
160. See supra notes 54, 141 and accompanying text.
161. Smith, supra note 89, at 26. ("Even if a patient enters and attempts to be open in therapy, the absence of a privilege may still interfere with effective therapy by reducing the trust between the patient and the therapist. Patients who do not view their therapist as one in whom their confidences are safe are likely to repress some feelings and emotions that might be important to the treatment.").
162. See In re Maraziti, 559 A.2d 447 (N.J. 1989) (New Jersey).
163. See National Victim Center and Crime Victims Research and Treatment Center, Rape in America: A Report to the Nation 4, 6 (April 23, 1992).