This article appeared in the Standard-Times of New Bedford, Massachusetts, on 12/13/99
Page A1, News; Copyright 1999 by Beth David

Victims of the law
By Beth David Standard-Times correspondent

Defense attorneys, police and prosecutors routinely compromise women's rights in sexual assault and domestic violence cases, women's advocates say.
At issue is a woman's right to keep her medical and mental health records out of the hands of defendants and their lawyers.

"Any victim has the right to privacy," said Geralyn Garvey, executive director of the Greater New Bedford Women's Center. "No one can get to your confidential records."

Except, advocates say, that is exactly what is happening to some women. Although strict legal guidelines are in place to protect records, attorneys often request -- and receive -- them without meeting even the most basic legal requirements, such as the patient's authorization.

"We get requests in writing with no authorization enclosed. It happens many times," said Kathleen Benjamin, director of Health Information Services at Southcoast Hospitals.

Southcoast protects its patients' records, checking signatures against those in patients' charts. If signatures do not match, the hospital will not honor the request, she said.

Ms. Garvey said, at the Women's Center, "We get three or four requests a week." She added the center often goes to court to protect counseling records.

But not all agencies are as conscientious about patient health records and defense attorneys use this to their clients' advantage.

Defense attorneys say they often need the records to defend their clients who face serious charges and lengthy sentences.

"First, you have to recognize that neither the Massachusetts Constitution, nor the United States Constitution contains any kind of Constitutional right to privacy. It doesn't exist. It's not yet been recognized," said John Holgerson, a New Bedford public defender who argued for the release of records in the last case on the subject heard by the state Supreme Judicial Court.

Since 1993, the SJC has decided three cases specifically dealing with the release of personal medical and mental health records of witnesses during criminal proceedings.

In its last case on the issue -- Commonwealth vs. Tripolone in 1997 -- the SJC took the standard, which had been afforded only to rape crisis centers in a previous case, and applied it to a domestic violence agency, and, by extension, other agencies with similar constituencies.

The court said that defense attorneys not only have to prove the records contain evidence that could clear a defendant of the charges, but also that the information can't be found anywhere else. Both sides agree that it is a very high standard.

For defendants to get confidential records, they must first appear at a privilege determination hearing where a judge decides if the records are protected. Defendants must go through four more detailed steps before getting permission to use the information at trial.

"The latest court decision reflects compromise," said Ann Lambert, Legislative Counsel for the American Civil Liberties Union in Massachusetts. "These are rights in conflict. It's not all black and white."

On the one hand, the U.S. Constitution gives defendants the right to a zealous defense, including a "full and fair cross examination of his or her accuser," said Ms. Lambert.
On the other hand, advocates say, the system punishes witnesses for coming forward.

"There are only four amendments in the Bill of Rights that support and specifically apply to defendants. The rest apply to all of us," said Elizabeth Clague, an attorney with Victim Advocates and Research Group, a Boston-based agency that represents victims and agencies trying to protect records.

Even with the Tripolone ruling on their side, advocates say women are still at risk because they don't understand that they don't have to answer personal questions or authorize release of confidential information to the police.

That's why advocates have introduced a bill dubbed the "Victim Miranda Bill." It would require police to inform witnesses of their right to keep confidential records private, to refuse to answer certain questions, and to have an attorney.

"Victims should be educated that police should only ask questions relevant to the crime, not personal history, not psychiatric history," said state Rep. Kay Khan, D-Newton, who introduced the bill in the House, where it has not yet been assigned to a committee.

While the bill is applauded by women's rights advocates, law enforcement professionals say it is insulting to assume that they ask inappropriate questions in the first place.

"Generally speaking, police officers tend to ask only those questions that are related to the matter in the extremely short term," said New Bedford Police Chief Arthur J. Kelly III. "I was taken aback at what they allege occurs as a normal course of business. I disagree with the original assumption that this is the case and that we need to protect everybody from this."

Wendy Murphy, an attorney for VARG who helped draft the bill, disagrees.
Ms. Murphy argued on behalf of the Domestic Violence Clinic in the Tripolone case. She believes that through the years things have not changed much for sexual assault victims.

She gives an example of three questions from a police report in a recent rape case. The first two questions: "Were his pants down?" and "Were the lights off?" are logical, information gathering questions related to the crime.
The third: "Do you have a psychiatric condition?" is inappropriate and should never have been asked, according to Ms. Murphy.

As soon as a victim says "yes" to that question, it gets into the police record and the defense can use it against her, she said.

"The reason the problem persists is that nobody required that victims be notified that they have a right not to reveal private information," she said. "The least we can give victims is knowledge. Maybe a judge will order it (released). But let it be before a judge where a balance of interests are taken into consideration."

Conflicting agendas

"The fact that a person has received counseling at a place is not privileged," said Mr. Holgerson. "It's the communications that exist between a patient and counselor that are protected."

He refers to a current case involving the Boston Area Rape Crisis Center in which the Appeals Court ordered the center to turn over its phone logs. The woman told police that she wasn't sure that what had happened to her was rape until after she spoke with the center.

"Confidential records have to do with their personal healing and their personal healing has nothing to do with the crime," said Ms. Garvey.
She believes that defense attorneys only want the records to intimidate and discredit women.

But Mr. Holgerson insists that if a woman is telling the truth, there's nothing to worry about.
"If she's a liar, there is no healing process," he said. "There's nothing to be healed, only lies to be concealed."

Ms. Murphy, however, worries that if victims feel their privacy will be violated, they won't come forward to report crimes.
"Some victims, if forced to pick (between privacy and prosecution), will pick privacy," said Ms. Murphy. "We don't force robbery victims to make that choice. No one else has to make that choice. It's victory by intimidation."

She believes resistance to the Victim Miranda Bill is part of a gender-biased strategy to keep women from testifying.
Not so, say law enforcement professionals.
"I think the best thing is on a case-by-case basis, with a judge making the decision about what's relevant and what's probative," said Bristol County District Attorney Paul Walsh Jr.

He said prosecutors need the freedom to ask questions to find weaknesses in a case.

"I disagree with the whole premise (of Victim Miranda). I don't think my people are asking inappropriate questions," he said. "We say 'you're going to be asked this by the defense attorney.' We want to be ready. But we also want to know the truth. Once we find the truth we go from there."

"In order for me to charge rape, I have to believe it actually happened," Mr. Walsh said.

That's the kind of statement that advocates say points to gender bias in the system.

Ms. Murphy tells the story of a woman who was drunk when she was raped by one of two men. Both men took her home and the second man raped her while the first man robbed her house.

"Police immediately entered robbery charges, but didn't bring rape charges," she says angrily. "How can you consent to rape by two robbers?"

A matter of perception

"My goal with Victim Miranda is to force the system to judge women's credibility like any other witness: based on their testimony of the crime and the crime only," said Ms. Murphy. "Rape shield laws were helpful, but all they did was create evidentiary exclusion."

That means that the information was excluded as evidence, but it did not stop the defense from getting the information in the first place.

The Victim Miranda debate has created some strange bedfellows.

The ACLU is aligned with the police, prosecutors and defense attorneys in their opposition to Victim Miranda.

"What we object to are flat rules protecting one person's rights that make serious incursions on someone else's," said the ACLU's Ms. Lambert.

"With the judge as the gatekeeper, nothing will fall into defense hands that's not relevant," she said. "It's not as if people are willy nilly getting this stuff."

"The goal is to create a more solid presumptive barrier so at the very least no accidental information gets out," said Ms. Murphy.

She insists that in other crimes witnesses are presumed to be telling the truth and no one asks personal questions during the initial investigation.

"False accusations of rape are no more common than any other crime," said Ms. Murphy. "We're still so full of bias when it comes to women's credibility."

"As long as a certain percentage of allegations are false, you can't say it's all privileged," said Mr. Holgerson. "The problem with the other side is the presumption that people making complaints are always telling the truth. (Agencies) want to support laws and ignore the fact that some people are lying to them."

"When (you) make an accusation against another, (you) need to be prepared that your credibility will be challenged," he said.

Arguments about which records are protected and how closely will no doubt continue to be debated and relitigated say activists on both sides.

They do agree that some records are more protected than others and the only way to know for sure is to have a judge decide.

"(Judges) do not like to allow motions to review these records," said Mr. Holgerson. "The SJC has muddied the waters (with Tripolone). And it needs clarification."

For now, Massachusetts law provides a lot of protection for victims who seek counseling at most agencies.

"When women call a rape crisis center, they need to be reassured that the call is in strict confidence," said Ms. Garvey. "Which means if someone says 'I know Suzie Smith called you, I know she was raped,' we won't answer. It doesn't matter who it is. It could be the attorney general."

"There's never going to be an instance where those records will never ever be available," said Mr. Holgerson. "If that happens, then you're denying defense counsel the ability to collect all information on behalf of his client."

Until now, only the Priest Penitent Statute has afforded 100 percent protection to certain conversations.

"So not only should your friend become a rape crisis counselor, but the center should become a religion," said Ms. Murphy wryly. "It's the only way to truly protect records."

"That doesn't mean that in the right set of circumstances it can't be overcome," said Mr. Holgerson.