Psychologist/patient privilege not absolute when the psychologist convinces the patient to go to police

The Supreme Judicial Court ruled today a psychologist who convinced a woman to go to authorities when she told a him a man raped her when she was a child visiting his house can be compelled to hand over notes related to the allegation.

In its ruling, the state's highest court said that while defendants cannot go on "fishing expeditions" with the records of accusers who seek professional help, in this case, Bernard LaBroad was seeking documents related specifically to the charge brought against him. The court noted the psychologist had detailed the statements the woman made in an interview with police.

It is both essential and difficult to maintain balance between a defendant's right to present a defense and the protection of a complainant's statutory privilege against disclosure. Here, the defendant has focused his request for records on those relative to the complainant's specific disclosure (see note 3, supra ). Because the complainant's explanation of how and when the alleged sexual assault occurred was relevant and had evidentiary value, either as impeachment material or as substantive evidence, and because the defense was based on the complainant's allegedly conflicting and inconsistent statements regarding the assault, a summons for the production of the psychologist's records related to the complainant's report of sexual assault should have issued.

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    Why Rape is Underreported

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    The SJC had a chance to say, "No, we are going to give sexual assault victims at least as many rights as the people who victimize them" and rule that privilege is privilege, whether it's between a victim and a therapist or a rapist and an attorney. Instead, they gave criminals and defense attorneys yet another tool to pressure victims not to report sexual assault or, if they do, to back out of testifying for fear that anything they ever said in confidence would be dragged out and used against them. With rape culture being what it is, you'd think the SJC would be trying to make it easier to take a sex offender off the street, but no. Even as a liberal feminist, I'm starting to understand why people read the Herald and listen to talk radio: In a judicial toss-up between a criminal and a victim, the criminal wins every time.

    Definitely tough

    By on

    As the quote mentioned it's tough to balance. But the victim's inconsistent statements made her therapy records relevant and they only asked for those relating to the rape.

    I deeply sympathize with victims but our justice system is predicated on the idea that it is better to let a guilty person go free than lockup an innocent one. Although people seem to think there are more false accusations of rape than are statistically true, that doesn't mean they don't exist at all. I understand that the victims have life-long consequences that may have no remedy, but there are life long consequences to convicting an innocent person as well.

    Rather than removing rights and legal remedies of the accused, won't it be more useful to society to make it easier for victims to report? Change the culture so the victim doesn't feel ashamed to be a victim of a particular set of crimes? Think about the murders that get discussed here; one of the first things that comes out was whether the victim somehow deserved it. How about we work toward no one deserves to be a victim of anything. Reporting crimes should be encouraged and should result in action. Again, we hear plenty of anecdotes about the police shrugging their shoulders about certain types of crime as not likely to be solved or addressed. But then when they DO resolve a lesser crime, we wonder why they weren't "doing something more important--there's unsolved murders, you know!".

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    But the victim's inconsistent

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    But the victim's inconsistent statements made her therapy records relevant and they only asked for those relating to the rape.

    That's the contention I don't understand. When the victim was speaking with her therapist, she wasn't under oath. It is plenty common for patients to work their way around to disclosing trauma about which they feel irrational shame by revealing it piece-meal, or working up to it by first disclosing a watered-down version. For that matter, trauma can be disorganizing, so that it takes the patient some work to put things into the right order and time ("It was around 9pm. Wait, no, Suzie went home at ten, and I remember it was her saying good bye that...") So what may show up in the therapist's record may be internally inconsistent, be incoherent, and generally look pretty damned prejudicial. Further, the therapist's note is, to my limited understanding, pretty much the legal definition of hearsay: the therapist reporting their understanding of what the patient said, often about someone else. I mean, as someone who writes therapy notes, I'm under no illusions that my comprehension and apperception are faultless and my written record a perfect snapshot of the objective truth.

    The whole thing smacks of an attempt to coerce a kind of prejudicial retroactive testimony out of the victim: of finding something she said which hadn't been testimony -- or worse, someone else's record of what she said that wasn't testimony -- and retroactively declaring it to be held to the standard of truthfulness, coherence, and accuracy expected of a witness on the stand. That is a supremely grotesque gotcha, and not something I'm under the impression is tolerated in criminal cases aside from rape.

    The whole idea of the defense being entitled to a witness' therapy notes... I had a patient who was mugged at gun-point, and presented to me for treatment of her trauma. Can you imagine the mugger being entitled to subpoena my records because after the crime the patient sought mental health care, and his defense team felt that the discussion of the crime in my office might provide a defense? No, of course you can't, because that's absurd -- an absurdity to which we only submit the victims of rape.

    I am a therapist in Boston

    By on

    I am a therapist in Boston who advises my patients that their records could be subpoenaed in certain situations, and, boy. are a lot of them surprised to hear it, even those with plenty of experience with other therapists. So, no, it's not pretty well known. Not nearly as well as it should be.

    Therapist/patient privilege is nowhere near as robust as lawyer/client privilege, which is a damned shame.

    I tell my patients that if they don't want my records on them subpoenaed, their best bet is to keep other people from knowing that they see a therapist or who it is.