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Rape, the Law, and Privacy

Discussion in 'Issues Around the World' started by ethics, Jan 1, 2003.

  1. ethics

    ethics Pomp-Dumpster Staff Member

    In Salem, MA, the Women's Resource Center has refused to release the counseling records of an alleged rape victim despite a Judge's order to release them.

    The alleged victim is a sixteen year old girl. The accused is Manuel Valverde, and investigators for his defense team interviewed the victim's grandmother and learned of the counselling at the rape crisis center. The judge in the case, Superior Judge Peter Agnes, ordered the Women's Resource Center to <a href="http://www.boston.com/dailynews/364/region/Rape_crisis_center_refuses_ord:.shtml">turn over the records.</a>

    The attorney for the Center claims that the records are private and should remain private. Last week, the Supreme Judicial Court ruled that victims cannot assume their records are private and must actively assert their right to keep their medical and psychiatric reports secret.

    The SJC majority found that a New Bedford judge had erred by refusing to give the defense the medical records of two girls who were allegedly sexually abused by their mother's boyfriend since neither the mother or the girls had asked to keep the records private.

    Why would a woman seek counselling after a rape, IF her records were not kept private? And what is the rationale for the SJC's ruling that the victim must request the records be kept private? How is Justice being served here?
     
  2. BigDeputyDog

    BigDeputyDog Straight Shootin Admin Staff Member

    This just makes me sick!!
    By this ruling, it appears that Justice is not only blind but stupid too... In an attempt to bend over backwards to insure that the defendant gets every possible break to allow them to walk away free, the victim will apparently be victimized twice... Once by the rapist and once by the court... :rolleyes:

    I anxiously await Martin's thoughts on this...

    BDD...
     
  3. mikepd

    mikepd Veteran Member

    This has happened in other cases:

    'Clay County, Iowa, Judge Frank Nelson's order that Planned Parenthood of Greater Iowa must turn over pregnancy test records for a murder investigation could have chilling consequences for women's ability to make reproductive decisions and for confidential clergy counseling.'

    HIPPA rules also makes the following statement regarding privacy versus public responsibility:

    BALANCING PUBLIC RESPONSIBILITY WITH PRIVACY PROTECTIONS
    After balancing privacy and other social values, HHS is establishing rules that would permit certain existing disclosures of health information without individual authorization for the following national priority activities and for activities that allow the health care system to operate more smoothly. All of these disclosures have been permitted under existing laws and regulations. Within certain guidelines found in the regulation, covered entities may disclose information for:

    Oversight of the health care system, including quality assurance activities

    Public health

    Research, generally limited to when a waiver of authorization is independently approved by a privacy board or Institutional Review Board

    Judicial and administrative proceedings

    Limited law enforcement activities

    Emergency circumstances

    For identification of the body of a deceased person, or the cause of death

    For facility patient directories

    For activities related to national defense and security

    The full statement is here:

    http://biotech.law.lsu.edu/cases/medrec/hippa01.htm
     
  4. jamming

    jamming Banned

    What if these girls had made false allegations in the past, would that not bear on whether or not this might be another in a pattern of behavior. The right to confront the accusor is a basic right in our judicial system, would it be easier to convict someone if we didn't have that right. Assuredly it would, not everyone who makes an accusation is telling the truth or even telling a full lie. Miscarriages of justice do occur and we recognize that they do which is why we have appeals courts. When someone comes forward into court they need to recognize that all their lives become subject to review. This works both for and against the victims and the defendant, it is harder for the prosecution acting as an agent of the people of this country to gain a conviction, it is a fundamental aspect of our approach to curbing the heavy handedness of government. I am suprised to find that people that object to the depth of the Homeland Security Act, have no problem objecting to the protection of defendants under the laws of this land. This is the ultimate safeguard for our country that lets me sleep, knowing that at anytime a jury can overturn the best laid plans for domination put into any law.
     
  5. yazdzik

    yazdzik Veteran Member

    BDD,

    You do not really want to hear what I think.

    When I do more research, I'll be more reasoned, but my feelings...

    I could not begin to express my disgust that a member of the bar would allow a PI to extract information illegally, then ask for confidential records.

    That a judge would even consider this perverted way of looking at statute(HIPPA) superceding privilege frightens me to death.
    Can you imagine the icy wind on all police officers trying to investigate SA, or even homicides where medical personnel were involved, were this abuse to stand?

    If you have never done a rape, it is the worst kind of case to handle, because, no matter how much we try to stay calm, we do not.

    It is the investigating officer's abilities to create trust that make the biggest difference in recovery for the victim, and even to me, that is more important than prosecuting successfully. But if one does wish to prosecute, the trust of the victim is the most important factor, and that depends upon the first on scene, the detective, and the DA. If the judges use HIPPA as an excuse to demand discovery of previously privileged material, there will be no way to prosecute rape.

    I am generally not as vitriolic as some here, and will wait until I've read more to comment seriously, but right now, I am in favour of a public hanging of the defence counsel and the judge.
    If a real cop were to talk to the grandmother and the records discovered, they would never be admitted. And, why, tell me why, did the AG of Massachusetss not suspend the PI's licence?
    I apologise for complaining, but it appears to me that we might as well all just abolish real police work, real lawyering, and let the criminals go on talk shows to pay for their star lawyers.
    In my day, criminal defence lawyers and prosecutors were a brotherhood of those trying to seek truth in an adversarial system. Now, the DAs are all politicians, and the defence counsel egomanical primadonnas. The victims are just grist for their mills.

    It is,however, at least fitting that it took place in Salem.

    Next time, let us just handcuff the first on scene, the primary, and csu, and offer the rapist a glass of claret.

    With apologies,
    M

    I shall write more intelligently when I see the court papers.
    An angry Martin is not a pleasant read. Sorry.
     
  6. HaYwIrE

    HaYwIrE Banned

    Agreed. :thumbsup:
     
  7. yazdzik

    yazdzik Veteran Member

    Dear Jim,

    Everything you say is true, but this is not such an instance. The PI lied to obtain information, which is privileged. It does not matter if it is the victim, or the defendant, the medical records are sacrosanct, since, ultimately, this protects more deeply against the abuse of power which we both so deeply fear.

    The judges' ruling would allow both the people and the defence access to currently privileged records without the need for an in limine motion showing the absolute necessity against penal interest.

    In other words, if you are arrested for a crime, the prosecution can see your medical history, and, if you are a victim, the defence lawyers can use it as well.

    It is has rightfully been off limits for hundreds of years.

    For everybody, everywhere. Privilege is one of the last fortress walls of civil rights we have yet to tear down, and this ruling, were it upheld, is a pebble against it.

    Rape is the hardest crime to prove and the hardest crime to defend. It is for this reason that fairness must be absolute and unquestioned, and the privacy of both the defendant, his previous history etc, and that of the complainant, unless either is more relevant than prejudicial, be kept out of trial.

    We have held doctor/patient, lawyer/client, minister/penitent privilege sacred for too long to abandon it for administrative facility.

    Sincerely,
    Martin
     
  8. LissaKay

    LissaKay Oh ... Really???

    I wonder if those that think it's OK to parade a rape victim's private, personal thoughts and feelings that she had shared with a counselor in the name of healing in front of a courtroom filled with strangers would still agree if THEY were the rape victim???

    Is that hard to imagine for you fellows?

    It could happen you know. Males too, have been victims of the worst, most violent and soul wrenching violation that any human being can commit upon another. It is not a sexual act, it is more like murder ... murder of the spirit. The body and mind are left to pick up the pieces and carry on.

    Counseling, therapy and just talking to caring friends and relatives is part of the healing process. The victim bares her wounded soul to these trusted people in the hopes of achieving some sort of catharsis or closure to the horrendous experience. Violating that trust by forcing the confessions of the soul into the courtroom where they will be picked over, analyzed and ultimately used against the victim is raping her all over again.

    In years past, and not so long ago, women hesitated to report the crime of rape because of the way victims were allowed to be cross-examined in the courtroom. The defense would ask her what she was wearing, how low her blouse was, how many men she had slept with, even whether she orgasmed during the attack. Fortunately, we as a society have become more enlightened as to the true nature of a rapist, and the micro-examination of the victim's life is no longer part of the defense arsenal.

    But now the court wants to put the victim's soulful confessions to her counselor on the witness stand?!?

    Let's say the rapist had sought private counseling for anger issues or other mental health treatement prior to the offense he is accused of. Would the court also subpoena the counseling treatment records of the rapist? Could they be held against him?
     
  9. HaYwIrE

    HaYwIrE Banned

    It may sound cruel and make things harder on the victin, but as midranger pointed out a man accused of such a horrible crime has every right to use every means at his disposal to defend himself, so long as the documents are <b>legally</b> obtained. When one presses charges on someone else for any crime, they must be willing to go all out to prove that a crime was committed.
    I disagree with you there. I have always said that rape comes second only to any crime committed against a child. Murder is the third worst crime a person can commit in my opinion.
    No. The defense wants to do it, and I think they should have that right. What if, during the counseling sessions, she admitted to making the whole thing up? What if this isn't the first time she lied about a thing like this? I can definitely imagine a woman screaming rape out of spite, anger or other reasons and am absolutely positive that it's happened <b>MANY</b> times in the past and will happen again and again and again.
    I dunno if they could. But I know they should. I'm sure, given the right circumstances, they can, too.
     
  10. LissaKay

    LissaKay Oh ... Really???

    By what right does anyone have to make things harder on the victim in this manner? If the victim is lying, it can be brought out in cross-examination.

    Don't twist my words. I did not make a statement about whether rape is a worse crime than any other. I said it is not a sexual crime, it is a crime of violence, a crime against the soul like no other. It is the victim's soul, her spirit that bears the worst wounds. Victims themselves have said it is like having her soul murdered.

    What if she did say she made it up to a counselor or psycho-therapist? What if? Privilege is privilege. And it is ... it must be kept sacred. The lawyers can figure out ways to prove or disprove accusations through legal means. The lawyers and investigators in the above article acted outside the law by lying to the grandmother. The judge is wrong to allow those records to be brought into evidence. He is wrong to allow them to rape the victim yet again.
     
  11. jamming

    jamming Banned

    The PI lied to a potential hostile witness for the prosecution, instead of going further. It has been held in several cases for the police to be able to lie to a defendant, or pressure a witness, and promise things they could not deliver on. This seems like a courts attempt to allow some parity for the defense.

    You know as well as I that privilege is not absolute, the judge should at least take a look at whether the material has any value in this case, before turning it over to the defense. That would of been a proper function of a judge in this case, preventing anything not germaine to the prosecution from being entered into the court record.

    I do not believe that priviledge can be withheld if the person is saying that they are in the process of or are going to commit a felony crime. If the youngster's are bearing false witness then the counselor's should not believe that they should be protected if they did not report it. I have seen Minister's and Health Professional's ignore their responsibility for reporting crime under the expectation that the individual would never give up priviledge and that sicken's me as much as open disregard for priviledge. Somewhere, there need to be expected at least a blind peer review or something, but as the law exists now there is no such animal.
     
  12. Coot

    Coot Passed Away January 7, 2010

    When the evidence is not overwhelming that a crime has in fact occurred, protecting the claimant to the exclusion of other evidence is ludicrous. When the evidence of the crime is preponderate, the exclusion of evidence that the accused might not be the perpetrator is likewise ludicrous. There are cases each and every year wherein men convicted are exonerated by DNA evidence as the testimony of victims and eyewitnesses are disproved. Should a man spend 10 or 20 years in prison, wrongfully accused and convicted when the truth of the matter could be possibly derived from records?

    As tough as this might be on a rape victim, I would submit that the wrongful conviction of an innocent man would be a more vile crime if there is exculpatory evidence in such records.
     
  13. HaYwIrE

    HaYwIrE Banned

    The right to make things harder on the victim is not the question. The right for the accused to bring forth possible evidence to prove his innocence is.
    Cross examination won't amount to a hill of beans if she simply lies. True... many people do get caught in their lies. But many get away with them and I submit that <b>one</b> man being wrongfully convicted of rape is too many.

    Yeah Demi... it's a horrible thing for a woman to have to go through... probably the most horrible thing a woman would have to go through. But the accused has right to a fair trial and convicting a man solely because a woman claims he raped her would be wrong. Even more so if there are records or documents proving that she lied that were not allowed into evidence.

    Believe me... I feel deeply for any woman who has suffered through a rape. But I do not think that any possible proof of the accused's innocence should just be locked up to protect her psyche.

    Coot put it quite eloquently...

    "<i>I would submit that the wrongful conviction of an innocent man would be a more vile crime if there is exculpatory evidence in such records.</i>"
     
  14. ShinyTop

    ShinyTop I know what is right or wrong!

    I think the judge determining if the confidential records actually have a bearing on the case is as good a compromise we can make. Certainly we want to protect rape victims. But we must also protect the charged as though they were innocent, for such is our law.

    What is horrid here is that the threat of revealing the confidences is used by the defense to coerce the rape victim to drop the charges. The vileness of this tactic should result in more hanging of those who would profess this defense.

    So we must not allow such a defense to work. If the confidence is to be breached it must be by the judge alone and allow him to determine its relevance to guilt or innocence.
     
  15. ShinyTop

    ShinyTop I know what is right or wrong!

    But Haywire, fishing expeditions should not be allowed. You said if exculpatory evidence is there. Let that be determined by a judge or other neutral party, for damn sure not by the defense lawyers.
     
  16. Coot

    Coot Passed Away January 7, 2010

    I only brought this up to show that there is no inherent balance in the practiced law. While it is true that there are deplorable crimes committed against women, the equally deplorable act of wrongful imprisonment exists.

    The law is not moral ( wait until Martin gets ahold of this one), the law simply is the instrument by whcih we seek justice...justice in and of itself is also not moral, but rather by definition, the execution of the law.

    When we perceive that bad things are done by the courts, we impinge our own moral outrage. The law, in and of itself, cannot do this. Rather, it holds to its own exacting standards...Standards that can apparently be bought and sold...but that is the topic for another thread.
     
  17. yazdzik

    yazdzik Veteran Member

    Dear Friends,

    This is what we are talking about. The ruling in the case is not whether a judge has to view the information and decide as to admissibility, rather, that priviliege is removed without review.

    Conspiracy to commit a crime, by the way, has alwayys been an exception to privilege, so that is not an issue, nor is the issue that no one ever can use medical records, if those records are against penal interest. The latter is a kind of fancy way of saying you cannot use a right to commit a
    crime.

    In a case like this, to make up an example, a rape victim tells her doctor,
    "I am just faking it. He never touched me."

    This statement is clearly not privileged, as it is against penal interest to allow privilege to create perjury in the complaint. The affiant is lying, and that is illegal, thus, the statement to the physician is no longer protected.
    \

    Likewise, if a lawyer knows of a crime, let us say, and that crime is continuing, his failure to report that crime is conspiracy, and removes privilege. One cannot, as well, go to one's lawyer and ask for advice on how to commit a crime!
    People, believe it or not, do. Lawyers call the cops, same as everyone else.

    It is precisely the judge's reviewing of the information which needs to be asserted here, rather than admitting it because it is "there." If the judge reads the medical reports, and sees exculpatory material, he would surely allow its inclusion. No one disagrees with that.

    What we are upset about is the idea that what is said in a truly privileged situation, where only help is sought, can be brought out into the light of an open courtroom.

    That is a diiferent issue. The most private utterances of one' soul are neither meant for, nor admissible in, a court of law.

    As to morality, Coot, the law is a process. As such, the law is neither moral nor immoral. Courts are courts of law, not of justice.

    However, all officers of the court are, reasonably enough, held to the highest moral standard. Else, Clintonism. A lawyer never lies.

    What we dare not have is a world with no place for the abused to turn, for fear their shame will become a bawdy joke for the prurient masses. Every woman needs to be able to feel that in a moment of real agony, the police are there to help, that her doctor is there to help.

    This is not hiding evidence, but is the touchstone of a society where people's basic dignity is affirmed. It is fundamental to that dignity that the traditional privileges remain untouched.


    Best,
    M
     
  18. BigDeputyDog

    BigDeputyDog Straight Shootin Admin Staff Member

    I may be wrong, but I believe the Women's Resource Center is a place where this girl went to get psychological counselling. I don't know how things are done in Salem, but in my jurisdiction the victim of a rape is taken to the hospital and physical evidence is obtained through the use of a "rape kit".

    From what I have read, the actions taken were not to gather information about the physical evidence but about the girl's psychological state.

    BDD...
     
  19. Advocat

    Advocat Viral Memes a Speciality Staff Member

    Coot, since DNA testing does exist today to be the final arbiter in rape cases, it rather voids your arguement that lack of access to counseling records will result in a totally innocent man going to jail... unless, for some strange reason, the defendant doesn't want his DNA tested to clear his name. The issue then become one of "consent"

    Of course, the defense should have access to relevant information on admissions of fraud; however, rarely... I won't say never, as I can't prove that... have counseling records contained admission of false evidence. Historically, defense attorneys been free to cross-examine the victim in court about comments/sexual history discussed during counseling.

    Rape is a mentally destructive crime for the victim, shaking their mental state and belief in themselves. Often during counseling, they ask if they instigated the rape, if they dressed wrong or said something... and defense attorneys jump on these vague comments to prove the girl "deserved" it. A common tactic of defense is to say "the girl asked for it", or "she was sexaully active, how can you believe this wasn't consensual?". Blanket access to records just gives the defense ammunition to shoot with when attacking the victim. The proscecutor, of course, is forbidden to bring up any past crimes -- even if of a similar nature -- of the defendant.

    In Canada, we went through this whole process about a decade ago. Our version of the rape shield law, C-46:
    http://laws.justice.gc.ca/en/1997/30/8486.html
    is fair to all sides.

    1) The defense can call for an examination of records. The prosecutor must then make known what records exist.

    2) The defense must "show cause" as to why any specific records they request access to are relevant to the case. The judge decides if this burden is met; eg, during a rape case, access to the victim's financial records isn't likely to be relevant.

    3) The court then orders the production of relevant records. The judge, in camera, reviews the records and provides both counsels with any relevant information found therein... all other information in the records is held in private by the court and sealed.

    This way, true evidence <b>related to the case under trial</b> is provided, while providing protection to the victim.
     
  20. ethics

    ethics Pomp-Dumpster Staff Member

    I have to side with BDD and Advocat (and others) on this. Psychological counseling is private, so sorry. And as BDD pointed out, you want evidence? You can obtain plenty with physical evidence, including DNA.

    To have this woman raped again by the law is lower than the crime itself.
     

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