NCJ Number
189368
Journal
Sexual Assault Report Volume: 4 Issue: 6 Dated: July/August 2001 Pages: 83,90,91
Date Published
2001
Length
3 pages
Annotation
This paper argues against allowing defendants pretrial access to victims' therapy records.
Abstract
Increasingly around the country, rape victims' counseling records are being sought and obtained by the defense as a matter of right during the pretrial discovery phase of the criminal trial process. This has been a confusing area of the law for many years, especially since the 1987 U.S. Supreme Court decision in Pennsylvania v. Ritchie, in which the Court allowed a defendant in a child sex abuse case to obtain confidential records from an investigative social service agency. Since the agency was mandated to investigate allegations of child abuse and assist in the gathering of evidence to assist the prosecution, the confidential records at issue were in the "custody, possession or control" of the prosecution. Thus, the records were subject to Federal constitutional fair trial requirements that demand disclosure of such documents in certain circumstances. Some States have stretched and misinterpreted the holding in the Ritchie case to include private third-party records. Because no post-Ritchie case has been decided by the U.S. Supreme Court that would explain the limits of Ritchie, some States have developed confusing case law that has placed unfair burdens on victims and their private mental health care providers. By treating defense motions for disclosure of counseling records as "pretrial discovery" requests, rather than respecting the strict "production-for-trial" parameters of the Constitution and related rules of production, some judges have become private investigators for the accused. They foist their governmental power needlessly on important privacy rights of victims in order to "search for" evidence the defendant might be able to use to construct a defense. Such a practice has been used almost exclusively in cases that involve women victims of violence.