Victim's Rights vs. Defendant's Rights

lucky-E-leven

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Mass. Court Considers Rape Counsel Papers
Sat Mar 20, 7:54 AM ET Add U.S. National - AP to My Yahoo!


By DENISE LAVOIE, Associated Press Writer

BOSTON - A rape victim goes to see a rape crisis counselor for comfort and support after she is attacked. But should the notes from those sessions and other seemingly confidential records be turned over to defense lawyers?

That's a question the state's highest court is grappling with as it attempts to strike a balance between a defendant's constitutional right to examine evidence and a victim's right to privacy.

The Supreme Judicial Court on Friday took the unusual step of forming a committee to study the issue and make recommendations to the court.

The 14-member committee, to be chaired by Associate Justice Martha Sosman, is made up of judges, defense lawyers, prosecutors, victim advocates, health care providers and a representative from the state Department of Social Services.

Defense access to confidential documents, particularly in sexual assault cases, has been a hot-button issue for years.

In 1993 and in 1996, the SJC established a protocol to try to balance the rights of defendants and victims. The protocol put in place some restrictions on a defendant's access to records.

Over the last few years, however, the high court has made several decisions that angered victims' advocates. In one such ruling, in December 2002, the court said victims cannot assume their medical and psychiatric records are private and must actively assert their right to keep their records confidential.

The SJC said the new committee will make recommendations "as to whether the (current) protocol should be retained in its present form, or revised in whole or in part."

Attorney Wendy Murphy, a victim's advocate, hailed the creation of the committee.

"I've been very concerned about the (potential) destruction of rules that have been in place since 1993 that were designed to protect victims from gratuitous violations of their privacy rights," Murphy said. "This (committee) guarantees victims a seat at the table as we begin to talk about what the law could do better."

The court announced the formation of the committee in a footnote to a ruling released Friday in a case that had been watched closely by victims and defense attorneys.

In that case, the high court ruled that a Superior Court judge erred when she rejected a defendant's request to obtain counseling records.

Francis Pelosi was convicted of two counts each of rape and indecent assault and battery on a child under the age of 14. The victims were his children. The state Appeals court affirmed Pelosi's convictions, but the SJC agreed to hear his appeal.

In its ruling Friday, the high court ruled that the judge did not follow the established protocol, and sent the case back to the lower court for another hearing to determine whether the records being sought were privileged.

Carol Donovan, special litigation director for the Committee for Public Counsel Services, said the current standard for determining which records will be accessible to the defense in sexual assault cases is notoriously difficult for defense attorneys to meet.

"There's a suggestion, certainly in some recent cases, that the protocol is unfair to defendants and in certain circumstances would deprive them to a constitutional right to a fair trial," she said.

Donovan said defense lawyers must show that the records are relevant, important, might help show the innocence of the defendant and cannot be obtained from any other source.

"It's almost impossible to make that showing," said Donovan, who was named a member of the committee appointed by the SJC.

Murphy said she was disappointed in the membership of the new committee because the victims' advocates who will sit on the panel work for government offices. "It is very unsettling that the membership does not include the voice of the rape crisis people who have been involved in this for 15 years," she said.

The SJC said the committee is expected to make recommendations within months.

* * * * * * * * * * * * * * * * * * * * * * *

I'm confused as to why these records are even relevant. Doesn't the prosecution still have to prove beyond a reasonable doubt that the defendant is guilty? If the burden of proof is on them as well, then why should the defense get handed a documented account of the victim's counseling?

I'm of the opinion that a very very low number of victims (esp. rape) come forward about their attackers. It doesn't seem advantageous for society to be giving them one more reason NOT to come forward. I know it's a question of victim's rights vs. defendant's rights, but it seems a bit backward to me.

If the court does decide to broaden the scope of what constitutes turning these counseling sessions over, I'd advocate that the victims be advised of their Miranda Rights. Everyone should be warned that their statements to a confidential help source could be used against them. I, personally, think that in the event of crisis counseling the victim or person in crisis needs absolute free reign and confidentiality in order to benefit at all from the counseling services.

~lucky
 
(I characterize the victim of rape as female and the attacker as male for simplicity's sake; obviously any sex is capable of rape or being raped.)

This article points up the fact that legal solutions to crimes of rape and sexual abuse are not ideal, and probably never can be. The law deals in black and white, and rape is far too subject to gray areas for the law to encompass all of them.

I don't mean that there is not a clean bright line between rape and consensual sexual conduct in most sane people's minds. I mean that rape (leaving aside cases of violence and underage victims) is often distinguishable from ordinary sexual conduct only by the hard-to-define, often even to oneself, element of consent. A murder victim looks like a murder victim to anyone. A raped woman, to a third party, can look exactly like a woman who has willingly had sex. Lack of explicit consent to sex can be made to look extremely ambiguous by a defense lawyer. In the minds of many date rapists, anything short of the victim screaming as loud as she can and fending off her attacker with a deadly weapon constitutes consent for their purposes, and they will argue to the ends of the earth that she wanted it.

The way she dressed, the way she behaved, the places she went after dark, the cars she accepted rides in, the things she said or didn't say before or after the act took place, the physical struggle she did or didn't put up in resistance to sex, and in this case, the things she said or didn't say to a counselor after the crime. All of those things can go into the defense of rapists in court, and all of them can blur the picture beyond recovery.

Is it any wonder that acquaintance rapes not involving substantial physical injury are almost never prosecuted? Or that the victims are often not even sure if they are victims? So much of sexual conduct and consent is cultural and individual, and yet in court every action must be held to one arbitrary standard. Does my husband ask me flat out for sex? Do I consent to intercourse in explicit terms? Almost never. Yet I am more than willing to get into bed with him on most occasions. How could he define that to a judge and jury?

If I sound like I am arguing for extra-legal approaches to rape, I probably am. If I were in that position, I doubt that I would have much confidence in the courts; however, I cannot propose a better solution right now. Retaliatory violence has some serious drawbacks. :)

MM
 
This is a hard one. On one hand, yes, I can see the need for the defendant to access the records eg. it comes out in counselling that the victim is not too clear of the identity of the attacker, and this would be invaluable to the defence in creating an element of reasonable doubt.

On the other hand, it is nothing more than a fishing expedition. I think the documents should be priviliged unless there is a strong argument to the contrary - and I mean strong - the defence are almost 100% sure that they are going to find what they are looking for, and what that is.

Also, there should be no positive action needed to be taken on the part of the victim to assert confidentiality over their medical records - that is crazy - the records should be confidential as of right.
 
lucky-E-leven said:
Donovan said defense lawyers must show that the records are relevant, important, might help show the innocence of the defendant and cannot be obtained from any other source.

"It's almost impossible to make that showing,"
said Donovan, who was named a member of the committee appointed by the SJC.

"Almost impossible" is NOT the same as "impossible." Let the Defense be explicit about what they expect the records to show and produce some "probable cause" to believe that the information exists.

Why should the Defense in any case have fewer restrictions than law enforcement does?

Law Enforcment has to jump through numerous hoops to get a search warrant, with additional hoops involved if the warrant involves "the Seal of the Confessional" -- i.e. doctor/patient, Lawyer/client, parishoner/priest, type priveleged communications. Defense Lawyers should have to jump through the same hoops to supoenae information as law enforcement has to to get a search warrant for the same information.
 
The issue is complicated. In many cases of rape it boils down to he said/she said. If the defendant says yes, we had sex, but it was consensual, then the evidence from a rape test kit is clearly minimized.

A common defense ploy in rape trials is to attack the victim, paint her as easy, promiscuous or mentally instable. The notes from an alleged victim's cunselling could show anything from the severe truma & anguish of a real victim, to the blaze` & ficticious attitude of a woman crying rape to settle a score. You just don't know in a lot of cases. The defense has a right to know if the victim was acting in a way that is totally inconsistant with someone who has been raped.

At the same time, simply abrogating an alleged victim's rights to privacy and confidentiallity is like rapeing her a second time. It's a violation of her person and while not as violent it is still potentially just as trumatic. Where do you draw the line?

For me, the defense should be held to the same standard as any other organization that is trying to get access to priveledged documents. The fact that you went to the police should not be an implicit admission that you are giving up your rights to privacy and confidentiality. Nor should the fact that you reported a crime allow your life to become an open book for the defendent's lawyers.

If the defense can show probable cause for those records containing information vital to their client's defense then they should be granted access, but that access should be under the same strictures as a search warrant. I.E. if they gained access under the probablility of them showing the alleged victim had a motive to lie, and such information is not forth coming, then the judge should place all other infromation gleaned as inadmissible.

If those records show no motive to hurt the defendant, but do show the woman is a swinger, that information should be bared from the proceedings. Any attempt by the defense to allude to her sex life should be rigorlessly denied by the judge. Like a search warrant, if you go in looking for one thing, and find something else, that something else should be held inadmissible.

Rape happens. People falsely accuse others of rape too. The assumption of innocence demands that prosecutors share all evidence with the defense. If they did not then each defendent in a trial would have to mount their own investigation to prove their innocence. That said, being a victim should not also strip you of your rights and one of those is pricay and another is doctor patient confidentiallity.

If the prosecution intends to use information from those counselling sessions as evidence, then the defense has a right to the transcripts. If not, then the defense should be held to the same strictures as anyone else. Probable cause and the ruling of other information gleaned as inadmissible. Violating her rights a second time to see those transcripts should carry an extremely high probablitility of hurting the defenes case if they don't show exactly what the defense is claiming.

I.E. if the defense is claiming it was consensual and the woman is now feeling remorse and the transcripts don't support that, then anything else in those transcripts that is even mildly potentially damaging should be completely barred from the proceedings. If defense was held to those standards you would see a very small incidence of them demanding such transcripts. Only when they were pretty damned sure the accusations were false and the cunselling transcripts would prove it, rather than blanket attempts to use such transcripts, while a victim is traumatized to find personal faults that can be explotied.

-Colly
 
Unless the prosecution is using information from the rape counciler, why would the defense be allowed too?

I really can't think of anything that a defense would get from using it anyway, other than just pure intemidation.


I don't know, I think this is pretty poor law if they want to use this.
 
BigAndTall said:
I really can't think of anything that a defense would get from using it anyway, other than just pure intemidation.

You got it in one, B&T. The best defense being a good offense, most lines of questioning toward the victim in a rape trial are offenseive as hell in all meanings of the word.

- Mindy

ps Damn you Brits! I caught myself typing defence instead of defense! :rolleyes:
 
minsue said:
You got it in one, B&T. The best defense being a good offense, most lines of questioning toward the victim in a rape trial are offenseive as hell in all meanings of the word.

- Mindy

ps Damn you Brits! I caught myself typing defence instead of defense! :rolleyes:


Hmm, I still there there is a place in this world for a father or brother, or sister or who ever and a shot gun.

And before anyone says anything about how wrong that is, I know...but sometimes .....
 
If I may comment on Madame Manga; a robbery victim does not show it either. He or she claims something was taken by threat or force.

If the robbery victim had been in counselling before; or after the robbery because of trauma, I don't see the relevance except in extremely limited circumstances (which should be demonstrated to a judge, in camers). For example, if the counselling concerned the victim's habit of cooking up stories to get the police to give him or her attention.

Simple mental or emotional problems, imo, shouldn't be an issue unless they involve psychotic delusional episodes or lots of imaginining or lying.

I don't think 'promiscuity'-- having more sexual partners than I-- should be grounds for allowing counselling material (even assuming that was an issue in counselling.)

As the old argument goes, one doesn't ask the robbery victim, "How often have you given away money to strangers? Might that not be what happened here?"

Suppose in counselling after the robbery, the 'victim' admits to the counsellor it didn't happen.? Well, it would be hard to know that, and I don't see licensing a fishing expedition on the matter (in case the 'victim' did that). If the victim spills those beans to a person in a bar, the defense in welcome to bring in that person.

My 2 cents.
 
minsue said:
Yes, but you invented some of it just plain wrong! :D

ROFLMAO! Damn, Min, that was too much. My ribs are already sore and now they're just crying with pain. Warn me next time?

~lucky :heart:

:D
 
Pure said:
If I may comment on Madame Manga; a robbery victim does not show it either. He or she claims something was taken by threat or force.

If the robbery victim had been in counselling before; or after the robbery because of trauma, I don't see the relevance except in extremely limited circumstances (which should be demonstrated to a judge, in camers). For example, if the counselling concerned the victim's habit of cooking up stories to get the police to give him or her attention.

Simple mental or emotional problems, imo, shouldn't be an issue unless they involve psychotic delusional episodes or lots of imaginining or lying.

I don't think 'promiscuity'-- having more sexual partners than I-- should be grounds for allowing counselling material (even assuming that was an issue in counselling.)

As the old argument goes, one doesn't ask the robbery victim, "How often have you given away money to strangers? Might that not be what happened here?"

Suppose in counselling after the robbery, the 'victim' admits to the counsellor it didn't happen.? Well, it would be hard to know that, and I don't see licensing a fishing expedition on the matter (in case the 'victim' did that). If the victim spills those beans to a person in a bar, the defense in welcome to bring in that person.

My 2 cents.


Well thats the difference I think. I'd sooner trust a judge in chambers than having that all forced out on the stand.

At the most, I think chambers is the ONLY place this kind of "evidence" (note the "" as I am not sure it really is evidence) should be reviewed.
 
BigAndTall said:
Well thats the difference I think. I'd sooner trust a judge in chambers than having that all forced out on the stand.

At the most, I think chambers is the ONLY place this kind of "evidence" (note the "" as I am not sure it really is evidence) should be reviewed.

That depends on whether the defence asks for a jury trial or a bench trial. It's not beyond some lawyers in a bench trial to request obviously prejudicial and irrelevant evidence to be screened in chambers in their request to have it entered into the record. Judges are people and even if they rule it inadmissible it's still going to be in their minds.

- Mindy
 
Well, both W. Harold and Colly bring up good points, and Western law, based in Chritiantiy, is especially skewed toward a male.

"If she was raped up the ass, but is still a virgin, then is there really any rape at all?" Oh, the defendant won that case - strange as it may seem, but then in analogy the idiot who put a hot cup of coffee between her legs, and burned her cunt, also won her case.

An aside.

As a defense council, if I were LOL - I would argue that a counsellor is not in the same private and priviledged position as a doctor, lawyer, or priest, so therefore, the laws governing privacy are inapplicable. A counsellor is not bound by the code. Blah, blah.

On the other hand, one could argue for the plantiff from a constitutional perspective . . . I did not know that what I said to a counsellor could be used against me . . .

Of course I have read only part of the story, and a few threads, but . . . .

A victum in a rape case is almost always the defendant :(
 
CharleyH said:
Well, both W. Harold and Colly bring up good points, and Western law, based in Chritiantiy, is especially skewed toward a male.

"If she was raped up the ass, but is still a virgin, then is there really any rape at all?" Oh, the defendant won that case - strange as it may seem, but then in analogy the idiot who put a hot cup of coffee between her legs, and burned her cunt, also won her case.

An aside.

As a defense council, if I were LOL - I would argue that a counsellor is not in the same private and priviledged position as a doctor, lawyer, or priest, so therefore, the laws governing privacy are inapplicable. A counsellor is not bound by the code. Blah, blah.

On the other hand, one could argue for the plantiff from a constitutional perspective . . . I did not know that what I said to a counsellor could be used against me . . .

Of course I have read only part of the story, and a few threads, but . . . .

A victum in a rape case is almost always the defendant :(

Confidentiality is a large part of the code of ethics and law in regards to counseling or psychiatric care. The problem, in my mind, lies in the fact that most rape counselors are not in fact licsensed counselors. I'm not sure if that provides a legal loophole or not.
 
minsue said:
Confidentiality is a large part of the code of ethics and law in regards to counseling or psychiatric care. The problem, in my mind, lies in the fact that most rape counselors are not in fact licsensed counselors. I'm not sure if that provides a legal loophole or not.

If I were a lawyer, I would argue it does have a bearing . . . having been in PR - gag - politics and health . . . confidentiality comes up regularly . . . but a counsellor? The Hippocratitc Oath is not really applicable to someone with a half degree . . . and one could, could argue many p.o.v's I think. A counsellor would be in the position of a journalist - not bound by privacy issues, but only bound by their word and morals, and their constitutional rights. t
 
CharleyH said:
If I were a lawyer, I would argue it does have a bearing . . . having been in PR - gag - politics and health . . . confidentiality comes up regularly . . . but a counsellor? The Hippocratitc Oath is not really applicable to someone with a half degree . . . and one could, could argue many p.o.v's I think. A counsellor would be in the position of a journalist - not bound by privacy issues, but only bound by their word and morals, and their constitutional rights. t


Maybe the code and ethics should apply to the lawyers not the counselors.
 
CharleyH said:
If I were a lawyer, I would argue it does have a bearing . . . having been in PR - gag - politics and health . . . confidentiality comes up regularly . . . but a counsellor? The Hippocratitc Oath is not really applicable to someone with a half degree . . . and one could, could argue many p.o.v's I think. A counsellor would be in the position of a journalist - not bound by privacy issues, but only bound by their word and morals, and their constitutional rights. t

Canadian law may differ, but here I do feel confident in the knowledge that psychiatrists and psychologists are bound legally to keep the sessions confidential with the exception of it being permissible to report it if a client states that they will harm someone. I'm fairly sure that extends to liscensed counselors, although by no means positive, but I've no idea what (if any) legal protections there are for rape counseling sessions that are performed by someone who is not a liscensed counselor.

- Mindy
 
minsue said:
Canadian law may differ, but here I do feel confident in the knowledge that psychiatrists and psychologists are bound legally to keep the sessions confidential with the exception of it being permissible to report it if a client states that they will harm someone. I'm fairly sure that extends to liscensed counselors, although by no means positive, but I've no idea what (if any) legal protections there are for rape counseling sessions that are performed by someone who is not a liscensed counselor.

- Mindy

A Psychiatrist is bound, but is a counsellor - our laws are practically but not quite the same . . . counsellor is a huge diversion from both psychiatry and psychology . . . a doctor has an innate legal RIGHT to confidentiality, but does a psychologist, or lesser, a counsellor? No. Contempt . . . it becomes about moral obligation and concern. The question, which I know not the answer to, is whether under a supoena, a counsellor would have to give information . . . I doubt a doctor - lawyer - priest for Example - would . . . so the law - if to argue about that, would be, that a counsellor does not have a right to withold information . . . a thought, convoluted and not quite articulated . . . where is DES when I NEED her :)
 
If (lets say she) told a friend about it, isn't that hersay? So because she told a "professional" that is suddenly not hersay?
 
CharleyH said:
A Psychiatrist is bound, but is a counsellor - our laws are practically but not quite the same . . . counsellor is a huge diversion from both psychiatry and psychology . . . a doctor has an innate legal RIGHT to confidentiality, but does a psychologist, or lesser, a counsellor? No. Contempt . . . it becomes about moral obligation and concern. The question, which I know not the answer to, is whether under a supoena, a counsellor would have to give information . . . I doubt a doctor - lawyer - priest for Example - would . . . so the law - if to argue about that, would be, that a counsellor does not have a right to withold information . . . a thought, convoluted and not quite articulated . . . where is DES when I NEED her :)

A doctorate is not necessary. A psychologist is also bound by confidentiality. I just don't know if a counselor is. (My father would be so ashamed right now. Spends all these years as a counselor, sits on all these boards of mental health, and his daughter has no idea if he's covered by confidentiality or not. :rolleyes: I can guarantee it's been mentioned and probably many, many times, but I don't remember.)
 
BigAndTall said:
If (lets say she) told a friend about it, isn't that hersay? So because she told a "professional" that is suddenly not hersay?

The various rules and loopholes involved in heresay confuse me. I don't know.
 
Deleted because, what the hell do I know about it anyway? I have work to do tonight; opinions are a luxury I cannot afford, while there is swampland that needs to be sold to wealthy golfers.

:eek:
 
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