lucky-E-leven
Aphrodisiaddict
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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
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