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NEWS
Privacy of Rape Victims Clashes With Trial Rights

January 26, 2003
By ADAM LIPTAK

LAWRENCE, Mass., Jan. 24 - The Women's Resource Center is
stocked with toys, children's books and masks. Samantha A.
Zellinger, an employee, says they help young victims of
sexual abuse feel comfortable during counseling.

"If their hands are busy," Ms. Zellinger said, "it's easier
for them to talk."

Whether the center can protect the privacy of those talks,
though, is uncertain. It was held in contempt of court this
month for refusing to turn over the counseling records of a
16-year-old girl to lawyers for the man she says raped her.
The court imposed a fine of $500 for each day it did not
comply with its order.

The defendant's lawyer, Paul Rudof, concedes that he does
not know what the records contain. But, Mr. Rudof said,
they might exonerate his client.

"The question is," he said, "what's more important - one
individual's private communications with a treatment
provider being revealed in a limited fashion, or the
potential that an innocent person be convicted of a crime
where exculpatory evidence could have been available?"

More than half the states give some protection to rape
counseling records. But the laws vary, and courts have
struggled to balance an accuser's privacy with a
defendant's right to a fair trial.

The privilege for rape counseling is far less well
established than that protecting communication between
lawyers and clients or doctors and patients. How much
privacy women get depends on money, Wendy J. Murphy, the
center's lawyer, said.

"It really depends on whether you are rich or poor," she
said. "Rich people go to their doctors. Poor people go to
rape crisis centers."

The immediate question in this case is whether the
defendant, Manuel Valverde, 20, is entitled to know how
many times his accuser received counseling.

Even the prosecutor, Jean Curran, said Mr. Valverde was
entitled to that much.

Mr. Rudof explained why he wanted the information.

"Someone who was truly raped and traumatized in the way
this girl claims to have been won't have just ceased going
to counseling after a couple of sessions," he said. "That's
inconsistent with true counseling."

That assertion outraged Ms. Murphy.

"The sexist and
speculative nature of this argument aside," she wrote in
court papers, "there is simply no logical nexus between a
victim's credibility and the number of times she talks to a
counselor."

She added, "There is no responsible way to generalize about
the `typical reaction' or the behavior of a `typical' rape
victim."

Ms. Zellinger has another reason some rape victims might go
to counseling only a few times. "Maybe it's so traumatic
that they're not willing to face it," she said.

The $500-a-day fine, imposed by Judge Peter Agnes Jr. of
Superior Court on Jan. 2, has been suspended until next
week, to give the center time to appeal. The appeals court
has not indicated whether it will hear an appeal. Nor have
the courts decided how much information Mr. Valverde is
entitled to have, though the center has been ordered to
deliver the entire file to the courthouse.

Disputes like this are relatively common. Rape defendants
are more likely than other defendants to seek intimate
information about their accusers, said Douglas E. Beloof, a
professor at Lewis and Clark Law School in Portland, Ore.,
and the executive director of the National Crime Victim Law
Institute.

"Dirt matters in sex, and it doesn't matter in armed
robbery cases," Professor Beloof said, "because the culture
puts the rape victim's character on trial."

Even states that have some protection for rape counseling
records often allow exceptions that make it hard for
counseling centers to assure clients that their confidences
will never be revealed.

"You force any responsible provider to tell victims that if
you talk to us, anything and everything you say could be
read by a judge and used by the defendant," Professor
Beloof said.

Ms. Zellinger said that sort of warning would either
destroy the counseling relationship or undermine
prosecutions.

"People would not take the risk of coming in, or they would
come in with the knowledge that they would not be
prosecuting," she said. "They have to make a choice between
going through the prosecution process or the healing
process."

A few states have absolute privileges. Last month, the Utah
Supreme Court upheld an absolute statutory privilege that
had been challenged by a rapist who said his inability to
inspect the victim's statements had violated his
constitutional right to a fair trial.

Many states, including Massachusetts and Pennsylvania, have
tried a variety of approaches. After decisions in those
states refusing to recognize a privilege, the number of
victims seeking counseling dropped, anonymous calls seeking
help increased and the likelihood that victims who received
counseling would press charges declined, a 1995 Justice
Department report said.

Roger Witkin, a defense lawyer in Boston, said the debate
over the scope of the protection lost sight of the real
issue in a criminal trial.

"A fair trial requires that they give you every statement
the opposing witness ever made, consistent, conflicting,
whatever," he said. "Everything should go to the defense
lawyer."

Ms. Zellinger said the center, which has 15 employees,
could not afford the fines Judge Agnes imposed. "I have
anywhere from 10 to 15 people in my shelter," she said.
"Seven hundred dollars can feed them for a month."

Ms. Murphy has asked the appeals court to consider an
alternative. She gave it the names of 500 women who said
they would each serve a day in jail to satisfy the
sanction. The list has since grown to 2,000 people.

One of them is Gail Burns-Smith, the executive director of
Connecticut Sexual Assault Crisis Services.

"Can you imagine how much pain you have to be in to pick up
the phone and call a hot line because you have no one else
to talk to?" she asked. "If we do not take a strong stand
and protect victims' confidentiality, they will stop coming
to us."

The grandmother of the girl whose records are the subject
of the dispute here is also her guardian. Speaking through
a translator, she expressed surprise, confusion and
discomfort about Judge Agnes's ruling.

"If she is looking for counsel and letting out her feelings
to someone," she said of her granddaughter, "she would hope
it would be kept confidential."