Advocates for crime victims are celebrating a new state Supreme Court ruling that makes it harder for defendants to access their accuser's mental health treatment history.
The court handed down its decision after a man charged with sexually assaulting a minor tried to get ahold of his accuser’s mental health records in court. The accuser’s counseling center informed her that the defense requested her records without her permission and she objected.
A Superior Court judge originally said the defendant could access the accuser’s treatment records, but when she appealed to the Supreme Court, it ruled otherwise. In its decision, the court wrote that, like medical records, a person’s mental health treatment is private information and has strong protections.
The New Hampshire Coalition Against Domestic and Sexual Violence says the ruling is a win, as mental health records are often used against victims of assault.
“It's very difficult to report a violent, intimate crime and then be in a public courtroom talking about it,” Lyn Schollett, executive director of the coalition, said. “So for the victim to know that they can then go and speak with their therapist or speak with their advocate and have those conversations be protected is vitally important.”
The ruling also requires the court to inform an accuser and give them a chance to speak if the defense tries to access their mental health information in the pretrial discovery process.
Jeffrey Odland, president of the New Hampshire Association of Criminal Defense Lawyers, says the impact of the ruling will be determined in the future as new cases work their way through the lower courts.
“But any time relevant evidence is excluded from the trial process, the risk of wrongful convictions increases,” Odland wrote in a statement to NHPR.
Lyn Schollett spoke with NHPR Morning Edition host Rick Ganley about how mental health records have previously been used in domestic and sexual violence cases, and shared her perspective on how the Supreme Court decision could affect future cases.
Transcript
First, can you tell us more about this case that was before the Supreme Court?
This case is an appeal from a criminal sexual assault prosecution in Belknap County. So in this case, the defendant, who was facing four criminal charges, tried to access the victim's counseling records from private therapists as well as records from a crisis center in New Hampshire. Initially, the court ordered that those records be turned over.
When the victim found out, the victim objected. As a result of that, the victim was able to intervene in the case – victims aren't technically a party in criminal cases – and actually get standing to take her appeal to the New Hampshire Supreme Court. So as a result, the court ruled on whether or not the defendant could access those records.
How have mental health records previously been used in cases of domestic violence or sexual violence?
This case addresses a significant problem that happens in courts across the country, which is that defendants, particularly in sexual assault and domestic violence cases, try to use irrelevant personal information about victims against them, and they try to do that by building on the shame that is already layered onto victims.
So, for example, someone who is sexually assaulted or battered often experiences self-blame or questioning or shame by our community. And defendants build on that by trying to get to private information about victims and using it to intimidate them or even prevent them from coming forward in the first place.
And what we find is that victims are often not given notice, and not given an opportunity to even say what their interest is in those records being released. And what's also important to know is that often these records are not even about the assault themselves. When victims seek mental health counseling or come to a crisis center, it is very often to deal with the aftermath of the assault.
Have you heard from people before who were nervous about getting treatment or going to court because they were worried about their records being used against them?
Absolutely. We see it happen all the time, and sometimes victims begin to report a crime and then when they find out that their records are going to be used against them, they decline even to participate in the prosecution. And it makes it impossible for the case to even move forward.
So now the Supreme Court has created stronger protections for people's treatment records. What could this mean for cases in the future?
This will have a very real day to day impact in the courtroom. What it will mean is that when someone, usually the criminal defendant, is seeking the victim's records, they will have to let the victim know. They'll have to let the provider know, whether that's a therapist or a crisis center. And the victim will actually have an opportunity to come to court and say what their interest is. 'Yes, I want to release the records,' or 'No, I want to keep them private.'
In that process, the court has to make certain findings now, and it will be very important that those are documented in the record. They have to show whether this information could come from anywhere else, whether it is difficult to get, whether it's even likely to be exculpatory in the case. And those considerations have not been evaluated by the courts historically.
I think one of the things this opinion does is it protects very important, trusting relationships that victims need to build with therapists and advocates to move forward. It also removes some of the stigma around mental health care. We hope that anyone who experiences a trauma will be able to access counseling and advocacy services throughout New Hampshire. It will ensure that victims are able to simultaneously participate in a criminal prosecution, which is an adversarial process.
It's very difficult to report a violent, intimate crime and then be in a public courtroom talking about it. So for the victim to know that they can then go and speak with their therapist or speak with their advocate and have those conversations be protected is vitally important.
