Behind the Law

         “You can’t deny my client his Sixth Amendment rights!” 

         Huh?  Me?  I wouldn’t dream of it. 

         I’m just doing my job.  Which happens to include keeping convicted child molesters like Joseph K behind bars.   

         No matter. Today, K’s attorney is on a rant.  “We have a right to see those medical records,” he tells me.  “The Confrontation Clause guarantees defendants the right to confront their accuser.”

         He’s so convincing that, at first, I'm flustered.

         Jeez. Was K screwed-over by the system? How did I miss this?

         Then I remember he’s only pretending.  We’re attorneys, he and I.  We are advocates and every so often we play this game called practicing law, which requires us to say stuff, often with more indignation or conviction than we may feel.  We must, in a word, advocate.

“We have a right to look at those documents,” the Attorney insists.

         Well, maybe.

         “You’re talking about confidential medical records,” I say. “They’re protected.  The victim’s medical records are covered by the psychotherapist-patient privilege.  What she said to her counselor is confidential.”

         “To a point,” the Attorney said. “To a point. But under these circumstances, we are entitled to see at least some of her medical records.”

         By “these circumstances,” he means K’s  conviction for abusing his daughter, beginning when she was about 5 years old and continuing through her early teens when she finally disclosed the abuse to a therapist.  By law, the therapist was required to notify the police, which triggered the criminal investigation that resulted in K’s conviction and incarceration. 

         Now, K’s new lawyer is claiming that the attorney who represented him at trial screwed up by not obtaining or attempting to obtain records from the therapist concerning the daughter’s disclosures.  The Attorney believes these records will show that the daughter was either lying about the abuse or that her memories of abuse are false, implanted by improper questions from the therapist and later the police.

         I find all this pretty outrageous.  

         “That’s pretty outrageous,” I say.  “I mean, K abuses his daughter for more than a decade and now wants to re-victimize her through the legal system?  I don’t think so.”

         Still, I know the Attorney isn’t totally up in the night. Under the federal and state constitutions, K has rights, among them the right to confront his accuser directly and rebut her allegations. 

But defendants aren’t the only ones with rights.  Victims have rights, too.

“You know,” I tell the Attorney, “victims have rights, too.”

“Yes, they do,” the Attorney acknowledges.

Strange as it may seem, victims’ rights are a relatively new innovation.  Not long ago, defense attorneys in rape and sexual assault trials were given free rein probe the victim’s sexual history with the aim of persuading jurors she’s is a slut.  And we all know that sluts can’t be raped.

Things began to change in latter half of the last century.  In “Real Rape”(1987), Professor Susan Estrich of the University of Southern California noted that rape prosecutions, especially in cases where the victim was acquainted with the perpetrator, centered around the element of non-consent.  Estrich pointed out that while non-consent is an element in other crimes—trespass, for instance—the element was different in rape prosecutions because the victim was required to resist. Really resist.  In the words of one court, “[n]ot only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman's power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.” Brown v. State, 127 Wis. 193, 106 N.W. 536, 538 (1906). 

Fortunately, such thinking is no longer the law in most jurisdictions, including Utah.  As the Utah Supreme Court recognized in 2002: “The revelation that women victims of rape have long been mistreated by the law is a relatively recent development. Courts have long held institution-wide distrust of rape victims in cases where they were acquainted with their assailants.”  State v. Blake, 2002 UT 113, ¶ 11, 63 P.3d 56.

Utah, like many states, has enacted statutes and rules designed to safeguard the victims of sexual assaults. Utah also passed a Victims’ Rights Amendment which promised to victims the right “[t]o be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.” Utah Const. art. I, § 28(1)(a). 

“The Victims’ Rights Amendment really isn’t the issue,” the Attorney says.  “The real question is how to balance victims’ rights against the defendant’s trial rights.  And that question is resolved by the rules of evidence.”

Yeah, yeah.  

Rule 506 of the Utah Rules of Evidence cloaks in privilege confidential communications between a patient and her therapist in matters regarding treatment.  Anything you tell your therapist is supposed to stay secret unless you decide to waive the privilege.

 But all rules have exceptions and Rule 506 is no exception. 

“Under Rule 506,”the Attorney continued, “an otherwise privileged communication must be disclosed when the communication is relevant to a witness’ or victim’s physical, mental, or emotional condition when that condition is an element of any claim or defense.  That’s what we’re saying.  The daughter has a condition that’s relevant to K’s defense.”

“Well,” I said, “you’re entitled to make that argument. But, you know, the rule recognizes that privileges will often ‘interfere with establishment of the whole truth.’ The rule explicitly states that privilege ‘reflect good policy choices, fostering candor in important relationships by promising protection of confidential disclosures.’ Without the protections of privilege, victims will be less likely to come forward.”

The Attorney laughed dismissively.  “True,” he said.  “But even child molesters have rights. The 6^th Amendment to the constitutions grants to defendants like K the right ‘to be confronted with the witnesses against him . . .’ You know that.”

The right of confrontation allows defendants to dig up dirt on their accusers to make them look bad.  Ergo: The request for the victim’s medical records.  Evidence that the victim recanted or changed her story during therapy sessions could be used on cross-examination to raise doubts about the victim’s truthfulness.

“I understand why you want these records,” I said.  “You’re thinking that she told one of her therapists that her dad really didn’t abuse her.”

“Well, sure,” said the Attorney. “That would be great.  But we really don’t expect to come up with a smoking gun.  What we’re most interested in is how her story may have changed over time.”

“What difference does that make?”

“Maybe no difference. But if her story has changed, the jury should have known that.”

“Why?”

“Because there is at least a possibility that the addition of certain details are not her actual memories, but rather memories implanted by improper questioning.”

Based on this theory, K’s attorney asked the trial judge to authorize subpoenas for the daughter’s medical records.  I opposed the request, but the judge granted it anyway.  

That wasn’t the end of it. I filed a motion for an extraordinary writ, asking the Utah Supreme Court to stay issuance of the subpoenas and grant an appeal to review whether K’s attorney had met the criteria for subpoenaing the records.  

“The Supreme Court granted the stay,” I reminded the Attorney.  “So I don’t know why we’re arguing about this.  It’s up to the court now.”

The Attorney sighed.  “Yes it is.  I just wanted to see if you had come to your senses and might agree to withdraw your appeal.”

“Sorry,” I said.  “I’ll see you in court.”