Case before Massachusetts high court could determine whether people raped in other states can get help here without their treatment records being disclosed in those states

The Supreme Judicial Court is currently considering whether a Milford rape-counseling center has to turn over treatment records of a girl from Rhode Island to a court in that state hearing the case against her alleged rapist.

The state legislature last year amended a 1937 law on compelling Massachusetts residents to testify in criminal cases in other states by barring its use for people getting "legally protected health care" here, including abortion. But now the state's highest court is considering whether the law also applies to records, in this case those kept by the Wayside Youth and Family Support Network, which is caring for a girl who was under 14 at the time a Rhode Island man was charged with four counts of raping and molesting her.

A Worcester Superior Court judge ruled last year that the counseling center's CEO had to comply with a demand from his lawyer to submit her records to a Rhode Island judge for his private review to determine which, if any, the lawyer could look at.

Massachusetts state law bars the release of such records to defendants or their lawyers except in certain very narrow circumstances, but even then, requires that they first provide some fairly detailed proof of which specific records they want - and that the records still remain secret.

The problem is that Rhode Island has no such requirements. Massachusetts Lawyers Weekly reports Rhode Island is one of six states without such protections.

The Worcester judge said he was satisfied by a promise by a Rhode Island judge to look at the records in camera before deciding whether to let David Florio's lawyer get a peek - and that, in any case, Rhode Island is the proper place for such considerations because the criminal case is there. He cited a case involving a Massachusetts resident ordered to testify on a tax matter there.

Wayside, however, appealed, arguing that the girl should not be subjected to scrutiny of her Massachusetts treatment records just because her alleged attacker is charged in Rhode Island, in part because, unlike in the tax case, the legislature created an "absolute privilege" against any release of sexual-assault treatment records, except in rare cases. Also, it argues, David Florio, 54, did not submit an affidavit and motion explaining the need for his lawyer to look at specific records, as required under Massachusetts law.

2/2/69 [T]here is no Rhode Island statute or other confidentiality protections for sexual assault counseling records (much less an absolute privilege as applies in Massachusetts). The net result of sending those records to the Rhode Island court for review, prior to the application of the Dwyer/Lampron [strict requirements for document review] procedure in Massachusetts, would be a wholesale abrogation of the absolute Massachusetts privilege. This, in essence, would mean that a Massachusetts citizen receiving sexual assault counseling in Massachusetts, who is otherwise entitled to the protections of the Massachusetts sexual assault counseling privilege and the Dwyer/Lampron protocol, would be deprived of those protections simply because she was sexually assaulted in Rhode Island.

Wayside continued that the Worcester judge concluded there would be no "undue hardship" on making it submit the documents to a Rhode Island judge for review - one of the requirements of the law on compelling residents to testify in cases in other states, but that is incorrect, not because the potential that Wayside could be found in contempt by a Rhode Island judge if it refused to turn over the records is not a legal "hardship" but because of the very nature of what the center is being asked to do:

[T]he Trial Court ignored that Wayside also asserted that being forced to produce the Victim's sensitive sexual assault counseling records in Rhode Island would have a detrimental effect on both the minor Victim and on the therapeutic relationship between Wayside's sexual assault counselor and the Victim. ...

Here, per the charging statute, the Victim was under 14 when assaulted. However, the Reported Decision then disregarded that harm to the minor Victim here, inexplicably asserting that the "...compelled attendance of [Wayside] in the Rhode Island proceeding does not raise any of these concerns."

That latter holding was completely erroneous. Both the SJC and the Trial Court have recognized that Wayside has a legal obligation to protect the minor Victim's privilege against disclosure of her counseling records, and that extreme detriment would result to the therapeutic relationship between sexual assault victims and their counselors from such disclosure. Therefore, the burden that would be experienced by Wayside and the Victim from forcing Wayside to respond to the RI subpoena and disclose the Victim's records is co-extensive. In addition, forcing Wayside to disclose the Victim's records here would undoubtedly have a chilling effect well beyond its relationship with the Victim, since it would signal to other sexual assault victims that the records of their confidential communications might also be insecure.

Case docket, includes Wayside's complete brief, amicus briefs and video of oral arguments.