United States: Massachusetts Extends Protections For Counseling Records Of Survivors Of Sexual Assault

Massachusetts Extends Protections for Counseling Records of Survivors of Sexual Assault

The Massachusetts Supreme Judicial Court has ruled in In the Matter of a Motion to Compel, SJC-13336 that the Superior Court could not order a Massachusetts counseling center to turn over, at the behest of a Rhode Island court, counseling records of the alleged minor victim of a sexual assault that occurred in Rhode Island, without the court first following to the so-called Lampron-Dwyer protocol.

The Lampron-Dwyer protocol, first set out in Commonwealth v. Dwyer, 448 Mass. 122 (2006) and Commonwealth v. Lampron, 441 Mass. 265, 269-270 (2004), provides a step-by-step process Massachusetts courts must follow when defense counsel in a sexual assault case request access to a victim's counseling records. The Lampron-Dwyer protocol adheres as much as possible to M.G.L. c. 233, §20J, the statutory privilege shielding such records from disclosure, while protecting a defendant's due process rights.

In this case, Foley Hoag LLP submitted an amicus brief on behalf of long-time pro bono clients the Victim Rights Law Center (VRLC) and Jane Doe, Inc. (JDI). The case addressed whether survivors of sexual assault who are resident in Massachusetts and receive mental health counseling related to the assault retain the privacy rights in those counseling records granted to them under Massachusetts law if the assault occurred outside of Massachusetts (in this case, Rhode Island). As amici, VRLC and JDI argued that survivors should not be stripped of certain existing privacy protections simply because the assault occurred in another state. The SJC ultimately agreed, ruling that the well-established Lampron-Dwyer protocol must be followed prior to the disclosure of otherwise-protected counseling records of sexual assault survivors. Practitioners and advocates hailed the decision as a victory for sexual assault survivors who rely on the privacy protections provided in Massachusetts when seeking much needed counseling services.

The Underlying Criminal Case

The appeal arose out of a criminal case in Rhode Island against an alleged perpetrator of sexual assault against a minor. The minor survivor was resident in Massachusetts, but the assault occurred in Rhode Island. The minor sought counseling following the assault from Wayside Youth & Family Support Network, a Massachusetts-based counseling center that provides sexual assault counseling to youths. The defendant sought the survivor's counseling records from Wayside, claiming that he believed the records would support his alibi. He obtained an order from a Rhode Island court under the Uniform Law to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, M.G.L.c. 233, §§ 13A-13D (the Uniform Law), which demanded that Wayside turn over the victim's records.

Under Massachusetts law, counseling records like those sought in this case are generally privileged, under the sexual assault counselor's privilege provided in M.G.L. c. 233, § 20J. The SJC also established stringent non-disclosure protections for such records in the Lampron-Dwyer protocol and related cases.. The Lampron-Dwyer balancing test the SJC developed allows courts to determine when an exception might be made to the general bar for disclosing these confidential records.

The Massachusetts Superior Court judge in this case initially denied the defendant's request for counseling records in light of the §20J privilege, but ultimately issued an order compelling production of the records, citing the SJC's 1993 Matter of a R.I. Grand Jury Subpoena decision, which stated that, under the Uniform Law, the requesting state must make any privilege determinations. The judge also stayed the order and reported the case for appellate guidance.

The Impact for Survivors and their Advocates

The SJC's decision ruling that the Massachusetts judge committed reversible error when he issued the order compelling the production of the survivor's sexual assault counseling records without first considering the § 20J privilege or applying the long-standing Lampron-Dwyer balancing test reinforces the view of the Commonwealth, VRLC, and JDI that sexual assault counseling records are entitled to special privacy protections that few other records are entitled to under Massachusetts law.

Through the protections in § 20J, the Lampron-Dwyer protocol, and related cases, Massachusetts has identified the sexual assault counselor and survivor relationship as one of the few societal relationships entitled to a privilege that should only be pierced in rare and necessary circumstances. The list of relationships entitled to such privileges is small—the priest-penitent privilege is one of the few comparable statutorily established privileges—emphasizing the conscious decision made by the legislature to protect this beneficial relationship. This SJC decision upholds those protections and provides the consistency in application of the law that both survivors and their advocates can rely upon.

The Foley Hoag team representing VRLC, Jane Doe, Inc. and the other amici consisted of Anthony Mirenda, Laura Gradel, and Foley alum Adam Aguirre.

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