"Privacy of Rape Victims Clashes With Trial Rights"

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."

http://www.nytimes.com/2003/01/26/national/26RAPE.html?ex=1044537084&ei=1&en =017d36d379b38a38
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