A Man's Right to a Fair Trial Vs. a Woman's Private File

A rape victim goes to a rape crisis center and speaks with a counselor. Months later, the victim is ready to take her alleged rapist to court. Should the defendant's lawyer have access to notes and reports made by the center's counselor?

The Massachusetts Supreme Judicial Court will consider that question today, hearing arguments in a case that could refine the delicate legal balance between an accuser's right to privacy and the accused's right to a fair trial.

On one side stands the director of a Worcester, Mass., rape crisis center, who is willing to be jailed to keep from handing over any documents about the woman she counseled. On the other is a man accused of rape, who claims that his innocence hinges on information in his accuser's counseling files.

The Massachusetts case is being closely watched by other states grappling with this contentious legal issue. Case law on privacy is only now developing, and the topic of rape - especially acquaintance rape - is a particularly divisive one.

"There's a great deal of movement afoot nationally in the area of counseling records and rape-shield laws," says Marvin Miller of the National Association of Criminal Defense Lawyers in Washington. "Part of the problem is that rape is a legal issue in a social setting with moral overtones. It's a complicated issue for society. There are no simple solutions."

Since the 1980s, with the rise of victim-protection advocacy and a greater awareness of the role of therapy, there has been continuous movement to protect from the court a person's medical history, interviews with social workers and psychologists, and records such as HIV status and foster-care information.

Most of the protections have come from state legislatures and state appellate courts, acting without guidance from the federal courts. The legal community is hoping a US Supreme Court case, which will decide this year whether federal statutes allow for a social worker-patient privilege, will help define the often-conflicting state statutes and rulings.

With the rape trial on hold pending a decision, the Massachusetts court may rule on the rape counselor's obligations within the month. The ruling is expected to resolve Massachusetts's muddled case history concerning the extent of protection afforded to rape records.

In 1985, the state legislature approved an absolute ban on admitting rape records in court. But the following year, the state supreme court struck down the law, saying it was unfair to defendants. In attempting to strike a balance between the victim's and the defendant's interests, the court allowed judges access to such records and instructed them to introduce into court only what was relevant to the trial. In subsequent decisions, a variety of more specific standards emerged, prompting the appellate judge in this case to call for clarification.

Nassrine Farhoody, executive director of the Rape Crisis Center for Central Massachusetts in Worcester, argues that allowing judges to determine what information from a client's file is relevant to the case is, in effect, allowing the entire file to appear in court.

"All post-crime counseling is likely to be relevant. That's why you go to counseling," says Wendy Murphy, Ms. Farhoody's attorney.

Telling a woman who has come in for counseling that what she reveals may appear in court "changes the dynamic between the healer and the victim," Ms. Murphy contends. This concern has led counselors in some rape-counseling centers across the country to stop taking notes and others to shred their existing files.

But defense attorneys say issues of privacy cannot outweigh a defendant's right to a fair trial.

"It's easy to identify with the victim," says Carol Donovan, an attorney at the Committee for Public Counsel Service who has filed a friend-of-the-court brief on behalf of the accused rapist. "But we should think about how it feels to be the wrongly accused at least as much as we think about being the victim, because both scenarios are equally as plausible."