Com. v. Fuller

• Decision Date: 17 July 1996
• Citation: 667 N.E.2d 847,423 Mass. 216
• Parties: COMMONWEALTH v. David FULLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 847

667 N.E.2d 847

423 Mass. 216

COMMONWEALTH v. David FULLER.

Supreme Judicial Court of Massachusetts,

Worcester.

Submitted May 7, 1996.

Decided July 17, 1996.

Michael M. Monopoli (Mark Monopoli with him), Worcester, for David Fuller.

Wendy J. Murphy, Boston, for Rape Crisis Center of Central Massachusetts.

The following submitted briefs for amici curiae.

Scott Harshbarger, Attorney General, Elisabeth J. Medvedow and Pamela L. Hunt, Assistant Attorneys General, Boston, for Governor & others.

Susan M. Basham, Boston, and Fernando R. Laguarda, Washington, DC, for National Network to End Domestic Violence & others.

S. Stephen Rosenfeld and Amy D. Porter, Boston, for Coalition for Patient Rights of New England.

James T. Hilliard and Jason R. Talerman, Walpole, for Massachusetts Psychiatric Society.

Carol A. Donovan, Boston, John F. Palmer and Abbe Smith for Committee for Public Counsel Services & others.

James C. Geoly and Kevin R. Gustafon, Chicago, Illinois, and Carolyn I. Polowy, Washington, D.C., for National Association of Social Workers & another.

John J. Conte, District Attorney, Worcester, and Christopher P. Hodgens, Assistant District Attorney, for the Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR, GREANEY and FRIED, JJ.

GREANEY, Justice.

A judge in the Superior Court found the executive director of the Rape Crisis Center of Central Massachusetts, Inc. (center), in contempt for failure to turn over to the court for in camera inspection the rape counselling records of Jane Doe. Doe is the complainant in this case in which the defendant, David Fuller, has been charged with two indictments of rape, in violation of G.L. c. 265, § 22(b) (1994 ed.); one indictment charging indecent exposure, in violation of G.L. c. 272, § 53 (1994 ed.); and one indictment charging lewd and lascivious behavior, also in violation of G.L. c. 272, § 53. In connection with the preparation of his defense, the defendant sought production of Doe's counselling records from the center. The center refused production on the basis that the records were absolutely privileged under G.L. c. 233, § 20J (1994 ed.), the statute protecting from disclosure the records of a victim's counselling sessions with a sexual assault counsellor. A single justice of the Appeals Court stayed the judgment of contempt pending appeal by the center, and we transferred the case to this court on our own motion. Although the judge sought to follow and apply the procedures set forth in Commonwealth v. Bishop, 416 Mass. 169, 181-183, 617 N.E.2d 990 (1993), we conclude that the order calling for the production of Doe's records was erroneously entered, and we vacate the judgment of contempt. As a general matter, we continue to adhere to the procedure set forth in the Bishop decision for the handling of motions seeking in camera judicial examinations of privileged records. In reliance on our statement in Bishop, that a judge should take into account the nature of the privilege claimed, we take this opportunity to modify the procedure to be followed in the consideration of such motions and the standard which a defendant must meet when a motion seeks access to a complainant's rape counselling records. As will be discussed, we shall include in the standard the requirement of materiality as established in our cases.

1. The testimony at the probable cause hearing on the charges may be summarized as follows. On July 11, 1995, the defendant and Doe met in a bar in Grafton. Doe agreed to accompany the defendant in his automobile for a drink at another establishment. Instead of driving to the other establishment, the defendant pulled into the parking lot of the North Grafton post office. There, the defendant made sexually explicit comments which the complainant viewed as threatening. In the next fifteen minutes, the complainant alleges, the defendant forced her to engage in oral sex and attempted to urinate into her mouth. When, in response to a telephone call made by a neighbor, Officer Wayne Tripp and other officers arrived at the scene, the defendant was standing outside of the automobile with his genitals exposed. The defendant claimed that he had stopped to urinate, a claim that was at first supported by the complainant. Officer Tripp, who was known to the complainant, observed that she was upset. He asked if she would like to speak to a female officer. She answered in the affirmative, and, at the police station, gave a statement generally similar to her probable cause testimony. The defendant maintains that any sexual contact between himself and the complainant was consensual.

Through a pretrial agreement, the prosecution disclosed to the defendant that Doe had sought counselling from the center following the incident, and also that she had received similar counselling in 1991 and 1992, after a sexual assault in 1991 involving a different perpetrator. In response to a motion filed by the defendant, which had not been served on the center, a judge in the Superior Court ordered the center to produce all records of Doe's counselling in its possession, in a sealed envelope with an attached letter asserting any privileges which the center claimed. The center's executive director declined to produce the records, and advised the judge that the records were absolutely privileged under G.L. c. 233, § 20J, ¹ and that Doe declined to waive her privilege.

The defendant filed another motion seeking access to the records, asserting, in an affidavit filed by counsel, that "[t]here is a likelihood of exculpatory evidence in the counseling records since [Doe] was allegedly raped in 1991 and puts herself in a similar situation in 1995." In a second affidavit filed in connection with the motion, counsel asserted that "[c]onsent is at issue in the present case," and that the "facts of the present case are very similar to those involved in an incident occurring in 1991." Both affidavits indicated that the defendant's counsel had spoken with "at least two independent witnesses who state that when [Doe] drinks she frequently leaves the premises with men [whom] she has just met in a bar." In connection with a hearing on the motion, the defendant's counsel filed a third affidavit in which he stated that "[t]he alleged victim expressed feelings of embarrassment over being discovered in the parking lot with [the defendant] by [Officer] Tripp at the probable cause hearing." ² On that basis, defense counsel asserted that "[s]uch embarrassment may have provided [Doe] with a motive to lie," and, as a result, "[t]here is a probability that evidence which is relevant to the issue will appear in the counseling records of [Doe]."

The prosecutor opposed the defendant's motion for the production of Doe's counselling records on the ground that the 1991 sexual assault was "wholly irrelevant," particularly because the perpetrator involved in that incident had entered guilty pleas to all charges, and had been incarcerated. The prosecution also argued with respect to all the records that the defendant had not made an adequate showing to support his assertion that the privilege conferred by § 20J should be pierced.

In a written memorandum of decision, the judge ordered the center to produce a complete copy of its records concerning Doe from 1991 through the present. The judge stated that the records might show that Doe "may have been too embarrassed to tell [Officer] Tripp that she [had] consented to oral sex with the defendant," and that the records of counselling related to the 1991 incident "may be relevant to show [Doe's] propensity to lie." The judge concluded that "the defendant has shown a legitimate need for access to the records regarding [Doe's] unreliability as a witness" and that, based on the Bishop case, an in camera review of the records was appropriate. The center's executive director refused to comply with the production order. The judgment holding her in contempt, and this appeal, followed.

2. The center argues that the absolute privilege conferred by § 20J is based on a constitutionally protected privacy interest "in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). ³ Reasoning from this basis, the center goes on to argue that this court "must provide greater protection against disclosure of [constitutionally protected therapeutic counselling] information than [is provided] for the marital communication disqualification, the attorney/client privilege, [the] surveillance location privilege and [the] informant privilege which are derived only from the common law." The center argues, first, that disclosure of such records should be foreclosed in all circumstances. In the alternative, the center calls for a "strict scrutiny analysis" which would require a defendant credibly to demonstrate that (1) the witness whose privileged material is at stake has undertaken intentionally to distort the truth-finding process, and (2) the defendant has a compelling need for access to particular information.

Victims of rape are encouraged by sexual assault counsellors to explore their personal feelings and perceptions about a form of physical violation which, by its nature, is unusually traumatic to a victim's psyche. See, e.g., Note, The Constitutionality of an Absolute Privilege for Rape Crisis Counseling: A Criminal Defendant's Sixth Amendment Rights Versus A Rape Victim's Right to Confidential Therapeutic Counseling, 30 B.C.L.Rev. 411, 421-428 (1989). Cf. Jaffee v. Redmond, --- U.S. ----, ----, 116 S.Ct. 1923, 1928, 135 L.Ed.2d 337 (1996) (noting need for full disclosure in psychotherapy, and observing that "disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace"). We may reasonably assume that the Legislature's choice to afford in § 20J an absolute privilege for records of such counselling reflects, among other considerations,...