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National Crime Victim Law Institute

Partnering With Co-Amici to Protect Victim Privacy & Recovery

May 05, 2016

This week the NCVLI led an amicus curiae effort that brought together Aequitas: The Prosecutors’ Resource on Violence Against Women; the Battered Women’s Justice Project; the Domestic Violence Legal Empowerment and Appeal Project; the National Center on Domestic Violence, Trauma & Mental Health; the National Immigrant Women’s Advocacy Project; the Victim Rights Law Center; Dr. Giselle Hass; and Dr. TK Logan.  Together this group of experts submitted a brief in support of a victim’s petition for a writ of mandamus before the DC Court of Appeals. 

In the case, Defendant pled guilty to one count of stalking and one count of violating an order of protection and the Victim sought restitution for counseling costs incurred as a result of Defendant’s criminal conduct.  In support of her request, she submitted clear, credible evidence, including facts admitted to by Defendant, a personal affidavit listing reasons therapeutic treatment was necessary, submissions from her therapist regarding the need for treatment to overcome the effects the stalking had on her life, and a billing statement evidencing the specific cost of treatment. The evidence was not rebutted or disproved by Defendant.  This should have been the end of the story.  But it was not.

Instead, Defendant requested, initially ex parte and without notice to Victim’s counsel, the Victim’s mental health records.  Without the legalese – the admitted stalker now sought to examine his victim’s counseling records!

Despite the fact that the request was without legal support, that it was facially insufficient to overcome the myriad of privacy protections afforded victims under the law, and that it would undermine important public policy, the trial court issued the subpoena, reviewed the records, and ordered disclosure to Defendant. 

In the filed brief, amici’s position is that the trial court erred and the ruling, if it stands, creates a dangerous precedent by placing victims who seek restitution for costs for treatment and services involving privileged or confidential communications in the untenable position of possibly sacrificing the very protections that make those services effective: privilege and confidentiality.  Forcing victims to make the Hobson’s choice between asserting their rights of privilege and confidentiality and their right to restitution unreasonably burdens their right to restitution for reasons having no basis in law. Further, the ruling puts the most vulnerable of victims (i.e., those who have been previously victimized and those who have, who may have, or who, as a part of a pattern of abuse, perpetrators allege have pre-existing conditions) in the least protected of positions.  Finally, granting Defendant the ability to further invade the Victim’s private life not only violates the Victim’s rights but in essence aids the continuation of the Defendant’s stalking.  We will keep you posted on the outcome!