Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["Tara Peeples" <>]

Tara Peeples is no longer the Director of Prevention at DeKalb Rape Crisis 
Center.  Your message has been received by the center and DRCC will respond 
to any requests or questions regarding our prevention programs.  If you are 
trying to contact Tara Peeples for other/personal reasons, please send your 
message to her personal email account at 
.
  Thank you.
>From 
>
>  Wed Jan  5 15:21:08 2005
Return-Path: 
<>
X-Original-To: 

Delivered-To: 

Received: from imo-m19.mx.aol.com (imo-m19.mx.aol.com [64.12.137.11])
        by list.mail.Virginia.EDU (Postfix) with ESMTP id 36E1A2D34F2
        for 
<>;
        Wed,  5 Jan 2005 15:21:08 -0500 (EST)
Received: from 

        by imo-m19.mx.aol.com (mail_out_v37_r3.8.) id d.148.3b61c476 (15898)
        for 
<>;
        Wed, 5 Jan 2005 15:21:03 -0500 (EST)
Received: from  aol.com (mow-d18.webmail.aol.com [205.188.139.134]) by
        air-id09.mx.aol.com (v103.7) with ESMTP id 
MAILINID91-3e1a41dc4c2f193; Wed, 05
        Jan 2005 15:21:03 -0500
Date: Wed, 05 Jan 2005 15:21:03 -0500
From: 

To: 

MIME-Version: 1.0
Message-ID: 
<>
X-Mailer: Atlas Mailer 2.0
X-AOL-IP: 24.61.212.64
X-AOL-Language: english
Content-Type: text/plain; charset=iso-8859-1
Content-Transfer-Encoding: 8bit
Subject: case notes and subpoenas
X-BeenThere: 

X-Mailman-Version: 2.1
Precedence: list
List-Id: Discussion List for sexual assault educators and counselors on
        campus. <sapc.list.mail.Virginia.EDU>
List-Unsubscribe: <https://list.mail.Virginia.EDU/mailman/listinfo/sapc>,
        
<mailto:?subject=unsubscribe>
List-Archive: <https://list.mail.Virginia.EDU/mailman/private/sapc>
List-Help: 
<mailto:?subject=help>
List-Subscribe: <https://list.mail.Virginia.EDU/mailman/listinfo/sapc>,
        
<mailto:?subject=subscribe>
X-List-Received-Date: Wed, 05 Jan 2005 20:21:08 -0000

Although university-based counselors have no privilege of confidentiality, 
they could obtain training from a local rape crisis center and become 
"certified" rape crisis counselors which would enable them to assert a rape 
counseling privilege even if they are not trained professional mental health 
caregivers per se.

To properly assert the rape crisis counseling privilege in Massachusetts, the 
counselor would have to be under the direct supervision of a licensed mental 
health professional -- so it would be important to have someone at the 
university with professional qualifications available to supervise the 
nonprofessional counselors.

In other states, different requirements might apply.  The point is, every 
state has a rape crisis counseling privilege statute specifically designed to 
give confidentiality to the nonprofessional counselor/victim relationship.  
Most statutes are flexible enough to apply to crisis counseling even if it 
does not occur at the rape crisis center itself.  For example, Beth Israel 
Hospital in Boston has a rape crisis center because they complied with the 
requirements of the statute even though they are not a rape crisis center in 
the traditional sense.  This liberal view of the definition of "rape crisis 
center" could apply to universities, too.

In any event, irrespective of whether a rape counseling privilege statute 
applies, the best policy approach to record-keeping should include two ideas: 
 1-less is more and 2-no notes of quotes.

maintaining notes that essentially establish the victim sought counseling are 
not problematic per se.  In fact, they can be corroborative in the sense that 
a "real" victim would seek counseling services.

Notes should never include quotes from the victim because direct quotes will 
be seen as "statements", thus will be usable against the victim if at all 
inconsistent with statements the victim made to police or during trial.   If 
notes reflect the processing of ideas and the counselor's thoughts instead of 
quotes from the victim, it is far less likely the notes could be used at 
trial.

Thus, such notes should reflect only the fact that the victim sought 
counseling and the dates of such counseling.  Anything more in terms of 
demographics need not be maintained in the counseling file though it 
shouldn't prevent a university from gathering such data elsewhere.  The point 
here is that the "counseling" file is not necessarily the same as the 
university's data gathering file of statistical information for purposes 
unrelated to the counseling process.

In addition, you need to think about informed consent at the outset of the 
counseling process in terms of telling victims the truth about the limits of 
confidentiality and the limits on notetaking.  In other words, make sure 
victims are not promised absolute confidentiality and assure them that you 
keep no notes of substance.  

You should also have a document destruction policy that allows you to destroy 
notes as soon as the counseling ends.  With a policy in place, you will have 
no trouble informing a criminal court that you have no records.  Remember, 
though, you will want to be able to verify the FACT that a victim sought 
services to protect against the defendant arguing, falsely, that the victim 
is not credible "because she didn't even seek counseling" or that "the victim 
SAID she sought counseling but the university cannot confirm this fact."  

Finally, the law is clear in most states that if counseling records do not 
exist, a judge cannot order a counselor to recreate them.  And, it is highly 
unlikely a defense attorney will send a subpoena to the counselor for their 
live testimony as a substitute for records.  This is because a defense 
attorney will have no idea what the counselor will say and it would be 
foolish to call a counselor to the stand who would likely be positioned to 
say only things that would prove helpful to the victim.

Bottom line, counseling records are almost never admissible as supportive 
evidence to bolster the victim's testimony and they almost never come in as 
evidence against the victim -- but defense attorneys know that even asking 
for the records is intimidating and undermines the effectiveness of the 
victim's therapeutic relationship, which could make it harder for her to 
testify, etc.  Knowing that the real agenda of the defense in most cases in 
seeking disclosure of counseling records is to force the victim to choose 
between justice and privacy, it is terribly important for counseling service 
providers to be aware of this strategic goal and to take all steps to prevent 
"victory by intimidation".  

It is also important to know that most subpoenas sent by defense attorneys in 
criminal cases are illegal and need not be complied with at all.  I typically 
send a letter to defense counsel if they send a subpoena to a rape crisis 
center during the pretrial period that informs them of my intention to bring 
a lawsuit agains them for abuse of process.  Defense attorneys will send 
subpoenas to anyone in the hope the recipient is not knowledgeable re: the 
law and/or will not have the funds to hire an attorney and will, instead, 
take the cheapest and easiest way out by simply sending entire files to the 
defense attorney.

I give my clients a form letter they keep on their computer that they can 
just send to defense counsel when they receive unlawful subpoenas.  This 
letter reminds defense attorneys that there is NO consitutional right to 
"discovery" even of nonprivileged information when the information exists 
exclusively in the custody of a private third-party.

There are a host of other letters I send when subpoenas are sent in 
noncriminal cases -- or for trial purposes in criminal cases.  Simply put, 
there are cheap and effective ways of responding to defense subpoenas in 
criminal cases without ever having to turn over a single document.

Wendy Murphy