Legal Update 2002
Sexual Harassment Cases Leveling Off
The steady rise in the number of sexual harassment cases reported during the mid-1990s appears to have leveled off. Figures from the Equal Employment Opportunity Commission show that the number of cases filed reached a peak of 15,889 in 1997 and then leveled off at 15,836 in 2000. The leveling off of cases may be due to companies taking a more active role in educating their workers on this issue.
Unsupported expert testimony inadmissible
The Texas Court of Appeals reversed the termination of a couple's parental rights to their three children after faulting the trial court for its blind reliance on the expert's testimony without adequate explanation of the methods used to arrive at the conclusions drawn.
Child Protective Services sought to terminate the Marshall and Rose Keys rights to their three minor children after finding the father to be a sexual deviant who posed a risk to his children. The Keyses had previously lost and regained custody in the wake of physical abuse suffered by CDK and physical neglect of the other two children. In addition, Marshall Keys had been convicted in 1977 for the sexual assault of a child.
In court CPS produced the testimony of Richard Mack, an expert in sex offenders and abuse. Mack told the trial court that Marshall Keys had been subjected to the Abel Assessment and that the results of that test indicated that Marshall "has a problem with deviant sexual interest," and was a danger to his children.
The appeals court concluded that Mack's testimony was instrumental in swaying the jury to terminate the couple's parental rights. The court was troubled by the fact that Mack was never asked how the raw data gathered in the assessment is processed. The appeals court said that a proponent of expert evidence must prove that the specific technique or methodology from which the expert derives his opinions has been subjected to testing to assess its legitimacy. Without requiring Mack to explain the methods and analyses girding the assessments results, "[f]or all we know their components could be mathematically based, founded on indisputable empirical research, or simply the magic of young Harry Potter's mixing potions at the Hogwarts School of Witchcraft and Wizardry." The panel ordered the matter remanded for further proceedings.
Teen files state bar complaint against court appointed lawyer
In what may be the first case of its kind, 18-year-old college honor student, Alanna Krause, filed a complaint with the California State Bar against attorney Sandra M. Acevedo, the lawyer appointed by then Marin Family Court to represent her best interests during her parents' divorce.
In 1994, Ms. Acevedo was appointed by Commissioner Sylvia K. Shapiro-Pritchard to represent Alanna's "best interests" in Marin County California Superior Court case FL 4889 " the divorce/custody case of her parents, Marshall W. Krause v. Lauren Krause . Alanna, who claims that her father was abusing her, wanted to live with her mother. Instead of representing her best interests, Alanna alleges that Ms. Acevedo knowingly and willfully colluded with her father, a nationally renowned attorney and past president of the Marin Bar Association, and his girlfriend, Lana Clark, to cover up Mr. Krause's child abuse of her.
Throughout Family Court FL 4889 proceedings, Alanna (who was not allowed to address the court) repeatedly told Ms. Acevedo about her father's mistreatment of her and asked her directly to make these facts known to the court. Alanna claims that Acevedo ignored medical records of Alanna's injuries and acted to keep the truth and the issue out of court. Alanna claims that Ms. Acevedo perjured herself in declarations to the court and threatened her mother and her when they tried to bring the truth to the court's attention themselves. According to the complaint, Acevedo repeatedly attempted to convince Alanna to stop trying to communicate her father's abuse to the court.
In September, 1997, at the age of thirteen, Alanna ran away from her father to Los Angeles where she sought help from the Los Angeles Juvenile Court. After several months of investigation, on January 12, 1998, the LA Department of Child and Family Services Investigation Report was adopted by Los Angeles Juvenile Court and the charges that Mr. Krause was a current and future danger to Alanna were sustained. In August 1999 she was placed in the full custody of her mother.
If Ms. Acevedo had done her job, Alanna alleges, the abuse would have been investigated and she might not have been placed in her father's full custody where she suffered years of further abuse.
Social Workers do not have Qualified Immunity for Placing Children in Abusive Foster Home
While they were children, the Plaintiffs allege that six social workers from the Missouri Division of Family Services ("DFS") improperly removed from their mother's care and placed in an abusive foster home with a known sex offender and murder. The Plaintiffs were removed from their mother's care, apparently without a hearing, after she left them with a friend while looking for a place to live. DFS then placed them in a home with a man who had been convicted of numerous felonies, including sexual assault, rape, and murder. While in his home, the four children allege that they were severely abused and neglected. They allege no supervision was performed during the placement despite numerous specific complaints, and they were not removed from the placement for months despite knowledge of their foster father's violent criminal history.
The Defendants, six social workers from the Missouri Division of Family Services ("DFS"), argued that they should be immune from liability as at the time of the placement in 1985, the law was not clearly established that state caseworkers had a duty to protect these children. The Appeals Court refused to dismiss the claim, noting that the purpose of qualified immunity is to ensure the government is not so overwhelmed by trivial claims of negligence that it is unable to function. According to the court, this case is the classic case where immunity "should not and does not apply." The Court noted that the Plaintiffs' allegations, if proven, could demonstrate that the social workers showed grossly deliberate indifference to the Plaintiffs' welfare and that DFS "transgresse[d] the substantive limits on state action set by the Eighth Amendment and the Due Process Clause."
Mother who hid her girls from sex offender father is found guilty of kidnapping
A mother was found guilty of kidnapping after refusing to comply with a court order which required her to turn them over to their father, a convicted child molester. Manuel Saavedra, 44, pleaded guilty in 1992 to lewd conduct with his 13-year-old niece. After completing a sex offender's program, a counselor deemed he was no risk to children if he did not drink alcohol and Saavedra was granted visits with his children. The children's mother, Debra Schmidt, protested that those visits were not well-supervised. She and the children moved to Texas in 1997. After years of legal battling, in 1999, Saavedra won custody of the children through a California court.
Schmidt refused to return to California and give him the children. She spent more than three weeks in Travis County Jail in Texas before bringing the girls to Travis County District Judge Jeanne Meurer. Meurer later awarded Schmidt full custody of the children - despite the California order. Texas Gov. Rick Perry refused to extradite Schmidt to California . However, he approved the extradition after the state of California filed a lawsuit in federal court and forced him to do so.
A California jury, who were not allowed to hear about Saavedra's history of sexual abuse and domestic violence, found Schmidt guilty of kidnapping her children. She was sentenced to a year in jail and five years probation. Schmidt was also ordered to pay $44,000 in restitution and attorney's fees to Saavedra and to turn over her children who are currently in the care of friends in Texas .
Saavedra, who had been ordered deported to Chile for his sex offense, recently won his appeal with the Immigration and Naturalization Service and can remain in the United States . He has applied for a pardon with California Gov. Gray Davis. Saavedra has also appealed Meurer's custody decision with the 3 rd Court of Appeals in Austin .
Nurses' testimony limited in rape cases
The Virginia Supreme Court ruled that nurses who examine alleged rape victims may testify in court but cannot offer their opinion that a victim's injuries were caused by sexual assault. The decision simultaneously upheld the status of specially trained nurses working in Sexual Assault Nurse Examiner (SANE) programs and narrowed the scope of what they can say on the witness stand.
As part of the ruling, the Court ordered a new trial for Eduardo V. Velazquez who was found guilty of assaulting a 15-year-old girl. During the trial, the prosecution introduced testimony by the certified sexual assault nurse examiner who had physically examined the teenager. The nurse testified that injuries she observed were "consistent with non-consensual intercourse."
On appeal, Velazquez's attorney argued that Patt should not have been permitted to testify at all as an expert in diagnosing sexual abuse because she is not a licensed physician. The court, however, said a SANE nurse with training and experience is qualified to reach an opinion and testify as an expert. But the court agreed with Connell's contention that the witness had overstepped her bounds by concluding that the girl's injuries were caused by sexual assault.
Drawing the distinction, the Court said it is permissible testimony that a victim's injury was inconsistent with consensual sex, but to take it a step further and determine that an injury was consistent with non-consensual intercourse "improperly invaded the province of the jury." Connell said a witness who attributes an injury to non-consensual sex effectively closes the door to the defense arguing the injury may have been caused by other factors, including disease and hygiene.
Court sets limits for sex offenders
The Supreme Court narrowed the authority of states to indefinitely confine dangerous sex offenders by requiring proof that an offender has a mental illness that causes serious difficulty with self control. In a 7-2 decision, the Court ruled that rapists, child molesters and other sex criminals cannot be confined indefinitely beyond their prison terms unless they suffer from mental abnormalities making them likely to commit similar crimes in the future along with "proof of serious difficulty in controlling behavior."
The Court rejected an argument by the state of Kansas , supported by nine other states, that sex offenders could be placed in indefinite confinement without any proof at all that they lacked control of their behavior. Those states had argued that many violent sex offenders have some ability to control their sexual abuse, but choose not to do so.
Justice Stephen G. Breyer, who wrote the decision, said some proof of an inability to control one's violent impulses is necessary to distinguish between a sexual offender whose disorder justifies confinement, and a typical repeat offender convicted in an ordinary case.
Justice Antonin Scalia, joined by Justice Clarence Thomas in dissent, said the vague formula the majority had adopted "gives trial courts not a clue as to how they are supposed to charge the jury" on what they must find in order to commit a violent sex offender for an indefinite period.
Boundary between Physical and Mental Illnesses Erodes
U.S. District Court Judge Harold H. Kennedy ruled on that Fannie Mae and Unum Life Insurance Company of America (Unum) improperly classified an employee's bipolar disorder (manic depression) as a mental rather than physical illness, which resulted in her being denied full insurance benefits.
Jane Fitts began to work as an attorney for Fannie Mae in 1982. In 1995, she was diagnosed with bipolar disorder and was unable to continue working. The benefit plan that Fannie Mae offers to its workers includes a long-term disability insurance policy that covers physically disabled employees until they reach age sixty-five. If the disability is due to mental illness, the employee's benefits are discontinued after twenty-four months. Fitts challenged the policy after being informed that she would receive disability payments for only twenty-four months.
The central question in the case was whether bipolar disorder is a mental illness. UNUM argued it is a mental illness and sought to have Fitts' case dismissed. Fitts argued that bipolar disorder is not a mental illness as defined in the policy and that the policy's definition of mental illness is ambiguous. Fitts introduced scans of her brain showing abnormal atrophy or brain wave activity on the left and right sides of her brain. She also provided declarations from two experts. One declared that bipolar disorder is a physical illness because it is a neurobiological disorder that affects the physical and chemical structure of the brain. The other provided a declaration that the illness is linked to changes in blood flow to the brain similar to changes exhibited in Alzheimer's disease and heart disease.
Judge Kennedy allowed Fitt's case against UNUM to proceed, observing that advances in science make public perceptions of mental illness an evolving concept. Kennedy noted that "courts are split over whether ailments like bipolar disorder fall within the definition of mental illness contained in employee benefits plans."
Unlimited Forced Drugging Of Untried Suspects Upheld by Court
Dr. Charles Sell, a dentist, has been held without trial for the last 5 years. He was arrested for health care fraud. While out on bond, he was charged with conspiracy to commit murder after plotting to kill one of the witnesses against him and two FBI agents who investigated him. His bond was revoked and Sell's attorney asked for a psychiatric evaluation. Sell was diagnosed with delusional disorder and the judge ordered him hospitalized. His psychiatrist felt that he would benefit from anti-psychotic medication, which Sell refused.
In 1999, an administrative hearing was held and two psychiatrists testified that anti-psychotic medication was the only way Sell could be restored to competency. Sell requested a review of the ruling by the District Court. In 2000, a United States Magistrate Judge conducted a full judicial hearing. The magistrate entered an order finding that Sell posed a danger to himself and others and authorized the government to forcibly medicate Sell. In April 2001, the District Court reversed the magistrate's finding that Sell posed a danger to himself and others, noting that the evidence in the record was insufficient to support such a finding. Despite this reversal, the judge ruled that the Government's interest in restoring Sell to competency so that he can stand trial was alone sufficient to warrant forcible medication.
Sell appealed the ruling that he could be forcibly injected with antipsychotic drugs for the sole purpose of restoring his competency to stand trial. Upon review, the appellate court agreed that the evidence does not support a finding that Sell posed a danger to himself or others. They ruled however, that forcible administration of antipsychotic medication are likely to help restore Sell's competence and should not interfere with his right to a fair trial.
Federal Court Clarifies Use of Evidence of Past Acts
In the suit, Betsy Sue Johnson claimed that her guidance counselor, Wayne Stevens, sexually harassed and abused her from 1991 to 1993 while she was a high school student in the Elk Lake School District in northeastern Pennsylvania . At trial, Johnson's lawyer wanted to present the testimony of a former co-worker of Stevens', regarding a bizarre incident in which Stevens is alleged to have picked her up off the floor in another teacher's office and, in the course of doing so, touched her in the crotch. The U.S. District Judge McClure barred the evidence, and the jury later exonerated Stevens. In the appeal, Johnson argued that the evidence of the prior alleged incident should have been admitted under Rule 415. Adopted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, rule 415 establishes exceptions to the general prohibition against admitting evidence of prior acts in cases involving sexual assault and child molestation.
The Federal Appeals Court upheld the lower court decision noting noted that despite strong language in the new rules that seems to favor admissibility, trial judges still have the power to determine whether the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The Court found that the presumption of admissibility should apply only when the prior act can be proven with specificity and is similar to the type of sexual assault at issue in the suit.
"Where the past act is not substantially similar to the act for which the defendant is being tried, and/or where the past act cannot be demonstrated with sufficient specificity, the propensity inference provided by the past act is weaker, and no presumption in favor of admissibility is warranted." Under that test, the Court ruled that Johnson was properly barred from introducing the alleged incident between Stevens and his co-worker. The alleged incident with the co-worker occurred in another teacher's office with that teacher present, while the alleged incidents with Johnson allegedly took place with no one else present in Stevens' office, and involved a minor. The Court ruled, "In our view, these dissimilarities reduced significantly the probative value of [the co-worker's] testimony."
Court Refuses to Hear Victims' Rights Case
The Supreme Court was asked to review a Virginia case where an elementary teacher was convicted of sexually abusing former students. Jackson Baynard claimed he was abused by the teacher starting in 1990 when he was a sixth-grader. That same year, another victim told the principal that the teacher had molested him 15 years earlier.
The teacher was convicted and Baynard sued both the principle and the school system for failing to protect her. Jurors found that the board and principal were "deliberately indifferent" to signs that one of their teachers was a child molester. They ordered the Alexandria School Board to pay Baynard $700,000, and the principal to pay him $350,000. Upon appeal, the verdict against the principle was upheld, but the verdict against the school board was overturned. Baynard appealed to the Supreme Court. The Court refused, without comment, to consider whether the school district should compensate abuse victims.
Failure to Jail Rapist Violated the Victim's Rights
A case brought by a victim whose rapist once convicted and sentenced has avoided jail time could open the door to giving victims more of an official voice in criminal proceedings. In a potentially precedent-setting case for victims' rights, the lawyer for rape victim Debra Hagen asked the Supreme Judicial Court to reverse the stay of execution of James J. Kelly's prison sentence. Massachusetts ' highest court agreed that a 14-year lapse in sending a convicted rapist to prison was "extraordinary"` and suggested the victim may have been wronged by not having a say in imposing the sentence.
James J. Kelly, 73, of Leominster , was sentenced in 1988 after he was convicted of raping Debra Hagen, then 27. Hagen has said Kelly drove her to a plot in a Leominster cemetery and raped her in 1985. Kelly's 10-year sentence has been postponed while he fought various appeals and claimed numerous health problems. Kelly has argued that the lawyer in his original trial erred by letting him take the stand and get caught in a lie by telling jurors he never had sex with Hagen . Kelly told his arresting officer he had consensual sex with Hagen .
The Worcester Assistant District Attorney argued that Hagen had no standing under the state's Victim Bill of Rights to ask prosecutors to enforce his prison sentence and only had a "right to be kept apprised" of the proceedings. Wendy Murphy, Hagen 's lawyer, said the case goes to the heart of what kind of remedies victims can seek if they feel the state has not done enough to make sure someone convicted of a crime is punished. She argued that if victims are not given a voice in the justice system, then cases like this can simply fall off the radar screen and victims can do nothing about it.
Chief Justice Margaret Marshall agreed, suggesting the time lapse in the case violated the rights lawmakers gave to crime victims. "The Legislature was clearly giving victims rights and standing with respect to prompt disposition," she said. The court took the appeal under advisement.
Delayed Discovery Exception Applies in Child Sexual Abuse Cases
The Plaintiff was sexually abused by a relative between the ages of 10 and 17. She claims that did not realize that the relationship was abusive until she was an adult. At age 30, she sued the relative for damages resulting from the sexual abuse. The Defendant's filed a motion for a directed verdict in his favor because the Plaintiff failed to file within the three-year statute of limitations. The motion was denied, and a jury subsequently awarded the Plaintiff damages.
The Defendant appealed saying that the district court erred in allowing the case to go forward. The Oregon Court of Appeals upheld the trial court's denial of Defendant's motion. The Court explained that although aware of the abuse in her past, the Plaintiff had a distorted perception of the nature of her relationship with the Defendant which prevented her from realizing the effects the abuse had on her present psychological problems.
Federal appeals court overturns decision to return girl to Sweden
Kristina McLarey and Iraj Danaipour, an Iranian national, met in Sweden . Shortly after having their first daughter in 1994, they were married in Massachusetts and they had their second daughter in 1998. They moved back to Sweden and filed for divorce in 2000. In June 2001, McLarey brought her two daughters, ages 3 and 7, from their home in Sweden to Massachusetts in violation of a Swedish court order. McLarey said she was protecting the girls from their father, after the youngest girl reported that he abused her. Danaipour denies the abuse allegations and has been fighting to have his daughters returned to Sweden .
In January, a U.S. District Court judge in ruled that even though there was reason to believe Danaipour had sexually abused his 3-year-old daughter, McLarey must return her two daughters to Sweden where Swedish courts should decide whether the abuse had occurred and, if so, what steps should be taken to protect the girls. His ruling was based on the Hague Convention on Civil Aspects of International Child Abduction which governs international custody disputes. The Hague Convention emphasizes sending children back to the country where the divorce or custody proceedings began and prevents parents from taking children abroad unless they face "a grave risk of physical or psychological harm." The District judge did not feel that the sexual abuse constituted grave harm.
McClary appealed the decision. The Appeals Court remanded the case back to U.S. District Court, ruling that the lower court must determine whether the girl was sexually abused before deciding the custody issue. In doing so, the Appellate Court noted that evidence in the case raises a "clear and substantial claim" of sexual abuse, and that sexual abuse can cause long-term harmful effects.
U.S. Supreme Court Strikes Down Child Porn Ban
The Supreme Court ruled that the computer-generated imagery of "virtual" children engaged in sexual activity are a protected art form. In striking down two provisions of the Child Pornography Protection Act of 1996, the court found that the law was unconstitutionally overbroad, saying it sought to censor a wide universe of speech that was neither obscene nor child-pornographic.
The Supreme Court has permitted the government to enact an outright ban on all pornography involving real children, in large part because it victimizes the children who are its subjects. The Child Pornography Protection Act of 1996 expanded the existing bans by also outlawing computer alteration of innocent images of real children, or the creation from scratch of simulated children, to make them appear to be engaging in sexual acts. Many of these images are indistinguishable from photographs of real children. Congress justified the wider ban on grounds that while no real children were harmed in creating the material, real children could be harmed by feeding the prurient appetites of pedophiles or child molesters.
The Free Speech Coalition, the pornographers' trade group, challenged the law saying that while it opposes child pornography, the law could snare legitimate films and photos produced by its members. The Supreme Court agreed because the government could not show a connection between computer-generated child pornography and the exploitation of actual children. In a dissent, Chief Justice William Rehnquist noted that court's decision will make it harder for law-enforcement officials to protect children from child pornographers and pedophiles.
Defendant's Suit against Prosecution's Experts Not Frivolous
According to Virginia 's high court, only witnesses on facts have absolute immunity for their testimony in court.
Former nurse Marybeth Davis is serving a life sentence for murdering her daughter with caffeine-laden diet pills and injuring her son with insulin. In the criminal case, the state theorized that Davis suffered from "Munchausen Syndrome by Proxy", a condition where parents harm their children for attention. Defense experts disagreed testifying that her children suffered from genetic diseases. On September 15, 1999, Davis sued the prosecution's experts alleging that the doctors, as expert witnesses for the State, had negligently performed tests, negligently prepared for testimony, negligently testified, and otherwise failed to meet the "standards of science and medicine as it existed at that time. In response to the lawsuit, the doctors filed motions to dismiss for failure to state a claim upon which relief could be granted. The Circuit Court of Greenbrier County granted the motion to dismiss, finding that none of the causes of action stated against the doctors were viable under existing state law. The doctors then filed motions for sanctions against Davis and her counsel which the circuit court granted.
Davis appealed the sanctions to the West Virginia Supreme Court. It dismissed the sanctions finding that her claim was not frivolous. The Supreme Court noted that West Virginia law is not settled in the area of expert witness immunity and that rulings of other jurisdictions have held that expert witnesses may be held liable in some circumstances for their negligence preparation of evidence or opinions offered in court. They held that such rulings along with various scholarly works on the subject of witness immunity demonstrate a good faith argument for extension of the law of witness immunity in West Virginia .
Court Allows Testimony Regarding Repressed Memory
The 4th Circuit Appeals Court of Louisiana upheld the admissibility of a psychologist's testimony on in a case involving sexual abuse by a priest in the 1970s. The psychologist, Dr. Edward Shwery (the victim's treatment provider), testified that the memories of the victim were valid and that the 17 year delay in the filing of the lawsuit was due to "dissociative amnesia or repressed memory."
The defense challenged the reliability of the general methodology along with the application of the methodology behind Dr. Shwery's treatment of and opinions regarding the victim. However, the 4th Circuit held that it is improper to utilize Daubert's screening criteria when the issue is whether the conclusion reached by applying certain methodology is reliable. The court explained that Daubert should be used only when the reliability of the methodology itself is questionable.
As for the reliability of the underlying methodology regarding dissociative amnesia, the court noted that there is no "standardized methodology" by which patients with repressed memories should be diagnosed. The court added that Shwery's testimony and evaluation of the victim was sufficiently reliable and relevant because it was based on Shwery's own clinical experience, research, and understanding of amnesia and diagnostic manuals.
The court wrote, "Our reading of the record reveals that Dr. Shwery's methodology and opinions are in conformity with the science of repressed memory. We therefore find that his opinions regarding repressed memory are reliable and relevant. It is up to the jury to make credibility determinations about Dr. Shwery, his methodology and opinions, the existence of repressed memory, and whether or not Doe suffers from the condition."
New Study: "Patient Complaints and Malpractice Risk"
According to a new study of malpractice risks, "Risk seems not to be predicted by patient characteristics, illness complexity, or even physicians' technical skills. Instead, risk appears related to patients' dissatisfaction with their physicians' ability to establish rapport, provide access, administer care and treatment consistent with expectations, and communicate effectively." Patients who saw physicians with the highest numbers of lawsuits were more likely to complain that their physicians would not listen or return telephone calls, were rude, and did not show respect." Physicians without malpractice claims offered patients more orienting and facilitating comments, as well as used more humor than colleagues with malpractice claims.
Michigan 's Sex Offender Registry Held Unconstitutional
A federal court judge has ruled that Michigan 's sex offender registry is unconstitutional, saying it lacks a way for people to challenge the government's claim that they are a danger to society and thus violates the 14 th Amendment, which guarantees the right to due process. Michigan shut down its Internet sex offender registry in response to the ruling, but plans to appeal the decision.
Michigan established the registry in 1994 and made it available to the public on the Internet in 1999. The ruling came in a lawsuit filed by former state corrections officer Daniel Fullmer, convicted of having sex with a female inmate in 1999 and sentenced to two years probation. Fullmer said he decided to sue after a neighbor spotted his name on the Internet, and then asked Fullmer's wife if he was a child molester.
Court Rules Against Grandparents
The Illinois Supreme Court ruled that parents have full control over how much time grandparents can spend with grandchildren, and held that courts have no business questioning a parent's decisions unless a child's health or safety is in danger. The case involved Clifford and Roberta Schweigert who filed a petition seeking visitation with their granddaughter, the daughter of the Schweigerts' late son. There petition was opposed by the girl's mother.
States can Limit Privileges of Sex Offenders Who Won't Admit to Crimes
The Supreme Court ruled that states can limit privileges of sex offenders who won't admit to crimes as part of therapy.
Robert Lile is in prison for raping a young woman (he maintains the sex was consensual). A few years before his scheduled release, prison officials ordered Lile to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an Admission of Responsibility form, in which they accept responsibility for the crimes for which they have been sentenced, and complete a sexual history form detailing all prior sexual activities, regardless of whether the activities constitute uncharged criminal offenses. The information obtained from SATP participants is not privileged, and could be used against them in future criminal proceedings. However, there is no evidence that this has ever happened. Officials informed respondent that if he refused to participate in the SATP, his prison privileges would be reduced, resulting in the automatic curtailment privileges such as visitation rights, work opportunities, and access to a personal television. He also would be transferred to a potentially more dangerous maximum-security unit.
Respondent refused to participate in the SATP sued arguing that the required disclosures of his criminal history would violate his Fifth Amendment privilege against compelled self-incrimination. The 10th U.S. Circuit Court of Appeals had sided with Lile, and said the state should consider giving rehabilitation participants immunity. The Supreme Court disagreed saying that the SATP is supported by the legitimate penological objective of rehabilitation and that "offering inmates minimal incentives to participate (in rehabilitation) does not amount to compelled self incrimination."
Minnesota Supreme Court Extends Time on Abuse Suits
Minnesota Supreme Court ruled that alleged victims of child abuse can file lawsuits up until the age of 24. The decision stems from a case of a man who was 13 when he was allegedly abused by a foster parent in 1993. He was removed from the home about five months later when he complained to a social worker. When he turned 19, more than six years later, he filed a lawsuit that claimed the Professional Association of Treatment Homes negligently hired and retained the foster parent. However, the district court judge threw out the suit, saying the statute of limitations had expired, and the Minnesota Court of Appeals affirmed the dismissal.
The Minnesota Supreme Court reversed and remanded the suit, holding that "a reasonable child is incapable of knowing that he or she has been sexually abused." They determined that the normal six-year statute of limitations doesn't start to run in sex abuse cases until the child turns 18.
Knowingly Passing HIV is a Felony
A Virginia man has become one of the first people in the nation to be charged under a series of new laws that make it a felony for someone knowing he or she is infected with HIV, syphilis or hepatitis B -- to intentionally transmit the infection through sexual contact. The law, enacted two years ago in Virginia , carries a maximum penalty of five years in prison.
After 4 years of marriage, the man told his wife that he had been infected for 14 years with the virus that causes AIDS. His wife notified police that he had intentionally infected her with HIV. The man was arrested and charged with "infected sexual battery."
Grand Jury Urges New Laws Making it a Felony to Cover-up Abuse
A grand jury issued a scathing attack on the Roman Catholic Church's handling of sex abuse complaints, urging new laws making it a felony whenever church officials fail to immediately report child molestation claims. The 13-page report is the result of a two-month probe into sexual abuse of children by priests in the county. The grand jury reviewed tens of thousands of pages of documents and heard from eight alleged victims of abuse by priests. It concluded that, the church's treatment of complaints amounted to "an orchestrated effort to protect abusing clergy members from investigation, arrest and prosecution."
The report calls on the New York Legislature to pass sweeping measures to root out molesters and punish church officials who cover up their crimes. The grand jury also recommended removing the statute of limitations when the victim of a sex crime is a minor, making it a crime for any individual or organization to allow a known sex offender access to children, and barring confidentiality clauses when settling civil lawsuits in pedophilia cases.
Employer Held Liable for Sexual Demands
A federal appeals court ruled that an employer is automatically liable where a supervisor bases decisions affecting a subordinate's employment on the subordinate's submission to sexual demands. The Plaintiff, Min Jin, filed suit claiming that her supervisor subjected her to crude remarks and unwanted sexual advances, all the while threatening to fire her if she did not submit. She also alleged that her supervisor punished her for reporting the harassment by denying her automatic paycheck deposit privileges and withholding her paychecks if she refused to attend the Thursday evening meetings where she was often molested. As a result, Min Jin claimed that she was afraid to come to work and changed her schedule to avoid being alone with him.
The court held that Metropolitan Life Insurance Co. should be held liable where a jury finds a company employee, fearing she would lose her job, submitted to a supervisor's quid pro quo demands as this constitutes a "tangible employment decision." MetLife argued that a "tangible employment decision" must be an official act of the company. However, the court ruled that the use supervisory authority to require Jin's submission was, for Title VII purposes, the act of the employer.
Physician Loses License over Expert Testimony
The North Carolina Medical Board revoked the license of Gary Lustgarten, MD, a Florida neurosurgeon who testified for a plaintiff in a medical malpractice case in North Carolina . The board found that Dr. Lustgarten engaged in unprofessional conduct by misstating facts and the appropriate standard of care in North Carolina . Andrew Watry, the board's executive director, said giving medical expert testimony falls within the state law's definition of practicing medicine. Dr. Lustgarten claims to have done nothing wrong.
Web Posting Is Like Print in Libel Case
The New York Court of Appeals held unanimously that the single publication rule applies to allegedly defamatory materials posted on the Internet. It also said Web site alterations unrelated to the offending article do not constitute republication for statute of limitations purposes.
The defamation case began when the state inspector general harshly criticized environmental police officer George Firth. In a report that was posted on the Internet, the inspector general questioned Firth's integrity and criticized his management in the disposal and sale of surplus handguns. The report was released at a press conference on Dec. 16, 1996, and posted on the state's Web site at the same time. Firth, who was suspended and later resigned, sued the state in the Court of Claims. However, his suit was filed three months beyond the statute of limitations and the District Court dismissed the action as time-barred. In doing so, it ruled that the posting of a story on the Internet constitutes a single publication, even if the piece remains on the Web site indefinitely. Firth appealed, arguing that alterations to a Web site amount to republication.
New York Court of Appeals unanimously rejected the argument that any modification to a Web site constitutes a republication of the defamatory communication itself, saying this would have a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet. The Court ruled that "The mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper . . . . [A] multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants."
Pornographic Evidence Admissible to Show Pattern Defendant's Sexual and Aggressive Impulses
Jerry Wayne Gedney appealed his convictions for sex abuse of a neighbor's child, arguing the trial court abused its discretion in admitting pornographic images from his computer disks. Gedney argues the pornographic photographs should have been excluded from evidence because their probative value did not substantially outweigh their unfair prejudice. The defendant also claimed his rights were violated when the judge excluded under the rape shield law cross-examination of the victim's sexual history.
The victim, a 15-year-old E.Z., reported that Gedney, asked her into his house where he showed her pornography involving a girl that Gedney said reminded him of her. He then tried to force sex on her. She reported that he refused, but he later forced his way into her house when her parents were out and raped her. A search of Gedney's home found approximately 150 pornographic pictures on disks, some of which were obtained from websites advertised as teen sex web sites.
The court held that because Gedney denied having any sexual contact with E.Z., evidence of the pornographic pictures is relevant to show Gedney's sexual and aggressive impulses. The court further held evidence of the victim's sexual history was not relevant and rejected the argument that the victim may have been motivated to falsely accuse the defendant to cover up her sexual relations with some other person.
New Jersey High Court Upholds Civil Commitment of Sex Offenders
The New Jersey state Supreme Court upheld a 1999 law that allows sex offenders deemed likely to commit similar crimes after their release from prison may be committed to a state psychiatric hospital. The unanimous court ruled that judges need only see "clear and convincing evidence"' that an offender will commit another crime. The law allows for annual case reviews for the inmates.
Uncorroborated Testimony of Child Victim is Sufficient to Sustain Conviction
The defendant was convicted on two counts of child molestation bases exclusively on the testimony of a child victim who was abused between the ages of 7 and 9. On appeal, the defendant argued that the uncorroborated testimony of a child is insufficient to sustain a conviction beyond a reasonable doubt.
The child disclosed to a school counselor that the defendant had been touching her repeatedly in her "private part" since she was about seven years old. She said that this happened during every visit to his home. The Department of Family and Children Services and the police interviewed the victim. These interviews were recorded on videotape and played to the jury. Despite his denials, the defendant was convicted.
On appeal, the court reviewed the evidence and held that the victim's testimony was sufficient to authorize the jury to find the defendant guilty because determining the credibility of the witness is within the province of the jury. No requirement exists that the testimony be corroborated.
California Statute of Limitations Eased in Abuse Cases
Governor Gray Davis signed a bill that dramatically relaxes the statute of limitations in molestation cases. The bill, drafted in response to the Roman Catholic Church sex scandal, received unanimous support in the Assembly and Senate. Beginning in January 2003, the new law suspends the statute of limitations for one year in molestation cases where an institution or company allowed a known molester to continue to work and that person went on to abuse another child. Existing law allowed victims of childhood sexual abuse to pursue legal action until their 26th birthday or for three years after they realized their emotional or physical problems were caused by abuse.
Confession to A.A. Members Is Not Protected,
The Westchester County district attorney appealed and U.S. Court of Appeals overturned the lower court's ruling. The higher court ruled that the confessions - which did not take place at AA group meetings - were not made in confidence or for the purpose of obtaining spiritual guidance, and thus were not privileged, regardless of AA's status.
Daubert Hearing Required Before Admitting Testimony on the "Cycle of Domestic Violence"
Defendant, David Lee Williams, was convicted of convicted of aggravated battery after his girl friend's wrist was broken during a fight. The victim recanted her testimony at trial and the State presented the testimony of an expert who provided evidence that it is not uncommon for victim's of sexual abuse to falsely recant after reporting truthful allegations.
The defendant appealed, contending (1) because the victim recanted, he was not proven guilty beyond a reasonable doubt; (2) the trial court erred in admitting expert testimony regarding the "cycle of domestic violence."
The appellate court reversed the convictions, and ordered a new trial -- not because of the inadequacy of the evidence -- but because there was no preliminary hearing to establish the underlying scientific reliability of the expert's testimony. The court noted that testimony regarding the cycle of domestic violence was essentially an opinion as to the credibility of the various statements made by the victim. The Illinois Court of Appeals ruled that expert testimony should not be used to give an opinion as to the credibility of a witness at trial and that the State did not establish that the cycle of domestic violence constitutes a generally accepted scientific or technical principle.
Man Given Visitation Despite Child Porn Arrest
A Rhode Island Attorney arrested on child pornography charges was granted visitation with his young victim. The boy's mother, Tamara Arrington, asked the court Friday to deny Gonnella unsupervised visitation with the boy. The judge said the child's biological father deserves visitation rights, even though the father, Ralph Gonnella, has been accused of taking sexually explicit pictures of the 7-year-old boy. The judge ordered her to turn the boy over to Gonnella. Arrington said she had no choice but to comply with the judge's order. "If I take my son and go, I face charges."
Psychologist Does Not Have to Be Licensed in State to Testify As Expert
An Alabama appellate court held that a psychologist need not be licensed to practice in the state in order to testify as an expert witness. Here, a divorced father involved in a visitation dispute in Alabama objected to the expert testimony of a psychologist on the ground that she was not licensed to practice in the state. The trial court excluded the testimony of the psychologist. The appellate court reversed noting that testifying as a psychologist in court is not the same as practicing psychology in Alabama .
ADA Suit Allowed Against State
The doctrine of state sovereign immunity under the 11th Amendment generally prohibits citizens from suing a state for monetary damages without its consent. Recent ruling by the U.S. Supreme Court decisions have reinforced states' immunity to many private suits filed under federal law. However, a new ruling by the 1st U.S. Circuit Court of Appeals took the opposite approach, allowing New Hampshire to be sued under the Americans with Disabilities Act. The appellate court ruled that private individuals can sue a state for money damages under Title II (public services) of the ADA if they allege facts sufficient to state a constitutional violation.
The 1st Circuit decided that Matthew Kiman, a former prison inmate, could sue the New Hampshire Department of Corrections under Title II because he had alleged facts sufficient to state a constitutional claim. Kiman, who suffers from amyotrophic lateral sclerosis (ALS), alleged that prison officials: refused to give him a cane so that he could walk, refused to provide a chair for him to take showers, and placed him in a third-floor cell, even though he had great difficulty climbing stairs. The appeals court determined that Congress had the authority to subject states to Title II suits in situations where "the facts of the statutory claim also make out a constitutional one." In her majority opinion, Judge Sandra L. Lynch stated that the alleged facts of this case would amount to violations of the Eighth Amendment because, if true, prison officials showed a deliberate indifference to his medical needs.
New Rules on Computerized Patient Records
The Bush administration issued the final rules designed to protect the confidentiality of computerized patient records. These rules will apply to all patient records that are kept in electronic form but not to those that are on paper. Although the ruling gives Americans certain federal rights over how their medical information is used, it offered weaker safeguards than those sought by consumer advocates. The rules, most of which take effect next spring, will require new protections for patients, including guaranteeing that people may inspect their medical records and correct mistakes, find out who else has looked at them, and seek penalties against anyone who misuses the information. The final regulations, however, omit a requirement requiring a patient's written permission before their personal health information can be handled by doctors, hospitals, pharmacies and insurance plans.
In general, the rules allow the sharing of personal medical records only to treat patients, pay bills and carry out "health care operations." Under the new standards, the smallest amount of information should be disclosed for specific purposes, and, when possible, patients' names are to be left out. The rules require that providers give notice that personal patient health information, both physical and psychological, has been disclosed--rather than obtaining patients' consent to do so first. The regulations also provide access without consent or court order to medical records for "national priority purposes," particularly purposes of the police and national security agencies.
Expert Not Allowed on Susceptibility of Children to Coercive or Suggestive Interviewing Techniques
Daniel LeBlanc was convicted of molesting her step-daughter, a 6 year old Native American girl. The abuse was discovered when a neighbor caught him in the act. When confronted by the police, LeBlanc confessed to the molestation. The child was interviewed and was clear in describing what had happened. The interview was videotaped and the interviewer followed the State of Michigan Forensic Guidelines .
At trial, LeBlanc recanted his confession and the defense attempted to suppress the defendant's confession and to introduce testimony by Terrance Campbell regarding the susceptibility of children to coercive or suggestive interviewing techniques. The U.S. District Court denied these defense motions. According to the district court, Dr. Campbell's proposed testimony was deficient because: (1) his theories were not generally accepted in the psychological community; (2) his theories were based on a "soft science" that is "not repeatable" and in which "error is . . . rampant"; (3) he had done no research in the area of his testimony; (4) he "is clearly an advocate"; and (5) the subject of his testimony invaded the province of the jury.
The U.S. Court of Appeals upheld the lower court ruling finding that Dr. Campbell's testimony did not pass screening criteria of Daubert . The court noted that Dr. Campbell's relied almost exclusively upon a handful of published articles and that none of the studies upon which he relied involved the study of the memory and suggestibility of sexually abused children. In addition, Campbell admitted that he had not participated in any research relating to the area of his proffered testimony. Moreover, at no time during the Daubert hearing did Campbell point to a single instance in which S.S. was supposedly subjected to allegedly coercive or suggestive questioning techniques. Thus, LeBlanc failed to demonstrate the "fit" between Dr. Campbell's proffered testimony and any fact at issue in this case.
Hospital Not Liable for Doctor's Duty of Informed Consent
In a case of first impression, the Pennsylvania Supreme Court examined the issue of whether a hospital can be held vicariously liable for a doctor's failure to obtain a patient's informed consent. The high court, led by Justice Ralph J. Cappy, said the duty to obtain informed consent rests solely with the doctor. "Informed consent flows from the discussions each patient has with his physician, based on the facts and circumstances each case presents," Cappy wrote. "We decline to interject an element of a hospital's control into this highly individualized and dynamic relationship." In addition, the Cappy noted that as the duty to obtain informed consent rests only with the physician performing the surgical procedure, a medical facility cannot be held vicariously liable for the physician's failure to perform this non-delegable duty.
Settlement Affirms Gay Students' Right to Be Free of Harassment
In what plaintiffs' attorneys call the first settlement in the country to recognize the constitutional right of gay students to be protected from harassment in public schools, Washoe County School District agreed to pay a former Reno , Nevada high school student $451,000.
Derek Henkle began high school in the fall of 1994. A year later, after appearing on a local cable TV show about gay high school students and their experiences, Henkle was repeatedly harassed and assaulted by other students. When he complained to school officials, Henkle said that he was treated as if he was the problem and was told not to discuss his sexual orientation with others. Eventually Henkle was transferred to two other high schools in the district and when the problems persisted he was sent to an adult education program at a community college. In May 1997, at age 16, he dropped out of school because he was ineligible for a high school diploma and not old enough to take the GED exam.
In 2000, Henkle filed suit against numerous principals, administrators and teachers in the Washoe County School District in Reno . The suit claimed the school district violated Henkle's federal constitutional rights to equal protection based both on sexual orientation as well as sex, and also violated his right to freedom of speech. The suit also accused the district of violating Title IX, the 1972 education amendment that prohibits discrimination based on sex by schools that receive federal funds. In addition to offering Henkle a large monetary settlement, the school board agreed to adopt 18 policy changes regarding the prevention and proper response to harassment and intimidation of gay students.
No Expert Testimony Allowed on Eyewitness Identifications
Acting Supreme Court Justice Bernard J. Fried declined to allow expert testimony on eyewitness identifications in a murder trial, saying that such testimony has not been generally accepted by the scientific community. The court conducted a full Frye hearing on the scientific validity of expert testimony that questions the accuracy of eyewitness identifications. After hearing from two opposing experts, Judge Fried found that studies on eyewitness identifications are varied and conflicting and that the contrast between the two experts' testimony made it clear that the scientific community had not agreed upon the validity of eyewitness research, or the methods for conducting it. As result, he ruled that such testimony is inadmissible. Fried's ruling contrasts with the findings of two other New York judges who have allowed expert testimony on eyewitnesses without holding hearings.
Gays Can Sue for Sex Harassment in the workplace
Setting new protections for gays and lesbians in the workplace, a U.S. appeals court ruled that homosexuals may use federal civil rights laws to sue for alleged sexual harassment. Medina Rene, an openly gay Las Vegas hotel employee, sued his employer in 1997, saying that from between 1994 and 1996 his male co-workers and supervisor created a hostile work environment by calling him derogatory names, assaulting him, and subjecting him to crude pranks targeting his homosexuality.
The appeals court found the conduct to constitute sexual harassment. "We are presented with the tale of a man who was repeatedly grabbed in the crotch and poked in the anus, and who was singled out from his other male co-workers for this treatment," the majority opinion, by Judge William Fletcher, said. "It is clear that the offensive conduct was sexual. It is also clear that the offensive conduct was discriminatory. That is, Rene has alleged that he was treated differently -- and disadvantageously."
California Becomes First State to Enact Civil Remedy for Victims of Domestic Violence
Governor Gray Davis signed a bill sponsored by the California National Organization for Women (NOW) that allows victims of gender-based crimes such as domestic violence and sexual assault to bring civil action against their attackers. California is the first state to enact such a law based on a civil remedy provision originally contained in the federal Violence against Women Act (VAWA) approved by the US Congress in 1994 but struck down by the US Supreme Court in 2000. In United States v. Morrison , the Supreme Court ruled that the states, not Congress, had the right to enact this provision. The California bill allows women and men who are victims of gender-based violence to seek actual, compensatory, and punitive damages, attorneys' fees, and costs.
HHS Finalizes Controversial Prenatal Care Program
The US Department of Health and Human Services (HHS) finalized a controversial rule defining fetuses and embryos as unborn children for the purpose of providing healthcare coverage to low-income pregnant women. The rule will allow states to enroll the women in the State Children's Health Insurance Program (SCHIP), a federally funded, state-run insurance program meant to provide coverage for low-income children. Under the HHS rule, federal coverage would be extended to the fetus. The new regulation would also allow states to provide this benefit to pregnant women regardless of their immigration status. At present, immigrant women cannot be covered using SCHIP funds unless the mother has resided in the US for at least 5 years.
HHS Secretary Tommy Thompson has portrayed the new rule as "a common-sense, compassionate measure to make sure that all children born in this country come into the world as healthy as possible." However, the HHS rule is opposed by women and abortion rights groups who believe that the rule it is a part of backdoor way for the Bush administration to push its agenda to make abortions illegal. They point out that pregnant women deserve comprehensive health care coverage as adults for all of their health needs, not just the needs of their fetus.
California Bill Allows Forced Treatment of the Mentally Ill
In an effort to keep people with severe mental health problems out of jail and off the streets, Governor Gray Davis signed legislation to allow a judge to order outpatient treatment for thousands of Californians who have refused treatment of their mental illness. Existing law allows involuntary treatment for the mentally ill only for those who are in imminent danger of harming themselves or others. However, the new law, AB 1421, allows counties to join a new program that would provide intense outpatient care to anyone with a severe mental problem who resists treatment.
When Insurers Say No, Patients Often Win on Appeal
A recent study by Rand Corporation found that increased pressure from disgruntled members and state regulators has led to health plans becoming more responsive to member complaints. Most complaints surface after patients have already received the medical services and HMOs refuse to cover the visit. Consumers once faced lousy odds when they challenged such denials. However, the tide has turned and consumers who pursue their right of appeal are now winning a wide variety of cases. This change is due in part to the fact that 41 states have formed external review boards where consumers can appeal an unfavorable decision. The state review boards have the power to investigate and, when necessary, overrule insurers' decisions. This has put pressure on the health plans to settle complaints before they get the attention of state regulators.
The Rand researchers, who studied 11,000 appeals between 1998 and 2000 at two large California HMOs, found that consumers were overwhelmingly successful in appealing for reimbursement for past services. They won 89% of the appeals at one HMO and 78% at the other health plan. Particularly striking was the fact that patients won appeals involving emergency-room care 95% of the time. However, patients were less successful when they tried to ensure payment for a future doctor referral, treatment or prescription, winning only one in every three cases.
South Carolina 's Federal Judges Ban Secrecy on Legal Settlements
In the first such move in the nation, South Carolina 's 10 active federal trial judges unanimously voted to ban secret legal settlements, saying such agreements have made the courts complicit in hiding the truth about hazardous products, inept doctors and sexually abusive priests.
The impact of such a ban could be limited, however, because most personal injury claims are litigated in state rather than federal courts. In addition, the rule only applies only to court-approved settlements not the large numbers of cases that are settled out of court.
U.S. Releases Nursing Home Data
After years of criticism about conditions at the nation's nursing homes, the government released information on all 17,000 of nursing homes in the United States . The database includes information on 10 quality indicators examining such things as the prevalence of physical restraints at a facility and the percentage of residents who have bed sores. Information on deficiencies found during annual inspections and complaint investigations is also included.
Video Test Developed to Identify Young Children Who Might be Unreliable Witnesses in Legal Cases
Researchers at CornellUniversity developed a test to identify children who might change their testimony in response to leading questions or negative feedback. The Video Suggestibility Scale for Children (VSSC) consists of watching a video and then responding to suggestive questioning. The scale was developed by Stephen J. Ceci, the Helen L. Carr Professor of Developmental Psychology in the College of Human Ecology at Cornell, with his former graduate student Matthew Scullin, who is now an assistant professor of psychology at West Virginia University .
The psychologists studied 25 children younger than 4.5 years (average age 4 years, 1 month) and 25 children over 4.5 years (average age 5 years). The psychologists staged two events in the children's preschools and then interviewed the children each week for four weeks. During these interviews, the researchers intentionally made false suggestions about an event, asked leading questions, reinforced inaccurate information and applied indirect peer pressure. This was done by stating that other children had seen the child being interviewed participating in the event. Several weeks later the children were assessed using the VSSC.
The researchers found that the VSSC was a reliable predictor of whether children over age 4 (but not children under age 4) were suggestible or not. The test is not yet available for forensic use.
Expert Testimony Permitted on Why a Victim of Domestic Violence Might Recant
Beatrice Patrick reported to the police that she had been kidnapped, imprisoned and assaulted repeatedly over the course of several days by her former boyfriend Roy Young. Patrick's testimony of her ordeal before a grand jury was entirely consistent with her statements to the police, the FBI agents, the medical personnel, the 911 operators, and her aunt. Her testimony at the grand jury was also consistent with her physical injuries, and with the testimony of several witnesses. During the trial, however, Patrick recanted her previous report about the kidnapping and abuse.
Young appealed the district court's decision to admit the expert testimony of Dr. Burgess, arguing that her methodology was not reliable because Dr. Burgess formed her opinion before meeting with Patrick. The defense also argued that Burgess' methodology was flawed because she relied on anecdotal evidence.
The appellate court held there is no legal requirement that such an expert interview the victim before forming an opinion. It ruled that Dr. Burgess's opinion was scientifically reliable because it was based on substantial evidence including her interview of Patrick, police and medical reports, communications between Patrick and Young, along with Dr. Burgess's extensive nursing experience and her academic research on several hundred battered women. In addition, given Patrick's recantation at trial, the court found that Dr. Burgess' expert opinion was helpful to the jury in determining how to credit that testimony.
Therapist/Patient Privilege Doesn't Apply Unless Actively Asserted
Defendant, David Oliveira, was convicted on multiple indictments stemming from a series of sexual assaults perpetrated against his girl friend's two daughters. The abuse started when the girls were 7 and 9 and continued for 6 years. K.A. disclosed the abuse to her mother when she was ten years old, but then retracted the allegation at the defendant's insistence. Several years later, she again complained to her mother about the defendant's abuse, at which point the Oliveira, made some incriminating admissions to the mother and promised to seek counseling. The abuse continued the family finally reported the allegations to the police in July 1993 -- a month after K.A. attempted suicide.
After his conviction, Oliveira moved for a new trial, claiming ineffective assistance of counsel for counsel's failure to seek production of all K.A.'s treatment records. The case was remanded for the judge's examination of the records and his determination whether they contained any relevant material. However, the defendant requested that the remand proceedings begin with the judge's determination whether the records were in fact privileged.
The court reviewed the law and determined that the privilege is not self-executing. The court ruled that state statutes creating these privileges, require some action by the patient or client in order to "exercise" the privilege therein created. "Absent an affirmative assertion of the privileges . . . the court must treat such records as if they were unprivileged." Because neither K.A. nor any member of her family asserted any privilege with respect to any of the summonsed records, and none of the health care providers asserted any privilege on her or their behalf (note - there is nothing in the record to indicate whether K.A. or anyone in her family was notified of the issuance of these summonses), the defendant was allowed all of the victim's treatment records.
Victim advocates recommend that patients take steps to ensure that their files contain a statement from them forbidding the release of any information without their express written and informed consent.