NCJ Number
153598
Journal
Harvard Journal on Legislation Volume: 32 Issue: 1 Dated: (Winter 1995) Pages: 255-299
Date Published
1995
Length
45 pages
Annotation
This article examines the privacy interest of the sexual assault survivor and the confrontation right of the defendant in order to assist courts and legislatures in striking the optimal balance between the two competing rights.
Abstract
Part I explores the various aspects of the sexual assault survivor's privacy interest. This includes an examination of the various justifications for the existence of testimonial privileges. It proposes a constitutional basis for asserting privilege in a counseling relationship and describes the psychological trauma faced by sexual assault survivors. Part II examines the other side of the balance: the right of the accused to obtain access to the sexual assault survivor's confidential counseling records. Part III reviews the four types of privilege that courts can grant to a sexual assault survivor's counseling communications. To examine the interests of the defendant and the survivor in a concrete context, Part IV surveys the recent turmoil in Massachusetts' judicial and legislative systems over the interpretation of privilege granted to confidential counseling records of sexual assault survivors and contrasts it with the judicial and legislative experiences with absolute privilege in Pennsylvania. The article concludes by calling for a clearly defined scope of privilege that guarantees absolute confidentiality, absent some limited, articulated circumstances. 277 footnotes