So You Think You Are Entitled To You Accuser’s Psych Records Because You’re Charged With Sexual Assault?

Have you been charged with “criminal sexual conduct”, the Michigan statutory term for rape or molestation? If so, then the psychological history of your accuser could go a long way towards determining the truthfulness of the allegations, and her true motivation for bringing the allegations of sexual assault.

Certainly, women report instances of rape because they were in fact sexually assaulted. Unfortunately, the number of false allegations of sexual assault is huge – even the Department of Justice acknowledges that sexual assault is the most over reported crime, with false allegations comprising anywhere from 10% of sexual assaults claims, to possibly as high as 30 or 40%.

Complainants can bring forth untruthful allegations of rape for several reasons, many of which may be hidden in their psychological records. Whether your accuser is a compulsive, pathological, or sociopathic liar may be revealed in her psychological records. Likewise, whether your accuser suffers from paranoia, bi-polar, or some other disorder could be found in her psychological records. Perhaps the allegations were “suggested” or “implanted” in their memory by a psychologist during therapy? The importance of your accuser’s psychological history can be directly relevant to the allegations she makes against you, and may even contain exculpatory evidence you are entitled to under the United States Constitution.

If the goal of any trial is to get to the truth, then allowing you access to the accuser’s psychological records is necessary. So the law certainly allows you to review the accuser’s psychological records, right? Not so fast! In Michigan there are significant procedural hurdles to clear before you can even see, let alone use at trial, the accuser’s psychological records. This is true in other charges as well – domestic violence, child abuse, and every other offense.

In this blog, I will address the legal implications and steps involved in the criminal defendant’s access to an accuser’s psychological records.

The Problem. Central to the psychological records of a person alleging a sexual assault is the public policy of doctor/patient and therapist/client privilege and confidentiality, combined with protecting the rights of victims. Over the last four decades, public sentiment has evolved to a point where society values protecting victims at the expense of the rights to the criminal defendants. An important right guaranteed to all criminal defendants is the Sixth Amendment right to confront your accuser, which you probably think includes access to the potentially exculpatory evidence contained in the psychological records of the accuser. However, the Sixth Amendment right to confront your accuser has been eroded through the passage of numerous laws by the Michigan Legislature. For example, the Michigan Legislature has enacted a statute prohibiting the disclosure of a victim’s psychological records in a criminal prosecution. MCL § 330.1750(1) provides in relevant part: “Privileged communications (such as a victim’s medical and psychological records) shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege”.

This point is further emphasized by the Michigan Supreme Court’s 1994 decision in People v. Stanaway, 446 Mich. 643, 648, 521 N.W.2d 557 (1994). In Stanaway, the Michigan Supreme Court addressed a defendant’s Sixth Amendment right to confront accusers and the public policy contained in multiple statutes limiting access to the medical records of accusers, such as psychological records. The Stanaway decision went on to explain that privileged communications, such as those between an accuser and her doctor, could only be discoverable “where a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense…” Huh, what? Confused yet?

Basically under the standards created by Stanaway, a criminal sexual conduct defendant can only get the psychological records of his accuser when he already knows what is contained in those records – or at least has a really good idea. Sound ridiculous? It is. How can a defendant possibly show the court what might be in the accuser’s psychological records without first seeing those records?

Adding to the seemingly impossible standard created in Stanaway is that even if a criminal defendant can establish what is in the accuser’s psychological records, then he still cannot have access to the records until the trial court conducts “…an in camera review of those records…to ascertain whether they contain evidence that is reasonably necessary, and therefore essential to the defense.” If the court finds that the evidence is not “reasonably necessary” and “essential to the defense”, then the defendant never gets to see what might be in the accuser’s psychological records.

In sum, you must tell the court what is in the psychological records and how they are necessary to your defense without seeing them, trust the prosecutor will provide all of the documents to the court, and then trust the court to fairly review them in chambers to determine what is essential to your defense. Still think you are entitled to the accuser’s psychological records?

The restriction on discovery of psychological records of the accuser was even adopted into the Michigan Court Rules, which governs how courts conduct their business. Specifically, the Michigan Supreme Court adopted MCR 6.201 that codifies the holding of Stanaway relating to the discovery of an accuser’s psychological records. MCR 6.201(C)(1) states that “there is no right to discover information or evidence that is protected from disclosure by constitution, statute, or privilege…” Meanwhile, MCR 6.201(C)(2) provides: “If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records”.

MCR 6.201(C)(2)(b) goes on to instruct the trial court on the procedure to follow after the in camera inspection. According to MCR 6.201(C)(2)(b) if after conducting an in camera inspection of the accuser’s psychological records the court determines it is necessary to the defendant’s defense, then the court shall direct the evidence be made available to defense counsel. Conversely, if the court finds the accuser’s psychological records are not necessary to the defendant’s defense, then the court must not permit discovery by defense counsel. In either circumstance, the trial court is required by MCR 6.201(C)(2)(c & d) to make “findings sufficient to facilitate meaningful appellate review” and “to preserve the records for review in the event of an appeal.”

The application of Stanaway through MCR 6.201(C) creates an arduous burden on trial courts to determine what part, if any, of an accuser’s psychological records should be disclosed to a criminal sexual conduct defendant. Your fate in receiving the psychological records of your accuser rests squarely with the trial court under Stanaway and MCR 6.201(C).

Developments since Stanaway. In the last twenty-five years plus, the Michigan Supreme Court and Court of Appeals have decided countless cases based on the holding in Stanaway. There are two points to be taken away from the volume of cases: 1) Stanaway is the law of Michigan, not likely to change anytime soon; and 2) fishing expeditions to find out information on the accuser are not permitted. The Court of Appeals has said: “Disclosure (of psychological records) should not occur when the record reflects that the party seeking disclosure is on a fishing expedition to see what may turn up. A defendant is fishing for information when he or she relies on generalized assertions and fails to state any specific articulable fact that indicates the privileged records are needed to prepare a defense.” People v. Davis-Christian, 316 Mich. App. 204, 206, 891 N.W.2d 250 (2016).

So, what can you do? As you can see from the one-sided rules regarding access to an accuser’s psychological records, it is you against the world. Whenever a person is charged with sexually assaulting another, there is always a victim. Either a person suffered a horrific violation of their body, or an innocent person has been accused of a terrible crime. The goal of a trial is to determine the truthfulness of the allegations—to determine who is guilty and who is the real victim. If you are going to prevail at trial then you must be proactive in defending yourself.

To make sure you can effectively confront your accuser, access to her psychological records is critical. Although the rules are against you, there remains things that can be done to assure you get access to the accuser’s psychological records. We already know fishing expeditions are bad. Yet still, even under the strict standards of Stanaway, you may be able to win access to the accuser’s psychological records. The challenge is to file a Motion that shows how and why the psychological records are necessary to your defense.

Your first step in gaining access to the accuser’s psychological records begins with hiring an experienced and competent defense attorney. Your second step is to tell your attorney everything you know about your accuser. What you know about your accuser may enable your attorney to show the psychological records are necessary and essential to your defense. Even if you do not know that much about your accuser, then other strategies can be employed to gain access to the accuser’s psychological records, such as hiring an expert witness or private investigator. Your clear take away blog is to stay proactive in defending yourself. No matter what you might be feeling emotionally or how frustrated you become; Don’t give up!