On April 18, 2023, NWLC joined an amicus brief led by Victim Rights Law Center and Jane Doe, Inc. on behalf of nine survivor advocate organizations to Massachusetts’ highest court in Florio v. Wayside Youth and Family Support Network in support of a counseling center in the state that is resisting turning over a minor survivor’s sexual assault counseling records. Massachusetts law creates an important privilege for confidential communications between a sexual assault survivor and a sexual assault counselor. Thus, criminal defendants cannot access these communications unless they can establish that there is a “specific need” for the records and that disclosing the records would not cause an “undue hardship” on the recordholder. However, in this case, a Massachusetts lower court ordered the counseling center to release the survivor’s records to the assailant, who is being prosecuted in Rhode Island, without ensuring that the request met these requirements.
The amicus brief explains that the Massachusetts lower court made three errors. First, it wrongly relied on the Rhode Island court’s determination that the counseling records could be generally relevant to the assailant’s defense, even though that analysis did not apply Massachusetts’ “specific need” requirement. Second, the lower court did not adequately consider that disclosing the records would impose an “undue hardship” on either the minor survivor, who would suffer significant psychological harm, or to the counseling center, which would be unable to generally assure confidentiality as part of its sexual assault counseling services to any of its clients if there was always a risk of the records being so easily disclosed. And third, the lower court incorrectly held that any objections to the disclosure of counseling records should be made to the requesting court, even if it is not a Massachusetts court, which would create great uncertainty for both survivors of sexual assault and the counselors who treat them. Therefore, the amicus brief urges the court to properly apply the “specific need” and “undue hardship” requirements in all cases concerning survivors receiving care in Massachusetts and to require Massachusetts courts to make these determinations, regardless of where the assault occurred or where a criminal defendant is seeking the records.