SJC’s Decision in In the Matter of a Motion to Compel Protects Massachusetts’ Standards for Sexual Assault Counseling Records, But Raises Interstate Legal Tensions

September 18, 2023.

In In the Matter of a Motion to Compel, 492 Mass. 811 (2023), The Massachusetts Supreme Judicial Court ruled that, when responding to a request under the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, a Massachusetts court must apply the Lampron-Dwyer protocol to protect the confidentiality of sexual assault counseling records. This decision emphasizes the importance of safeguarding victims’ privacy, even when records are sought by an out-of-state court.

Our Take:

The Court held that issues of privilege should be litigated in the requesting jurisdiction in compliance with the “Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings” (a real page turner, I’m sure). That general rule was reaffirmed in In the Matter of a Motion to Compel; however, the Court also created an exception.

Massachusetts has particularly protective rules governing how sexual assault counselling records are provided to defendants in criminal cases. Here, once a judge agrees that pertinent protected records must be produced to preserve a criminal defendant’s constitutional rights, the records are sent to the Clerk’s Office and kept under seal.  Defense counsel may only inspect them; he may not copy, take home, or discuss them, even with his client. Only if inspection reveals information relevant to the defendant’s case may counsel file a request to the court to release them.

The concern for the Court in In the Matter of a Motion to Compel is that the protections of sexual assault counseling records in another jurisdiction may not be as expansive in Massachusetts. In order to ensure that victims of sexual assault residing in Massachusetts have the full protection of Massachusetts law, the SJC carved an exception to the Uniform Act. Specifically, a party with standing to object in Massachusetts may object and prevent the records from being released to a foreign jurisdiction if they prove that the expansive protections given to sexual assault counseling records in Massachusetts will not be honored in the requesting state. The records will only be turned over to the requesting court if that court ensures compliance with Massachusetts protections. 

The obvious concern is that the Commonwealth is infringing on the rights of the other states, the terms of the Uniform Act, and the rights of individuals subject to prosecution in those states. The SJC concedes that its potential refusal to respond to subpoenas from other states is based on the “Commonwealth’s strong and clear public policy.” It’s likely that other states have different opinions on what their public policy should be. If courts in those states refuse – for instance, based on their own constitutions – to submit to Massachusetts’ policy, In the Matter of a Motion to Compel comes at a potentially high cost.  For instance, consider a defendant charged with sexual assault in Rhode Island who proves to the court in Rhode Island that counseling records in Massachusetts are necessary to preserve his right to a fair trial. The Rhode Island court sends a subpoena, but the Massachusetts court, acknowledging they have the records, refuses to send them because Rhode Island’s protections of the records are not as thorough. The SJC’s decision seems to place the the Rhode Island court in an untenable position, wherein it must choose what to sacrifice – the defendant’s local constitutional rights, or the prosecution’s very ability to prosecute hanging in the balance. By creating this Hobson’s choice, the SJC has potentially injured the rights of the Commonwealth’s sister states to enforce their laws in a manner which meets its own constitutional requirements.