Saturday, July 17, 2010

Iowa Supreme Court decision puts crime victims at risk

Iowa Supreme Court decision puts crime victims at risk

ELIZABETH BARNHILL and LAURIE SCHIPPER • July 17, 2010 Des Moines Register

The July 2 Iowa Supreme Court decision, Iowa v. Cashen, is a giant step backward for crime victims. In its decision, the court announced it will allow individuals facing criminal charges to access the previously protected mental health records of their victims. The ramifications of this decision are alarming.

Imagine being burglarized, reporting the burglary, and then learning that the accused can gain access to your mental health records. This ruling allows those charged with crimes to invade the most private and intimate thoughts and feelings of survivors, those contained in their mental and medical health records. This potential invasion of privacy will have two devastating consequences: First, people will stop reporting victimization to law enforcement or will refuse to cooperate in prosecution. Second, victims will not seek mental and other health care. In addition, witnesses to crimes may refuse to come forward with information out of concern that their private medical history may be used to discredit them in court. These ramifications serve to obstruct the truth-seeking process rather than promote it.




While there is strong public policy to ensure that innocent persons are not convicted of crimes, it is equally important that criminals should not be allowed to coerce, threaten or intimidate their victims into not reporting crimes. Justice Mark Cady's dissenting opinion states, "The only way victims of domestic abuse with a history of counseling will be able to ensure the confidentiality of their private counseling records is to not report domestic abuse." It is likely that this is precisely what will happen as a result of this case. The ruling gives those charged with crimes another tool to silence their victims. This ruling likely means that victims will not report crimes and criminals will go free.

Although under this decision records do not necessarily become public immediately, defense attorneys have the right to review all mental health records of the victim. Iowa is made up of small communities where people know each other. The defense attorney and prosecutor reviewing records may be your neighbor or fellow PTA member or parishioner. Under this ruling, they have the right to confidential information you shared with a counselor. Although attorneys in these cases are bound by confidentiality, you would probably not choose them to confide your intimate personal experiences. Should you become a crime victim, your marital woes, your struggle to stay sober, or your angst over your acting-out adolescent will no longer be known only to your counselor.

This ruling is particularly harmful to victims of sexual assault and domestic violence. Many are only able to cope with the trauma they suffered by working with a mental health professional. The mental health professional is often their only completely safe and private outlet. This decision strongly discourages all crime survivors, and particularly sexual assault and domestic violence victims, from seeking mental health treatment. Experiencing crime contributes to a number of mental health issues, including substance abuse, depression and post-traumatic stress disorder. If victims do not feel safe talking with mental health professionals they will continue to suffer rather than risking such an extreme loss of privacy. Privacy forms found in every health care setting may need to be amended to say: None of these privacy rights may apply if you are or become a crime victim.

This ruling just gives more power to those who commit crimes, and enables them to continue harming victims under the guise of "justice." Our society will not be safe when the very system we have created to protect victims is being controlled and manipulated by criminal defendants to ensure that victims are too scared to make their voices heard. Justice Cady is right: The law certainly can do better.

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