Minnesota Supreme Court hands privacy victory to sexual assault victims

The Minnesota Supreme Court ruled Wednesday that state law protects communications between sexual assault counselors and people who come to them for help, a significant victory for victim advocacy groups who say the law has been applied inconsistently for decades.

The ruling reverses the decision of a district judge, who allowed court review of a woman's "notes, memoranda, records, reports" or any other communication with a southern Minnesota sexual assault advocacy group in a criminal case.

The lower court's actions were "unreasonable" because the plain language of Minnesota law "creates a privilege for sexual assault counselors that cannot be pierced in a criminal proceeding without the victim's consent," wrote Supreme Court Associate Justice Natalie Hudson.

In 1982, the Minnesota Legislature passed a law that said sexual assault counselors can't disclose any "opinion or information received from or about the victim" without that person's consent. The law mirrored confidentiality language that also applied to therapists, chemical dependency counselors, members of the clergy and others.

But over the years, state judges have sometimes ruled in favor of defendants who subpoena records from sexual assault counseling groups, allowing for "in camera" review. That means judges and their staff can review the records behind closed doors and decide if the records are relevant.

That's what happened in southern Minnesota, where a criminal defendant in a sexual assault case subpoenaed records from the Hope Coalition, a sexual assault counseling agency. In December 2019, a district court ordered the coalition to disclose "any and all" documentation concerning the victim over a five-year time period. Attorneys for the accused argued that those records were needed under the right to due process and full defense.

The sexual assault advocacy group Standpoint filed an appeal, hoping the Minnesota Supreme Court would take the case and set a precedent that all lower courts would have to follow.

"The Minnesota Supreme Court applied a strict scrutiny standard and it said that the state has a compelling governmental interest in protecting sexual assault victims," said Rana Alexander, executive director of Standpoint. "That is a huge statement from the Supreme Court in recognizing that we are serious in the state of Minnesota about ending sexual violence."

Depending on the level of interaction, sexual assault advocacy groups could keep records on whether a victim was given crisis counseling or if the person was helped with an order for protection. The groups might have files if they provided a referral.

Victim advocacy groups say knowing those records could be reviewed can have a chilling effect on a victim's willingness to report an assault.

"Sometimes judges say, 'Well, let's just take a look-see.' Well, that doesn't reach the standard that is required under Minnesota law," Alexander said. "We have a higher standard; we need to apply it."

Rep. Kelly Moller, DFL-Shoreview, who wrote an amicus brief supporting sexual assault groups in the case in her role as an assistant Hennepin County attorney, said she's seen privilege pierced more often for victims of sexual assault.

But the state Supreme Court's decisive ruling could have much broader implications for confidentiality in cases involving therapy and medical records, including for victims of domestic violence.

"This is a very conclusive opinion," Moller said. "The court is giving very clear direction that a privilege is a privilege."