State Rep. Kelly Moller, DFL-Shoreview, said calls to review confidential communications occur most frequently in sexual assault cases, which has a chilling effect on victims. (Leila Navidi, Star Tribune/The Minnesota Star Tribune)

Victims' advocates say Minnesota judges inconsistently apply a state law protecting communications between sexual assault counselors and people who come to them for help.

Now, those groups have taken their case all the way to the Minnesota Supreme Court, appealing a ruling in which a district court allowed review of a woman's communications with a southern Minnesota sexual assault advocacy group in a criminal case.

The groups say any review of their confidential records has a chilling effect on a victim's willingness to report an assault.

"We know what happens when people are able to get access to their records: Victims stop reporting," said Rana Alexander, who argued the case before the Supreme Court as executive director of Standpoint, which provides legal services to assault victims.

Courts sometimes rule 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 they are relevant to the case.

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 notes, memoranda, records, reports, or any other documentation concerning the [victim] generated between 2014 and present."

Jennifer Shabel, the attorney for the defendant, argues that the records are needed to give her client a complete defense.

"Every defendant is guaranteed the right to due process under the federal and state constitutions," she said, adding that right means the court can review "confidential and privileged records that may assist in his defense."

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 their consent. The law mirrored confidentiality language that also applied to therapists, chemical dependency counselors, members of the clergy and others.

Calls to review confidential communications occur most frequently in sexual assault cases, said state Rep. Kelly Moller, DFL-Shoreview, who works as an assistant Hennepin County Attorney. She co-wrote an amicus brief from the Minnesota County Attorneys Association backing the position of sexual assault advocacy groups.

"It goes back to this inherent mistrust of victims," Moller said, adding that the burden can sometimes cause victims to back out of legal action. "If the victims don't cooperate, we can't prosecute a case. Not only do you have victims who might not report; you have victims who have their privileged information disclosed who say, 'Look, I'm done with this. It's more important for me to heal.' "

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.

"We don't investigate if a crime occurred; that's not our role, and we're not therapists," said Alexander, who has been defending sexual assault counseling groups for years to preserve confidentiality for victims.

Protecting confidentiality is directly tied to whether people seek help, she said. In 1981, a Pennsylvania court ruled that there are limits to privilege in a criminal rape case. After that, Alexander said, there was an increase in victims asking for their records back from advocacy groups and a drop in people reporting sexual assault.

"We put them in this situation where they have to decide whether to report to local law enforcement or are they going to seek help from their local community advocates," she said. "If they do both, their records are going to end up in the hands of the defense."

A ruling is pending from the Minnesota Supreme Court after both sides made their arguments in April. Alexander said they've been waiting years for a case to make its way to the Supreme Court to provide clarity on the law.

In her role as a state legislator, Moller said she'll be ready if the justices find the intent of the Legislature was murky.

"I'm anxiously awaiting a decision," she said. "If they say the statutes aren't clear, then that's where I would be ready to draft a bill to add any clarity that might be needed."