Minnesota Supreme Court protects sexual assault victim counseling records

The court ruled victims' records are protected under state law, even in criminal cases where a judge can review records privately to determine if they are relevant to a case.

The Minnesota Supreme Court meets at the State Capitol in St. Paul on Monday, Aug. 28, 2017.
The Minnesota Supreme Court meets at the State Capitol in St. Paul on Monday, Aug. 28, 2017.
Pool photo / Leila Navidi
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ST. PAUL — The Minnesota Supreme Court has reinforced protection for sexual assault victims' counseling records in criminal cases, clarifying an existing state law protecting client-counselor communications and documents.

In an opinion issued Wednesday, July 13, Justice Natalie E. Hudson ruled that even in a criminal proceeding, a victim’s right to keep counseling records confidential is protected under state law. The ruling blocks a lower court's order for a counseling center to turn over its records about a victim in a sexual assault case. The defense had requested a judge review the records for information relevant to the case.

Hudson said it was "clearly unreasonable" for the center to comply with the subpoena as it would be banned by a 1982 state law. Privacy of counseling records is key to protecting and helping victims, she wrote, and state law is clear disclosing records would require the victim’s consent.

“To seek a counselor’s assistance, victims — who may face serious safety concerns and other vulnerabilities — must feel comfortable sharing personal information,” she said in the ruling. “Failure to ensure victim privacy and confidentiality could therefore result in a chilling effect on the willingness of victims to seek support.”

The ruling stemmed from a 2019 Minnesota sexual assault case where the defendant attempted to have a district court judge review the confidential counseling records of the alleged victim. The process is called in camera review, where a judge views private or sensitive records and determines whether the information is relevant to a case.


A lower court denied a counseling center’s attempt to keep the alleged victim’s records private, but the center appealed the decision to the court of appeals before reaching the state supreme court.

In overturning the lower court decisions, Hudson wrote that even in camera review of sexual assault counselor records would intrude upon victim privacy and “harm the vital confidentiality between victim and counselor.”

Further, she ruled that in-camera review is not part of a criminal defendant’s right to confront his or her accuser. While a defendant can confront accusers through cross-examination of witnesses, there is no constitutional guarantee of access to protected records, Hudson wrote, citing previous state and U.S. Supreme Court cases.

The Minnesota County Attorneys Association, which represents elected prosecutors in the state’s 87 counties backed blocking court review of the private records. In an amicus curiae brief filed in the case , the group said Minnesota judges often default to in camera review of confidential documents — even if it’s unclear whether the review will yield any relevant information.

“The lower courts’ treatment of the victim’s privileged information in this case is unfortunately not unique in Minnesota, they wrote. “Other district courts have similarly ordered ICR without regard to victims’ rights and based on an inadequate showing by the defense.”

Alex Derosier covers Minnesota breaking news and state government for Forum News Service.
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