Commentary Law and Policy

When a Fair Trial Isn’t: Violations of Victims’ Privacy in the Legal System

Alison Safran

The Dwyer protocol is meant to protect a defendant’s constitutional right to a fair trial by allowing him or her to uncover exculpatory evidence that could impeach a victim’s credibility—such as a victim’s therapy or medical records. The result is that perpetrators get their privacy, while survivors are often robbed of theirs.

In December 2006, the Supreme Judicial Court of Massachusetts announced a new protocol allowing defendants in the state to “inspect statutorily privileged records that are in the possession of a third party.” Called the Dwyer protocol, it is meant to protect a defendant’s constitutional right to a fair trial by allowing him or her to uncover exculpatory evidence that could impeach a victim’s credibility—such as a victim’s therapy or medical records, in a case in which those records might show a victim has a history of fabricating stories or is otherwise mentally unstable.

In a recent case in which the Dwyer protocol was used, a convicted rapist named Tyrone Sealy attempted to appeal his conviction based on the notion that his victim might have motive to lie about being raped in order to avoid deportation. Sealy sought the victim’s legal records from the Boston Area Rape Crisis Center—records that are protected by attorney-client privilege and considered private.

I’ve been in similar shoes to the survivor in the above story, and our cases highlight why people don’t report after being victimized: The system is invasive from start to finish. Perpetrators get their privacy, while survivors, from the initial assault to the courtroom and beyond, are often robbed of theirs.

It’s worth noting that this type of violation of a victim’s rights doesn’t just happen in Massachusetts: It happens in Colorado, in Iowa, in the military, and elsewhere. In many cases in which therapy records are sought, the defendant in question was seeking the records of someone he had allegedly sexually assaulted or had a history of domestic violence towards. Couple this with the fact that society has historically questioned the motives of victims of violence who come forward, and it’s no wonder victims have no faith in the legal system.

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Advocates who oppose the protocol are correct in assuming that the precedent set in the Sealy case could discourage other victims from seeking services or coming forward. If I had known protocols like Dwyer existed, I would not have sought the counseling I needed to be able to process my assault and to handle the legal process.

During my senior year of high school, I was sexually assaulted by a friend. I initially told a few friends and my brother, but refused to be deterred from going about my senior year in the way a “normal,” or non-victimized, person would. However, beginning as soon as the night after the assault, I began falling asleep every night to the sounds of a TV show to distract myself from the invasive thoughts about the assault that kept me awake.

As the year progressed, I increasingly experienced nightmares and flashbacks of the assault. During the day, I tried to distract myself by focusing on college applications and schoolwork, but was often paralyzed in the middle of class by flashbacks, anxiety attacks, and migraines due to my overwhelming anxiety. Part of this anxiety came from the fact that my attacker continued to harass me with texts, instant messages, Facebook messages, and phone calls; this made it even harder to ignore the assault, as every contact from him was a reminder of what he’d done.

This anxiety was unlike anything I’d ever experienced before and was, by definition, post-trauma. Yet, I had no idea what post-traumatic stress disorder (PTSD) was, and felt I must be going crazy, being consumed by replaying the assault. It felt like I was re-experiencing it by choice; I had no idea that, by nature, those who’ve experienced trauma often also experience uncontrollably invasive thoughts and memories about the trauma.

It wasn’t until six months after the initial assault that I sought the type of therapy I needed and began to understand the impacts the assault and harassment were having on my mental health. It was only then that I began to understand that none of it was my fault—not the assault, not the continued harassment, and not the repeated reliving of the assault. Thanks to these realizations, and having heard that my perpetrator had assaulted and sexually harassed other people over many years, I decided I was ready to report my assault to police and try to obtain a restraining order.

I never would have expected that just by being in therapy, I was giving my perpetrator and his lawyer an opportunity to make me look like a liar. When the Dwyer motion was filed in my case, I felt simultaneously self-righteous and scared. Nothing I’d said in therapy could give anyone a reason to think I’d lied about being assaulted, as the reason I’d sought out therapy in the first place was because of the assault. However, it was also a huge violation of my privacy for my perpetrator to be able to try to access those records. Any reasonable person who was not only assaulted but chose to pursue the legal process might need therapy in the same way I needed it. Having to retell the story of your trauma repeatedly while sharing a small courtroom with your attacker and his family would likely exacerbate any victim’s PTSD, as it did mine.

During this year of post-trauma pre-trial, I attended Boston University. My therapist’s office was within walking distance, and I remember my sweaty palms, rapid heart rate, and utter fear walking down the street to his office. I tried desperately to hold onto my last shreds of privacy: I wore sunglasses to hide my face, and I took different routes each time to try and avoid anyone being able to establish a pattern or discern where I was going. Ironically and painfully, being the victim of a crime ended up making me feel like a criminal, as if I should be punished for seeking help. It wasn’t until later that I encountered my perpetrator and his mother in the very building I’d been going to therapy all along. In addition to already seeking to obtain my records, this was yet another invasion of privacy that I believe was meant to intimidate me into not seeking the help I needed.

Not every assailant will do this, but Dwyer opens the door for the possibility, as the protocol necessitates that a defendant receive the “name and address of the custodian of the records” (in my case, the therapist). Combined with my perpetrator’s assault on my body, harassment of my being, and invasion of my privacy by seeking my therapy records, his decision to see a therapist in my building served to continue to intimidate me and prevent me from getting help. He stole all of my safe spaces.

In the moments during an assault, you are stripped of your privacy, your autonomy, and control over your own body. Once you report to police, if the district attorney goes forward in prosecuting, your lack of control is calmed by a cautiously optimistic hope that you’ll get justice and that your perpetrator will be punished. I spent the duration of my assault trying to get him to stop. I spent the entire legal process, and every day since, trying to regain control over my body and my safe spaces. Sexual assault and domestic violence victims need to be able to access services. There is no constitutionally just reason for a violent perpetrator to be legally allowed to examine the private mental health records of someone whose mental health state is damaged because of that perpetrator’s actions.

My perpetrator has never had to work hard to determine who is a safe person or whether a space can be safe for him; instead, he continues to invade mine. And our legal system allows him to do so.

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