Wendy Murphy

(WOMENSENEWS)–Next Wednesday, the Women’s Resource Center of Lawrence, Mass., will be in the unenviable position of having to pay a $500-a-day fine or turn over information about a 16-year-old rape victim’s counseling sessions to the defendant’s lawyers.

It’s an astonishing turn of events, but perfectly legal, that not only outrages the Center’s lawyer, victim’s rights activist Wendy J. Murphy, but has inspired the Boston lawyer to propose a creative alternative to the contempt sanction.

Why not allow 500 women to consecutively spend one day in jail to discharge the Center’s contempt citation? Isn’t that fairer and more consistent with the doctrine of equal protection under the law, argues Murphy, than imposing a fine on a nonprofit group that can barely pay its bills? “We cannot afford even one day of such a huge fine,” she says.

The plan is to call these women “The Boston 500” and to present the Massachusetts Appeals Court with a pledge sheet listing the names of volunteers who agree to be incarcerated. “No, it’s not a publicity stunt,” says Murphy, who concedes that the appellate court may view her proposal as an insufficiently “painful” punishment for defying a court order.

She isn’t particularly bothered by that criticism.

“The whole point is that it shouldn’t be painful,” she says. “When other third parties stand up for their rights like this, the courts in almost every other jurisdiction regularly say, ‘Fine, we respect you. Go get your ruling and we’ll suspend the fine.'”

Within Hours, 15 Volunteer for Jail

The Center’s fine has been suspended since it was first ordered on Jan. 2, but only for a three-week period. “I don’t think [judges] like being told that their law is sexist,” is how Murphy explains the comparatively harsher treatment received by her group.

Within hours of Murphy’s initial announcement of her plan via e-mail, 15 women from all over the country had volunteered to go to jail on behalf of the center, said Diane Rosenfeld, who, like Murphy, is a visiting professor at Harvard Law School.

This issue arises in Massachusetts Superior Court of Essex County in the prosecution of Manuel Valverde, accused of the rape of an unidentified teen-ager. Valverde is represented by public defender Paul R. Rudof of Salem, Mass., who was contacted for this story, but did not return phone calls.

According to Murphy, Rudof learned of the counseling records from an investigator’s interview of the victim’s grandmother. The grandmother advised him that the victim had received treatment from the Women’s Resource Center, which supplies services to victims of rape, domestic violence and child abuse.

Murphy alleges that the grandmother only cooperated with the investigator because she had been worn down by repeated phone calls.

Moreover, investigator told the grandmother she should sign the consent form because the court would order release of the record anyway, says Murphy. Nevertheless, the grandmother refused.

The investigator’s statements were misleading because victims’ counseling records from rape-crisis centers are privileged under Massachusetts law. The defendant can defeat the privilege claim only if he can make a strong case that the information is necessary to his defense, says Randy Chapman, a criminal defense lawyer in Chelsea, Mass.

Victim’s Attorney Argues Law Creates Incentive to Encroach Into Private Lives

Rudof filed a motion to obtain the records, which was granted by Judge Peter W. Agnes Jr. on Dec. 23. On Dec. 30, the center, which is supported by private funding and state grants, went to court to contest the order. In an order dated Jan. 2, the court ruled that the defendant was entitled to the dates and times that the victim received counseling and indicated the Center would be fined if it did not comply with the order.

According to Murphy, the grandmother is devastated by the knowledge that “she has caused her granddaughter to suffer such an invasion of privacy.” The victim has stopped counseling, has lost weight and is taking as many as four showers a day, says Murphy. “The victim needs counseling but in light of this situation, it is highly unlikely she will get the help she desperately needs.”

The Center has not decided what it will do if it has to pay the fine, says Samantha Zellinger, lead advocate for the organization. She cannot recall another instance in her three years with the center in which it has been forced by a court to turn over records against the victim’s wishes.

The crux of the argument that Murphy will make on appeal is that Massachusetts courts need to adopt a much more restrictive reading of the court rule that grants the defendants the right to subpoena documents “within a reasonable time” prior to trial.

“I’m arguing that Rule 17 [of the Massachusetts Criminal Law Procedure] creates an incentive to encroach into the private space of people because of the reward,” she says. As long as lawyers know that they can easily obtain documents, they will continue employing investigators who will badger victims to find out about the existence of counseling records, contends Murphy.

“I want the court to say that we are going to dismantle the incentive in the system for people to act like this. People need to be encouraged to participate in the criminal justice system. They shouldn’t be penalized by the system,” she says.

Attorney Asks for Contempt Order to Make a Point

Murphy claims that judges are granting subpoenas so liberally that they’ve unwittingly created something akin to the discovery phase of civil litigation. Within the civil system, litigants have few restraints on their power to obtain information that are likely to result in usable evidence.

Not so in the criminal system, where “fishing expeditions” of that sort are discouraged, because of the potential to trample victims’ rights in the process.

Consistent with that, subpoenas should only be granted when a trial is imminent and the information sought is clearly identifiable and can be used as evidence, argues Murphy. No trial date has yet been set in the Valverde case, she adds.

Chapman agrees with Murphy that the document sought should have evidentiary value, but he’s not sure it’s her place to make that argument. “Normally, third parties wouldn’t be raising the relevancy issue. That’s something I would expect to hear from the prosecutor.”

Murphy, however, is very comfortable challenging the status quo. Because she specifically wanted a test case to address Rule 17 abuses, she asked Judge Agnes to hold her client in contempt, although she requested a much more manageable fine of $100 a day rather than what he chose to assess.

Murphy says the alleged attempt to mislead the grandmother is not an isolated incident. She says she knows of an instance in which investigatory tactics were so intrusive that the mother of a rape victim asked a prosecutor to drop the case. “It was a statutory rape case and there was DNA evidence of rape,” says Murphy. “And yet they were asking embarrassing questions about the victim’s parents. That shouldn’t be happening.”

Stephanie B. Goldberg is a Chicago writer who frequently covers women and the law.

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