Marsy’s Law Could Provide Better Victim Privacy

In Iowa, the law grants prosecutors the right to request that a minor provide deposition testimony outside the presence of the defendant per Iowa Rule of Criminal Procedure 2.13(2)(b) and Iowa Code § 915.38(1)(a). The problem is that, for the Court to grant this request, prosecutors must prove to the Court that the minor would suffer trauma and suffer from an impaired ability to communicate if forced to testify in the physical presence of the defendant. This opens the door to defense attorneys seeking and obtaining the victim’s counseling records.

First of all, any claim that a minor would not suffer such a trauma in having to testify in the physical presence of the defendant is ridiculous. Common sense should clearly inform anyone that a child sex abuse victim would suffer from trauma when being forced to sit in the same room as their abuser. Second, to meet the requirements of the statute, prosecutors must typically provide the Court with an expert, be it a counselor or psychologist, who would provide the proof needed to show that the minor would suffer from further trauma and suffer an impaired ability to communicate.  

Most defense attorneys, alerted to the existence of counseling or mental health records, will then seek to obtain those records pursuant to Iowa Code § 622.10(4)(a)(2)(b). This is unfortunate seeing as that, per State v. Barrett, 924 N.W.2d 878 (Iowa Ct. App. 2018), neither the federal nor state constitution requires that defense counsel be provided access to such privileged records. Though our statutes require that defense attorneys show the Court a good faith reasonable probability that counseling records contain specific exculpatory information not available from any other source, it is rare that our Courts actually require this before disclosing the entirety of these records to the defendant. The reason is that “exculpatory information” is incredibly broad, meaning anything that “tends to ‘establish a criminal defendant’s innocence.’” As Justice McDonald noted in Barrett, judges are not in a position to know what could be or is not exculpatory. This, in practice, leads many judges to over-disclose confidential records out of a fear of withholding something that is potentially exculpatory. The unfortunate truth is that, once records are disclosed to the defendant, the defendant does not “un-know” the records. Even if a higher Court were to overrule the previous decision, the harm is done. The victim now knows their privacy meant nothing to the Courts and that the defendant, in addition to criminally violating the victim, was able to further violate the victim’s privacy with court approval.

Marsy’s Law carries a provision preventing the release of a victim’s confidential information or records to criminal defendants. This right would also not come at the expense of a defendant’s constitutional rights. Our Iowa Supreme Court, in State v. Thompson, 836 N.W.2d 470 (Iowa 2013), approved of the Indiana Supreme Court analysis holding that an absolute privilege to confidential communications was constitutional. The Iowa Supreme Court correctly noted that the only reason why Iowa victims’ privileged communications are accessible by a defendant is because our legislature weighed a defendant’s right to present a complete defense more heavily against the “compelling interest in serving the psychological and emotional needs of victims of domestic violence and sexual abuse.” Id. at 489.

Reuben Neff

Wapello County Attorney

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