THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, v. LESLIE FOGGY, Appellant.
No. 64573
Supreme Court of Illinois
February 11, 1988
121 Ill. 2d 337
Reversed and remanded.
JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.
Opinion filed February 11, 1988.
Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Kenneth A. Fedinets, Assistant Attorney General, of Chicago, of counsel), for the People.
Judy L. Hogan, of Springfield, for amicus curiae Illinois Coalition Against Sexual Assault.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Rock Island County, the defendant, Leslie Foggy, was convicted of aggravated criminal sexual assault and unlawful restraint. The trial judge sentenced the defendant to concurrent 30-year and 3-year terms of imprisonment for those offenses. The appellate court affirmed the judgment (149 Ill. App. 3d 599), and we allowed the defendant‘s petition for leave to appeal (
The defendant does not contest the sufficiency of the evidence of his guilt, and that evidence may be summa-
The sole issue raised by the defendant in this appeal concerns the constitutionality of the statutory privilege for communications made to rape crisis counselors. (
“(a) Purpose. This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. On or after July 1, 1984, ‘rape’ means an act of forced sexual penetration or sexual conduct, as defined in Section 12-12 of the Criminal Code of 1961, as amended, including acts prohibited under Sections 12-13 through 12-16 of the Criminal Code of 1961, as amended. Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psycho-
logical support necessary to report the crime and aid police in preventing future crimes. (b) Definitions. As used in this Act: (1) ‘Rape crisis organization’ means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse.
(2) ‘Rape crisis counselor’ means a person who is employed in any organization or association defined as a rape crisis organization under this Section, who is a psychologist, social worker or a volunteer who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization.
(3) ‘Confidential communication’ means any communication between an alleged victim of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse or an attempt to commit any such offense and a rape crisis counselor in the course of providing information, counseling and advоcacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided.
(c) Confidentiality. No rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the consent of the victim.
(d) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor.”
Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1 .
In the aftermath of the assault, the victim sought and obtained counseling from the Quad City Rape/Sexual Assault Counseling Program. Before trial, the defendant issued a subpoena duces tecum on that organization seeking information regarding the complaining witness. Motions to quash were filed by the State and by Joni Dittmer, who
The circuit judge quashed the subpoena, ruling that the communications between Dittmer and the victim were protected from disclosure by the statutory privilege and that the statute was constitutional. Specifically, the circuit judge found that the Quad City Counseling Program was a rape crisis organization within the meaning of section 8-802.1(b)(1), that Dittmer was a rape crisis counselor within the meaning of section 8-802.1(b)(2), and that Dittmer and the victim had had six separate conversations and that each one was a confidential communication within the meaning of section 8-802.1(b)(3). The court also found that at no time had the victim con-
The defendant renews here his argument that the privilege accorded by section 8-802.1 to communications between sexual assault victims and counselors violates his Federal constitutional rights to due process and to confront the witnesses against him. (
In support of his argument, the defendant cites the decisions of other courts that have refused to enforce, or have refused to recognize, an absolute privilege for communications made by sexual assault victims to counselors. In addition to applying their own precedents concerning privileges, those courts have relied on Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105,
In Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, the Court found a violation of the defendant‘s confrontation right in a prohibition on certain impeachment. Before trial in that case, the prosecution requested a protective order to preclude defense counsel from cross-examining one оf the State‘s principal witnesses regarding his juvenile record. Defense counsel argued that the information would be relevant to show possible bias on the witness’ part in assisting the police in the matter. The trial judge granted the protective order, relying on State provisions that generally precluded use of juvenile records in judicial proceedings. At trial, defense counsel asked the witness whether he was biased in the State‘s favor but, consistent with the trial judge‘s ruling, did not make any inquiry concerning the witness’ juvenile record. The United States Supreme Court reversed the defendant‘s conviction. The Court did not believe that
Discussing Davis, one commentator has noted:
“In the first instance, it is probable that the defendant‘s ability to challenge claims of privilege as impairing his ‘right to present a defense’ will to some extent be dependent upon the criticality to that defense of the matter protected by the privilege. In Davis, the privileged matter in effect represented a significant and irreplaceable means of impeaching the chief prosecution witness. By contrast, where the privileged matter desired is of significantly lesser probative force or simply cumulative, its denial to the defendant has been held nоt to violate the constitutional guarantees.” (McCormick, Evidence § 74.2, at 179 (3d ed. 1984).)
In quashing the subpoena, the circuit judge concluded that the material requested by the defendant in this case did not represent critical or irreplaceable information, citing the quoted passage.
A similar question was considered recently in Pennsylvania v. Ritchie (1987), 480 U.S. 39, 94 L. Ed. 2d 40, 107 S. Ct. 989, which is cited by both the State and the defendant in support of their arguments here. In that case, which involved a confidentiality statute, a plurality of the Court rejected a confrontation clause argument like that made by the defendant in this case. The Court
The United States Supreme Court considered Ritchie‘s claim under both the confrontation and compulsory process clauses. Ritchie argued that nondisclosure of the State agency‘s file interfered with his confrontation right because the files might have contained information, such as inconsistent statements, that would have been useful in cross-examining the complaining witness. The Pennsylvania Supreme Court had agreed with Ritchie, relying in part on Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105. The plurality in Ritchie characterized confrontation as essentially a trial right and believed that it would be satisfied by the defendant‘s physically facing the witnesses against him and by counsel‘s cross-examination of them. The plurality opinion said:
“If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally-compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right of confrontation is a trial right designed to prevent improper restriction on the types of questions that defense counsel may ask during cross-examination. [Citations.] The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information
that might be useful in contradicting unfavorable testimony.” (Emphasis in original.) (Ritchie, 480 U.S. at 52-53, 94 L. Ed. 2d at 54, 107 S. Ct. at 999.)
The plurality concluded that “[b]ecause defense counsel was able to cross-examine all of the trial witnesses fully,” the failure to disclose the agency‘s records did not violate Ritchie‘s confrontation right. 480 U.S. at 54, 94 L. Ed. 2d at 55-56, 107 S. Ct. at 1000.
In Ritchie the Supreme Court also considered the defendant‘s argument that nondisclosure of the agency‘s file violated his sixth amendment guarantee of compulsory process. Analyzing that question in terms of due process, the Court concluded that, under the Pennsylvania statute at issue in that case, the defendant was entitled to have the trial judge conduct an in camera inspection of the records at issue. In Ritchie‘s case, neither the prosecution nor the defense had seen the information, and the trial judge had not reviewed the entire file. Because the privilege was not absolute, the Court rejected the State‘s argument that the statutory privilege would preclude an examination of the agency‘s records in the case. Citing the Pennsylvania statute that provides an absolute privilege for communications between sexual assault victims and their counselors, the Court noted that it was expressing “no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel.” (Emphasis in original.) (Ritchie, 480 U.S. at 57 & n.14, 94 L. Ed. 2d at 57 & n.14, 107 S. Ct. at 1002 & n.14.) Rather, the statutory privilege at issue was not absolute, and one exception permitted CYS to “disclose the reports to a ‘court of competent jurisdiction pursuant to a court order.‘” (Ritchie, 480 U.S. at 44, 94 L. Ed. 2d at 49, 107 S. Ct. at 995.) In light of that exception, the Supreme Court said:
“Given that the Pennsylvania legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is material to the defense of the accused.” (Emрhasis in original.) (Ritchie, 480 U.S. at 58, 94 L. Ed. 2d at 58, 107 S. Ct. at 1002.)
The Court did not believe, however, that defense counsel was entitled to review the file himself so that he could argue for the relevance of particular information. Rather, the Court held that an in camera inspection of the file by the trial judge would be sufficient. Ritchie, 480 U.S. at 60, 94 L. Ed. 2d at 59, 107 S. Ct. at 1003.
The privilege contained in section 8-802.1 is unqualified, and we are therefore met with an issue unresolved by Ritchie: whether an absolute privilege must yield to a criminal defendant‘s pretrial discovery request for otherwise privileged information that may provide material for use in cross-examining witnesses. Again, we note that the defendant here was requesting only an in camera inspection of the material, with disclosure limited to communications recounting the commission of the offenses. The defendant‘s request was merely general, however, and was not supported by any allegations that material useful to the defense of this case was likely to be found in the files of the Quad City Counseling Program. From the following analysis of the statutory privilege, we conclude that the defendant‘s suggested procedure was not constitutionally required in this case.
The legislature‘s intent in section 8-802.1 of the Code of Civil Procedure to protect the confidentiality of communications between sexual assault counselors and
“This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. *** Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes.” (
Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1(a) .)
Moreover, as the appellate court noted in this case, the legislature originally allowed only a qualified privilege for communications between sexual assault counselors and victims but later decided to strengthen the privilege and make it absolute. (149 Ill. App. 3d 599, 601-03.) The predecessor statute expressly provided for an in camera inspection of those records, in the manner urged by the defendant here. (See
We also find significant the contention of amicus that the role of rape crisis counselors is not to investigate the occurrence. Rather, the primary purpose of the counseling is to help the victim understand and resolve her feelings about the event. Thus, according to the amicus, an in camera inspection of counseling records would not
It is important to note that in this case the defendant‘s request for an in camera inspection of the counseling records was merely general; he did not allege that information may exist in the counseling files that would be subject to disclosure. Moreover, the defendant had access to the array of unprivileged statements made by the complaining witness to other persons following the commission of the offenses, including the nearly contemporaneous statements made by the victim to the store clerk, and also had available the victim‘s testimony at the preliminary hearing. Because of the strong policy of confidentiality expressed in section 8-802.1 and the absence of any indication by the defendant that the victim‘s communications with the counselor would provide a source of impeachmеnt, we do not believe that the privilege was required to be breached in this case. “The vague assertion that the victim may have made statements to her therapist that might possibly differ from the victim‘s anticipated trial testimony does not provide a sufficient basis to justify ignoring the victim‘s right to rely upon her statutory privilege.” (People v. District Court (Colo. 1986), 719 P.2d 722, 726; see also Commonwealth v. Two Juveniles (1986), 397 Mass. 261, 269, 491 N.E.2d 234, 239 (before in camera inspection of otherwise privileged sexual assault counseling records may be ordered, accused “must show a legitimate need for access to the communications“).) Under the circumstances present here, to abrogate the privilege in this case would require its abrogation in every case, and that we decline to do.
We note that under the theory proposed by the dissent, in every case a trial judge could become privy to all counseling records of a sexual assault victim, regardless of what was discussed in the counseling sessions and in the absence of any demonstrated need that would justify
In sum, section 8-802.1 of the Code of Civil Procedure evinces a strong public policy in favor of the confidentiality of communications between sexual assault victims and counselors. Unlike the defendant in Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, who knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and who had no other means of achieving that end, the defendant here has offered no reason to believe that the victim‘s counseling records would provide a source of impeaching material unavailable from other sources. We conclude that the defendant was not denied due process, nor was his confrontation right violated, by the trial judge‘s refusal in this case to conduct an in camera inspection of the victim‘s counseling records.
For the reasons stated, the judgment of the appellate court is affirmed.
Judgment affirmed.
JUSTICE SIMON, dissenting:
In the not so distant past a rape victim was forced to undergo an adjudicative ordeal equalling the horror of the original assault in order to bring her attacker to justice. (See Berger, Man‘s Trial, Woman‘s Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1 (1977).) Our legislature is to be commended for enacting
Most of the rules governing the conduct of litigation under our system of justice are designed to ensure that all relevant and reliable evidence is presented to the fact finder in an orderly manner so that there may be a true and fair resolution of each case. In contrast, privileges are designed to withhold certain evidence from the trier of fact, for the “protection of interests and relationships which *** are regarded as of sufficient social importance to justify some sacrifice of availability of evidence.” (E. Cleary, McCormick on Evidence § 72, at 171 (3d ed. 1984).) As exceptions to the general rule of admissibility of all relevant evidence, privileges should be strictly lim-
In determining which interests and relationships should be protected by privilege, and to what extent they should be protected, courts and legislatures must balance the State‘s interest in the privilege against the constraints the privilege places on the fair and effective administration of justice. In the present case, the State‘s interest in providing confidential counseling services to the victims of rape must be weighed against the defendant‘s constitutional rights to due process of law and to confrontation of witnesses against him. Although the State‘s interest in this case is a strong one and undoubtedly justifies a statute conferring some privilege protection on counseling records (such as the prior Illinois statute providing for in camera review (
Based on the due process clause of the fourteenth amendment, the United States Supreme Court has re-
Moreover, the withholding by the government of evidence “that is both favorable to the accused and material to guilt or punishment” violates a defendant‘s due process rights. (Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57, 94 L. Ed. 2d 40, 57, 107 S. Ct. 989, 1001; United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392;
The file at issue in Ritchie, however, was not protected by an absolute statutory privilege, but one which contemplated disclosure of the privileged information if so directed under court order. The Court specifically declined to express an opinion on what the result would be in a case where the information sought by the defendant was protected by an absolute statutory рrivilege. (Ritchie, 480 U.S. at 57 n.14, 94 L. Ed. 2d 57 n.14, 107 S. Ct. at 1002 n.14.) There is no indication, however, that
Furthermore, without review of the records, the threshold questions which determine whether a defendant‘s due process rights have been violated—whether there is evidence in the file favorable to the defendant and material to his guilt or innocence—cannot be answered. As in Ritchie, “it is impossible to say whether any information in the *** records may be relevant to [the defеndant‘s] claim of innocence, because neither the prosecution nor defense counsel has seen the information.” (Ritchie, 480 U.S. at 57, 94 L. Ed. 2d at 57, 107 S. Ct. at 1002.) Therefore, like the defendant in Ritchie, defendant should at the very least be given the opportunity to have the trial court review in camera the records in question to determine whether they contain any favorable or material information which the government would be obligated under due process principles to turn over to the defendant.
The second constitutional right of the defendant which may be impinged in a criminal proceeding by a witness’ invocation of a privilege against disclosure is the sixth amendment right of confrontation. This right guarantees a criminal defendant the right to confront the witnesses against him. An essential component of this right is the defendant‘s right to cross-examine the witness. (Delaware v. Fensterer (1985), 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (per curiam); Douglas v. Alabama (1965), 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct. 1074; Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) The right to cross-examine includes the right to test the truth and reliability of a witness’ testimony, and to call into question his motives, biases, and credibility. (United States v. Abel (1984), 469 U.S. 45, 83 L. Ed. 2d 450, 105 S. Ct. 465; Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531; Alford v. United States (1931), 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218; Greene v. McElroy (1959), 360 U.S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400.) Recognizing the critical function cross-examination serves in a criminal defense, the Supreme Court has “scrupulously guarded against ‘restrictions imposed by law or by the trial court on the scope of cross-examination.‘” (Ritchie, 480 U.S. at 66-67, 94 L. Ed. 2d at 63, 107 S. Ct. at 1007 (Brennan, J., dissenting), quoting Delaware v. Fensterer (1985), 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292.) The confrontation clause does not guarantee, of course, that the defendant‘s cross-examination will be effective, but only that defendant will be given “an opportunity for effective cross-examination.” (Emphasis in original.) Fensterer, 474 U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 295.
In Ritchie a majority of the Court could not agree on the effect of the confrontation clause on a defendant‘s right to pretrial discovery of privileged information concerning a government witness. A plurality of the Court thought that so long as a defendant is afforded full cross-examination of the witness at trial, the confrontation clause does not confer upon the defendant any rights to pretrial discovery to aid in that cross-examination. The view of Justices Powell and Brennan, however, was that unless the defendant is afforded рretrial discovery of relevant information pertaining to the witness, the guarantee of the opportunity for effective cross-ex-
Because the plurality‘s analysis of the confrontation clause issue in Ritchie does not constitute binding precedent, we must look to the Court‘s earlier cases on the clash between the confrontation clause and claims of privilege for guidance. This brings us to the well-known Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, in which the defendant sought to use a government witness’ juvenile record to impeach the witness during cross-examination. The State contended that the State‘s interest in protecting the anonymity of juvenile offenders outweighed the defendant‘s interest in cross-examination. The Court rejected this argument, holding that the defendant‘s sixth amendment right to confrontation outweighеd the State‘s interest in protect-
In this case, as in Davis, no amount of cross-examination of the witness could have been effective without access to and use of the privileged records. Without specific information from the records, defendant could not expose any inconsistencies in the witness’ story which may have been reflected in the version of the events she
The majority makes much of the fact that unlike Davis, where the defendant knew the contents of the privileged record prior to trial, in the present case the defendant cannot specifically state what information in the rape victim‘s counseling records would be useful in cross-examination: “The defendant‘s request was merely general *** and was not supported by any allegations that material useful to the defense of this case was likely to be found in the files ***. [Defendant‘s] request for an in camera inspection of the сounseling records was merely general; he did not allege that information may exist in counseling files that would be subject to disclosure. *** [There was no] indication by the defendant that the victim‘s communications with the counselor would provide a source of impeachment ***. [D]efendant here has offered no reason to believe that the victim‘s counseling records would provide a source of impeaching material ***.” (121 Ill. 2d at 347-50.) This approach locks the defendant into a perfect Catch-22 position: To gain access to the privileged records defendant must specifically allege what useful information may be contained in the records. However, defendant has no way of making these specific allegations until he has seen the contents of the records.
Defendant here has advanced as detailed and specific a theory of the case as he is capable of formulating without access to the records. He has explained his version of the facts and his theory as to why the victim‘s story differs from his, and has outlined exactly what type of information he seeks. Defendant seeks only “specific communications recounting the offense itself“—any statements made by the witness explaining her version of the events on the night in question—so that defendant may compare this version with her in-court testimony. Short of using powers of telepathy, defendant has no other method by which to gather more specific information about what might be in the counseling service‘s records and how this information could be useful to him. Defendant should not be penalized for not being as lucky as the defendant in Davis, who already knew the contents of the privileged records in issue.
Furthermore, the State interest in the asserted privilege which must be weighed against defendant‘s constitutional rights is no more compelling in this case thаn in Davis. In Davis, although the juvenile witness stood to suffer damage to his reputation and employment possibilities through the discovery of the protected juvenile records, the Court found this insufficient to overcome defendant‘s right to cross-examination. Here there is even less possibility than in Davis that the witness will be injured by disclosure of the privileged material. If the in camera procedure the defendant suggests were utilized, only the trial court would review the records, and upon review the court might find no information that it deemed necessary to disclose to the defendant. Even if the trial court were to find information that it felt should be disclosed to the defendant for use in cross-examination, it could pertain only to the facts of the incident, not to the witness’ feelings or any part of the counseling process. Similarly, the cross-examination using such information
In summary, when the defendant‘s rights to due process and confrontation are weighed against the State‘s interest in the absolute confidentiality of the witness’ records, it is clear to me that the State‘s interest must yield. The statute enacted by the legislature, cloaking communications between rape victims and rape counselors in an absolute privilege, is unconstitutional. Numerous other courts have reached similar conclusions. (See, e.g., In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; In re Pittsburgh Action Against Rape (1981), 454 Pa. 15, 428 A.2d 126; Advisory Opinion to the House of Representatives (R.I. 1983), 469 A.2d 1161; Commonwealth v. Two Juveniles (1986), 397 Mass. 261, 491 N.E.2d 234; People v. Pena (1985), 127 Misc. 2d 1057, 487 N.Y.S. 935.) In addition, the Supreme Court has made clear that blanket privileges restricting the admission of relevant evidence, such as the one imposed in this case, are disfavored. See, e.g., United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (rejecting absolute executive privilege); Trammel v. United States (1979), 445 U.S. 40,
This is not to say, however, that defendant should have unlimited access to the counseling records. The rights of both the victim and the defendant can be adequately protected by recognition of a more limited privilege under which records could be reviewed for relevant evidence in camera by the trial court only. Such a procedure ensures continued confidentiality for the victim while protecting defendant‘s rights to due process and confrontation. The Supreme Court has repeatedly endorsed the use of in camera proceedings as a means of simultaneously protecting sensitive information and the defendant‘s rights. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57, 94 L. Ed. 2d 40, 57, 107 S. Ct. 989, 1001; United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090.
The majority rejects in camera review, contending that “to abrogate the privilege in this case would require its abrogation in every case.” (121 Ill. 2d at 349.) This is undoubtedly true, as defendants would be sure to demand an in camera inspection of counseling records in every rape case, in the hope of obtaining information valuable in impeaching the witness. This is a small price to pay, however, to adequately protect the constitutional rights of a defendant whose liberty is at stake. Trial courts utilize in camera proceedings quite frequently, and any additional burden imposed on the trial courts is completely justified when viewed in light of the possible consequences to the defendant resulting from a rape conviction.
In addition, the concern that in camera review of the counseling records would negatively affect the therapeutic relationshiр between the victim and the counselor is not well founded. Neither the thoughts and feelings of the victim, nor the comments of the counselor, would be exposed as a result of an in camera review. The trial court would
Finally, although the majority opinion upholds the absolute statutory privilege for rape-counseling communications under the facts of this case, it appears to concede that the privilege is really only a limited one. Emphasizing that defendant failed to allege specific proof that the privileged records would provide a source of impeachment and that the defendant had access to other statements made by the witness which might be used for impeachment, thе majority concludes that “the privilege was [not] required to be breached in this case.” (Emphasis added.) (121 Ill. 2d at 349.) The majority‘s clear suggestion is that if, like the defendant in Davis, defendant “knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and *** had no other means of achieving that end,” defendant would be entitled to access to the privileged records. If, as the majority suggests, access to privileged records would be possible under these circumstances, then it should be equally available to all defendants. Otherwise the privilege would discriminate unfairly against defendants who are not fortunate enough to have access before trial to protected records.
For these reasons, I respectfully dissent. I believe that section 8-802.1 of the Code of Civil Procedure (