Lead Opinion
delivered the opinion of the court:
Fоllowing 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 (
The defendant does not contest the sufficiency of the evidence of his guilt, and that evidence may be summarized briefly. The offenses in question occurred in Rock Island on July 18, 1985. The complaining witness, a 26-year-old woman, was abducted from in front of her home around three o’clock that morning by the defendant, who forced her into a car and drove off. The defendant told the victim that he had a gun, and he compelled her to perform oral sex. The defendant eventually drove to a park in the area, where he raped the victim. The defendant later released her near a convenience store, and she told the sales clerk what had happened. The victim was then taken to a local hospital. There, she was shown a photographic array by police, and she identified the defendant as her attacker. The defendant was arrested at his home following the identification. He testified at trial, and he said that the sexual acts were consensual and that afterwards the victim became upset when he refused to give her money.
The sole issue raised by the defendant in this appeal concerns the constitutionality of the statutory privilege for communications made to rape crisis counselors. (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 802.1.) The Illinois Coalition Against Sexual Assault has filed a brief as amicus curiae in support of the provision. Section 8 — 802.1 of the Code of Civil Procedure provides, in its entirety:
“(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 psychological 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 advocacy. 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, whо was the rape crisis counselor assisting the victim. They contended that the victim’s communications with Dittmer were absolutely privileged under section 8 — 802.1 and therefore could not be disclosed without the victim’s consent, which she had not given. A copy of the subpoena does not appear in the record in this case; according to the circuit judge’s order, the defendant sought production of “ ‘all records, reports, notes, memoranda, statements, oral, recorded, or written, and any and all other documents concerning the alleged assault upon the witness.’ ” A hearing was conducted on the matter, and at that time counsel narrowed the scope of his request for information, indicating that he was seeking information that could be used for impeachment purposes. At the hearing, the State presented testimony from Berlinda Tyler-Jami-son, the program director, and from Joni Dittmer, the counselor in this case, regarding the operation and services of the Quad City Counseling Program. In her testimony, Joni Dittmer explained that she had told the victim that the counseling services were free and confidential. Dittmer said that part of her assistance involved what she termed legal advocacy, which, she explained, meant that she helped the victim keep track of the legal proceedings in the case and would attend court sessions with her.
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 thе meaning of section 8 — 802.1(b)(3). The court also found that at no time had the victim consented to Dittmer’s disclosure of any of those communications. The circuit judge also rejected the defendant’s argument that the statute was unconstitutional. The judge noted that the victim in this case would be testifying in court and therefore subject to cross-examination. For those reasons, the court did not believe that the communications at issue here represented “a significant or irreplaceable means of impeaching her as a government witness.” The judge concluded that there was no substantial conflict in this case between the statutory privilege and the defendant’s right to conduct a defense to the charges against him. The circuit judge therefore quashed the subpoena. The appellate court affirmed the trial court’s judgment, rejecting the defendant’s challenge to the constitutionality of section 8 — 802.1.
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. (U.S. Const., amends. VI, XIV; Pointer v. Texas (1965),
-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 cоurts have relied on Davis v. Alaska (1974),
In Davis v. Alaska (1974),
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 not 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),
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),
“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 “[bjecause 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.
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,
“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.” (Emphasis in original.) (Ritchie,480 U.S. at 58 ,94 L. Ed. 2d at 58 , 107 S. Gt. 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,
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 merеly 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 victims is clear. The stated purpose of the statute is as follows:
“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. (
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 likely result in the disclosure of any material useful to an accused.
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 impeachment, 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),
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 such an intrusion. The victim in this case was told that the services of the Quad City Counseling Program were both free and confidential, but under the dissent’s view that advice would no longer be appropriate — a special admonition would become necessary, to accommodate the very real possibility that a judge later would be examining the records of the counseling sessions. This, we believe, would seriously undermine the valuable, beneficial services of those programs that are within the protection of the statute.
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),
For the reasons stated, the judgment of the appellate court is affirmed.
Judgment affirmed.
Dissenting Opinion
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 a powerful rape shield law (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7), protecting the victim from humiliating accusations and inquiries into her past sexual history - as the price for testifying in a rape case. To further alleviate the duress of victims of rape, the legislature enacted the statute in issue in this case (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 802.1), absolutely prohibiting disclosure of communications between rape victims and rape counselors unless the victim consents. In its zeal to erase the legal indignities suffered by victims of rape in the past, however, I believe the legislature has gone too far. To deem all communications between victim and counselor absolutely privileged impermissibly impinges upon a defendant’s constitutional rights to due process of law and confrontation of the witnesses against him. A balance must be struck between the rights of the accuser and the rights of the accused, in which the victim is shielded from needless intrusions into the rape-counseling process, without denying the defendant the right to discover and utilize information tending to exculpate him. Allowing, at a minimum, in camera inspection by the trial court of the communications between the rape crisis counselor and the victim would achieve the balance necessary to protect the interests of both parties.
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 limited and construed. See 8 J. Wigmore, Evidence in Trials at Common Law §2291, at 554 (1961) (“privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative, its obstruction is plain and concrete. *** It ought to be strictly confined within the narrowest possible limits ***”); E. Cleary, McCormick on Evidence §79, at 192 (3d ed. 1984) (“privileges in general *** are inept and clumsy devices for promoting the policies they profess to serve, but are extremely effective as stumbling blocks to obstruct the attainment of justice ***, the movement should be toward restriction of these devices rather than their expansion”); United States v. Nixon (1974),
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 statutue providing for in camera review (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 8 — 802.1(c))), it is not strong enough to sustain an absolute privilege which renders meaningless the defendant's constitutional rights.
Based on the due process clause of the fourteenth amendment, the United States Supreme Court has repeatedly refused to restrict a criminal defendant’s rights to obtain or introduce potentially exculpatory evidence. (See, e.g., Wardius v. Oregon (1973),
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),
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 privilege. (Ritchie,
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 defendant’s] claim of innocence, because neither the prosecution nor defense counsel has seen the information.” (Ritchie,
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),
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 pretrial discovery of relevant information pertaining to the witness, the guarantee of the opportunity for effective cross-ex-animation found in the confrontation clause is rendered meaningless. Justice Pоwell felt that in some cases simply cross-examining the witness at trial, without the benefit of specific information gained through pretrial discovery which could be used for impeachment, would be a useless exercise. In fact, if the defense counsel continued merely cross-examining the witness at length in such a situation, “the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness,” leaving the defendant in a worse position than if no cross-examination at all were available. Ritchie,
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),
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 had previously given to the rape-counseling service. Therefore, by denying defendant pretrial access to the record, the defendant was denied even the opportunity for effective cross-examination in violation of the sixth amendment. Also, it is significant that in this case, as in Davis, the witness protected by the privilege was the crucial witness in the trial, upon whose testimony the jury was likely to reach its verdict. Denial of the opportunity for effective cross-examination of this crucial witness unquestionably could have impeded the defendant’s ability to present a defense.
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 counseling 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 рrovide a source of impeachment ***. *** [Defendant here has offered no reason to believe that the victim’s counseling records would provide a source of impeaching material ***.” (
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 whát 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 than 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 pоssibility 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 would be limited to impeachment of the witness based on inconsistencies between the facts related to the counseling service and later versions of those same facts. There can be no embarrassing cross-examination about the witness’ past sexual history, as such cross-examination is prohibited by the Illinois rape shield law. Thus, the only likely embarrassment and damаge to reputation the witness might suffer as a result of defendant’s cross-examination based on the protected records is damage to the witness’ reputation for veracity or bias. A State witness in a criminal trial should never be shielded from this type of damage, as such damage is the very essence of effective cross-examination. It has always been permissible and critical to the defense in a criminal trial to draw into question the witness’ credibility.
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),
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),
The majority rejects in camera review, contending that “to abrogate the privilege in this case would require its abrogation in every case.” (
In addition, the concern that in camera review of the counseling records would negatively affect the therapeutic relationship between the victim and the counselor is not well fоunded. 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 be looking for, and disclosing to the defendant if necessary, only the facts of the alleged incident as communicated by the victim to the counselor. Such a minimal intrusion should have little, if any, chilling effect on the therapeutic relationship.
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, the majority concludes that “the privilеge was [not] required to be breached in this case.” (Emphasis added.) (
For these reasons, I respectfully dissent. I believe that section 8 — 802.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 802.1) is unconstitutional and that defendant is entitled, at a minimum, to an in camera inspection by the trial court of the rape counseling service’s records. If the in camera review revealed pertinent information, defendant would be entitled to a new trial.