September 20, 2023

Toward a More Meaningful Vision of Victim Privacy

The National Crime Victim Law Conference is always inspiring and invigorating. No man is an island, but attorneys and advocates doing victim’s rights work can often feel alone, so the conference is a needed reminder of the amazing network of folks who do this work throughout the country.

At this year’s conference during a session about recent litigation, Meg Garvin shared a recent decision from the Wisconsin Supreme Court—State v. Johnson

If you’re not familiar with that decision, it’s remarkable in that the Wisconsin Supreme Court overturned decades of precedent that had required crime victims to choose between justice and privacy. 

Specifically, a case called Shiffra held that, upon a defense showing, victims could be forced to turn over their privileged medical and counseling records—despite the lack of applicable exceptions in the statutory privileges and constitutional rights protecting these records. Failure to comply would lead to the victim being prohibited from providing testimony. 

As Meg shared about this case, OCVJC Senior Staff Attorney Latina Bailey looked over at me and I could tell we were thinking the same thing: “We want this for Ohio victims.”

After we returned from the conference, we immediately began an overhaul of our motion to quash template and we waited for the first opportunity and the first willing client. 

The opportunity came around shortly after the conference, in the form of an amazing client who—like so many of the incredible, resilient humans we as victim’s attorneys are so lucky to meet and work alongside—wanted to pursue this avenue not just for herself, but for every other victim like her. 

We filed in the trial court, arguing that the records sought by the defendant were all privileged and there was no statutory exception that would permit an in camera review, let alone defense access.

In a disappointing, but predictable turn of events, the trial court refused to entertain this argument, but also refused to follow even the basic legal requirements of conducting an evidentiary hearing and forcing the defendant to meet his burden with evidence. Instead, the judge stated, “Defendant is going to get these records.” 

On behalf of the victim, we appealed.

As I write this, we just learned that we have lost this argument in the court of appeals, and we are currently working on a brief to the Ohio Supreme Court. We are hopeful because the Ohio Supreme Court tends to value application of the plain language of the law and disfavors the approach of the trial court and appellate court of inserting exceptions into privilege law that do not exist. In addition, and perhaps more importantly, all of the reasoning in State v. Johnson applies to prior case law in Ohio.

And isn’t it time that we move past the cases decided at a time when every victim of domestic violence and sexual assault was met with disbelief? Isn’t it time we move toward concrete rights for victims and, specifically, a more meaningful vision of victim privacy?

Elizabeth Well is the Legal Director at Ohio Crime Victim Justice Center. Elizabeth graduated from Ohio University with a bachelor’s degree in political science and attended Ohio Northern University for law school, where she graduated with a juris doctorate with distinction. In her time with Ohio Crime Victim Justice Center, Elizabeth has provided assistance to hundreds of crime victims, litigating their rights in trial and appellate courts, provided training to thousands of criminal justice system officials on victims’ rights in Ohio, and participated in the Marsy’s Law constitutional amendment campaign, including a leading role in drafting the amendment’s implementing legislation.