By DAMIEN FISHER, InDepthNH.org
An alleged victim of childhood sexual abuse was about to have records of her counseling and therapy sessions handed over to her abuser.
The accused, Gene Zarella, wanted to plumb the depths of the woman’s therapy and crisis counseling records in order to discredit her as a witness in his upcoming criminal trial. And until this week, the woman had no way to stop her private mental health information from being used against her.
On Thursday, the New Hampshire Supreme Court overturned decades of legal precedent in a ruling that now protects mental health and counseling records in the same way as doctor-patient and attorney-client records.
“It’s a big win for erasing the taboo against mental health treatment and the stigma of mental illness,” said David Vicinanzo, the Nixon Peabody attorney representing the alleged victim. “By raising the status of the protective privilege, the status and importance of mental health treatment is elevated as well.”
The Supreme Court’s ruling is the first time New Hampshire’s constitutional right to privacy has impacted the existing legal landscape. In 2018, voters added “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent,” to the state’s Bill of Rights.
Up until this week, courts allowed defendants to access private records from mental health treatment under the right to a fair trial for those accused of crimes. The courts did not give any sort of notification to those whose records were being used, nor did they have any way to stop the practice.
Hilary Holmes Rheaume, with Bernstein, Shur, Sawyer & Nelson and attorney for Coalition, said the ruling corrects a grave injustice against crime victims.
“For too long, our justice system has emphasized a defendant’s rights while placing victims in the defendant’s shadow. With today’s decision, the New Hampshire Supreme Court has affirmed that victims have a fundamental right to be notified and heard—particularly when their privacy is at stake. This is a win for all victims of sexual assault, who now have protections that did not exist before today,” Holmes Rheaume said.
Most other states protect mental health records the same as other medical or attorney-client records, but not New Hampshire until this week. This allowed victims of violent crimes to live in fear that their counseling and therapy session could be used against them, and in some cases discouraged them from seeking help.
“The outrageous practice of accessing victims’ irrelevant, personal information ends today,” said Lyn Schollett, executive director of the New Hampshire Coalition Against Domestic and Sexual Violence.
Zarella, 53, was indicted on four counts of aggravated felonious sexual assault in late 2021. According to the indictments he assaulted the girl twice between March of 2006 and July 2007 when she was under the age of 13, and twice more between March 2014 and July 2014 when she was between ages 13 and 16.
Zarella has pleaded not guilty and has yet to be tried on the charges. As part of his defense, Zarella sought access to the alleged victim’s mental health records going back to 2009. The alleged victim was never notified that her records were being sought. She was able to intervene in the court case, but Judge Amy Ignatius denied her request to keep her records private, basing her decision on prior Supreme Court rulings.
But the rulings Ignatius relied on were all decided before the 2018 constitutional amendment. Vicinanzo said Thursday’s decision corrects bad law that allowed criminal defendants to raid therapy records under the guise of due process rights.
“New Hampshire was among a small minority that said due process of the defendant overruled private, non-governmental parties’ rights. This corrects that bad law. Due process is one of the Bill of Rights. The Bill of Rights is a set of protections of the citizen against the government. It is not one right a private citizen has against another private citizen,” Vicinanzo said.
With the ruling, private mental health records can only be accessed by defendants in the same way that private medical records or attorney-client records are accessed. That represents a high legal bar for defendants to clear, and it allows the victims and their therapists to argue against the disclosure in court.