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The police were supposed to call the counselors. The hospital was supposed to call them. But they didn’t. The routines were new in those days. Hours passed before one arrived. I was alone in a curtained-off area of the emergency room at Boston City Hospital, listening to a doctor go on and on about how he couldn’t believe that such a thing could happen in a nice neighborhood in the Back Bay when, finally, a woman pulled aside the curtain to introduce herself. “Would you like me to come in?” she asked. I said I would. She told the doctor to focus on the swabs and not on what he could or couldn’t believe, since it was perfectly obvious that he was wrong. I relaxed a bit. I was no longer alone. For the next few months, the women of the fledgling Boston Area Rape Crisis Center would call me on the phone to check in. At first, they called every day; then every other day; the last call was just before I moved from the apartment in Back Bay to a dorm room at Harvard Law School. I said things on those calls that I said to no one else. I believed that it was all confidential. On June 30 of this year, 26 years after my conversations, the Massachusetts Supreme Judicial Court held the now well-established Boston Area Rape Crisis Center in contempt of court for refusing to turn over the records of its conversations with another woman who turned to them for help. A divided court, with two women justices in dissent and the third writing the opinion of the court, broadened the judicially created exception to the statutory privilege for conversations between rape counselors and victims. The court held that the fact that the victim turned to the Crisis Center for advice about whether what happened to her really was rape made those conversations “the turning point” in the case and thus required that the relevant notes be produced. The defendant in Commonwealth v. Neumyer acknowledged that he had intercourse with the victim, and that she was too inebriated at the time to give oral consent; he ultimately pled guilty to lesser charges. The victim acknowledged that she had been drinking and smoking marijuana with the defendant before he had sex with her. Was it rape? That was what she reportedly discussed with the counselor from the rape crisis center — not what happened, but whether the law would consider it to be rape. Did you know him, people would ask me, when I was strong enough to talk about it. Did I know the man who put an ice pick to my throat and threatened to kill me? No, I didn’t, I would answer. Oh, so then you were really raped. As opposed to what, I used to wonder. As opposed to being not really raped? In the statute books, rape has always been defined as intercourse by force or threat of force without the consent of the victim. It doesn’t matter if you know the man, or if you’ve been drinking, or if you’re too embarrassed to tell anyone else, or if you keep seeing him afterward. It matters if there was intercourse, consent, and force. In practice, it has long mattered. Fifteen years ago, when I sat down and read every published opinion on rape, the pattern was obvious: women raped by men they knew, in circumstances that might have been consensual, were subject to rules of evidence and proof that no other victims of any other crime faced. These same rules, though technically equally applicable to victims of stranger rape, were rarely applied to them. Stranger cases constitute the minority of rape cases in surveys of victimization, but the majority in police reports. Most nonstranger cases were never reported in the first instance; if they were, prosecution was unlikely, the excuse being that convictions would be difficult to obtain; and if there was a prosecution and a conviction, these were the cases most likely to be reversed on appeal. I have spent much of my professional life arguing that no should mean no, that consent requires some form of affirmative assent, that drinking too much and going off with a man to his room might be a stupid mistake, but it doesn’t give him the right to violate your sexual autonomy. While virtually every state has reformed its laws, prosecution and conviction rates in these “simple rape” cases remain low, and most women continue to not report to the police in these circumstances, understanding that what the law says and what the law does can be quite different. The question the victim in Neumyer needed help answering is one that I can’t answer definitively, and I’ve been working in the area for 20 years. Needing to ask it should not be enough to cost a woman the right to talk to a counselor in confidence. Under Massachusetts law, in order for a defendant to obtain access to the records of a rape crisis center, he must make a proffer to the judge as to why the materials are relevant to his defense. If the judge then rules in his favor, the records are subject to review by the judge, who will then turn over the relevant portions to the defendant and his lawyer. The defendant’s proffer in Neumyer had everything to do with the strength of the case against him, and nothing to do with the substance of the woman’s conversations with the rape center. According to the defendant, the records were relevant because she: “(1) had intercourse with her best friend’s boyfriend, the defendant, and had not told anyone because she did not want to ruin her friendship with her best friend; (2) vacillated as to whether she ‘had intercourse’ with the defendant or ‘only oral sex’; (3) was involved in alcohol and drug activity on the night of the alleged incident; (4) lied to her grandmother about the events of that night; (5) continued to socialize with the defendant after the incident, including spending the night of July 3 in his bedroom; (6) was extremely susceptible to manipulation by peer pressure; and (7) was under treatment for depression and had been prescribed Prozac (apparently at the time of the incident).” Certainly, some of these factors might be relevant to the victim’s credibility and to the question of consent — although the Prozac reference is difficult to justify, even on those grounds. But with the exception of the alleged vacillation on whether there was vaginal as well as oral intercourse (under Massachusetts law, both count as rape), there is no connection between the proffer and the question that she turned to the rape crisis center for help in answering. Allowing access in these circumstances reestablishes the old pattern: The weaker the case against the defendant, the more likely that the victim will be victimized a second time by the system. The first case in Massachusetts to allow access to a rape victim’s treatment records involved two Brandeis University students who had been, and had continued to be, close friends until she reported months after the fact that she had been raped by him. Veteran feminist lawyer Nancy Gertner (now a U.S. district judge) convinced the state supreme judicial court to allow access to the woman’s psychiatric records. He’s innocent, Nancy told me at the time, explaining why she was taking a tack that would earn her the ire of the feminist community. She’s crazy, she told me. The “nuts and sluts” defense, I used to call it, before I found myself occasionally invoking it to defend the president against charges of sexual harassment brought by Paula Jones. The president’s lawyers were sharply criticized by many for investigating Jones’s private life, but the reality is that few other avenues are available to a man wrongly charged, however rare that may be. Even if every bit of sexism could be removed from the criminal justice system — and it certainly has not been — date rape would remain a hard crime to prove and a hard crime to disprove. There will be cases, and Nancy’s might well have been one of them, where breaching a statutory privilege is the only way to protect an innocent man from conviction. (Granted a new trial, they chose not to reprosecute.) But great care must be taken, far greater than the court took here. What is happening in Massachusetts will happen around the country. Shield laws protecting a victim from cross-examination as to her sexual past are increasingly under attack. In the wake of rulings like this one, many rape crisis centers have stopped taking notes, so they won’t have to turn them over. There is even talk in Massachusetts of giving rape victims warning cards, like criminal defendants are given under Miranda, that anything they say to a counselor might be used against them in a court of law. I’m glad I didn’t get a card like that from the Boston Area Rape Crisis Center as I lay in the emergency room. I needed their help. I needed to talk. In confidence. Susan Estrich’s next book, “Sex and Power,” will be published by Riverhead (Penguin-Putnam) in October.

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