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A rape crisis center was in contempt for refusing to produce a sanitized copy of “hotline” records for a defendant in a rape case and was ordered to pay a fine, the Supreme Judicial Court ruled yesterday. The high court upheld both Superior Court and Appeals Court rulings that theinformation sought by the defendant in the 1997 case was not privileged material – and was relevant to the defendant’s case. As a result, the information should have been turned over by the Cambridge-based Boston Area Rape Crisis Center (BARCC), the Supreme Judicial Court (SJC) ruled. Having been found in contempt, the center was also ordered to pay a fine that had been imposed by the Superior Court judge who made the original contempt finding in 1997. The judge ordered BARCC to pay a fine of $100 a day beginning Nov. 27, 1997, until the center complied with his order. The judge stayed the fine pending the appeal. It is unclear how much money the center will have to pay. A spokesperson forthe center could not be reached for comment before deadline. In its decision in the case of Commonwealth v. Craig Neumyer, the SJC ruled that Superior Court Judge Howard J. Whitehead had properly concluded that the records stating the time, date and fact of a telephone communication between the victim and rape counselor on the hotline is not protected by the sexual assault counselor privilege. ANOTHER VIEW Also in this ruling, SJC Justice Ruth I. Abrams wrote a dissent in which she concluded: “In Commonwealth v. Fuller, we wrote that ‘it was not our intention . . . to establish a standard and protocol that would result in virtually automatic in camera inspection for the entire class of extremely private and sensitive privileged material. To do so would make the privilege no privilege at all.” Abrams, who was joined by Chief Justice Margaret H. Marshall in the dissent, further concluded that the SJC’s decision “abrogates the privilege based on factors that apply in most sexual assault cases, directly contravenes the Legislature’s intent in enacting . . . the language of the statute and our cases. Therefore I dissent. I would vacate the order of contempt.” Abrams also wrote: “The court’s decision today creates an exception to (the statute) that will result in the automatic release to defendants of information as to the date and time of hotline calls. It requires rape counseling centers to be in court on every case and may prevent victims from seeking help.” INITIAL CONTEMPT Whitehead in November 1997 found BARCC in contempt after the agency refused to comply with the order to turn over the material regarding the phone conversation and another order to produce, for in camera inspection, records of the substance of the conversation between the victim and rape counselor. BARCC appealed the Superior Court judge’s ruling to the Appeals Court, asserting that because all its counselors are certified rape crisis counselors, the records were “absolutely privileged under the statute that protects from disclosure records of a victim’s sessions with a sexual assault counselor.” The center also argued that the judge’s order to produce the information violates the requirements in Commonwealth v. Fuller (423 Mass. 216, 1996), which mandates a five-stage procedure for defendants seeking to obtain access to treatment records of victims in sexual assault cases. The Appeals Court upheld Whitehead’s findings. DEFENDANT PLEADS On Dec. 29, 1999, the defendant pleaded guilty to all three charges of assault and battery following the prosecution’s nol prosse of the indictments alleging more serious offenses. The SJC found that “because criminal proceedings against the defendant haveterminated, there is no longer a need for the records to be produced.” The high court wrote further: “Without denigrating in any way the vital importance of agencies such as BARCC, we cannot sanction failure to comply with the law.”

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