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Getting Therapist Records in a Child Sexual Abuse Allegation

It is common for children to be placed in therapy when sexual abuse is either suspected or alleged. In fact, police departments, social workers and child abuse investigators will frequently refer cases to child therapists that they believe will assist with disclosure or treatment of sexual abuse.

It is critical that criminal defense attorneys, representing clients in molestation or sexual abuse cases, get any and all therapy records and examine the records for impeaching or exonerating evidence.

Therapists are mandated reporters under California law. If a therapist has made an official report saying that a child claimed abuse, that information will be discoverable and should simply be listed in a police report. Attorneys should issue a subpoena duces tecum or “SDT” to the therapist for all records regarding the child, including emails, notes, billing statements, photocopies of books and photographs of toys that were used as part of the therapy.

It is not uncommon for a therapist to ignore an SDT, whereupon one must ask a judge for a warrant. At this point, however, the prosecuting agency will usually intervene on the therapist’s behalf to prevent the warrant from issuing.

When a therapist does respond, he or she is likely to claim a privilege under Evidence Code section 1015, which states that a therapist “shall” assert a privilege on a client’s behalf when confidential communications are sought. I would argue that this provision is superseded by Evidence Code section 1027 when child sexual abuse is reported, however. Section 1027 says that there is no privilege when a child is under 16, believed to be the victim of a crime and disclosure of that crime would be in the best interest of the child. Section 1027 appears to be geared toward mandated reporters and this make sense: the legislation would not require certain professionals to disclose such vital information and then simultaneously allow them to seek refuge from discussing the incident via a privilege.

The prosecuting agency is likely to intervene and claim that the records are not required until trial, pursuant to People v. Hammon 15 Cal.4th 1117 (1997). Hammon is a baffling decision. Therapy records may contain exculpatory or exonerating information and as such, are Brady material, if in the hands of the prosecution. I know of no other area of law where a distinction is made between the stages of a proceeding for discovery purposes. Further, Hammon does not categorically state that the defense must wait until trial to receive the records. It simply ruled that in that case the defendant had not made the requisite showing. Defense attorneys should attempt to make that showing.

If your client has been accused of molestation or sexual abuse and you want to discuss this further, do not hesitate to contact Orange County criminal defense attorney Staycie R. Sena at (949) 477-8088 today.