Court backs privacy of rape accusers’ mental health files

The Utah Supreme Court on Friday moved to protect the confidentiality of rape victims’ mental health records.

Defendants now must give their accusers notice when they attempt to subpoena such protected records, which cannot be disclosed without approval from a judge.

The ruling came in the appeal of Arthur Anthony Gonzales, who is serving four years to life in prison for attempted rape and forcible sexual abuse. Defense attorney Ed Montgomery subpoenaed – and received – the victim’s private records from the University of Utah Neuropsychiatric Institute.

Montgomery examined the records before asking the trial judge to review them and decide whether he could use them. The records were supposed to be sent directly to the judge, rather than the attorney. Questioning Montgomery’s ethics, 3rd District Judge Sheila McCleve ruled the records could not be used at trial and reprimanded Montgomery, who then quit the case.

The justices upheld McCleve on Friday, saying defense attorneys in rape and other criminal cases involving protected records must send copies of their subpoenas to prosecutors.

“When a victim’s confidential records are reviewed before she even knows they are subpoenaed, she cannot choose to protect them,” wrote Justice Ronald E. Nehring for the high court.

The justices also upheld rulings by 3rd District Judge Joseph Fratto denying Gonzales the right to question two witnesses at trial about their juvenile shoplifting records. The high court rejected a claim that Gonzales was denied the attorney of his choice, saying Montgomery voluntarily withdrew from the case.

Gonzales also had claimed he deserved a new trial because his second attorney was ineffective. At the end of his trial, the attorney asked for a mistrial, admitting she had made an error.

She had asked her client on the witness stand if he had ever been “accused” of other sexual assaults, rather than charged or convicted.

That question prompted prosecutors to question Gonzales about prior assault accusations, with permission from Fratto.

The justices said Friday the question would not have changed the outcome of the case.

In an October 2004 letter to The Salt Lake Tribune, Gonzales insisted he has been wrongly accused.

Gonzales was engaged to his 16-year-old victim’s mother, and claimed the girl had a previous history of psychiatric problems that included hallucinations.

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