01-05-2025
NH Supreme Court backs victims mental health records in landmark decision
For the first time, the state's highest court applied the right of privacy to a criminal case to restrict the defendant's access to the alleged victim's confidential counseling and mental health records.
The opinion by the New Hampshire Supreme Court stems from a rape case in Belknap County involving a minor.
Even with protections in place previously, criminal defendants have used such records to 'intimidate and embarrass victims — and to deter them from disclosing abuse, reporting crimes and seeking justice,' according to the New Hampshire Coalition Against Domestic and Sexual Violence.
An individual's 'right to live free from governmental intrusion in private or personal information is natural, essential, and inherent,' was added to the New Hampshire Constitution in 2018.
The Supreme Court's opinion, issued Thursday, is being called groundbreaking by the coalition and members of the legal community.
Now, an alleged victim must be given notice and an opportunity to object when the defense requests access to confidential records.
The opinion is part the case against Gene Zarella of Tilton, who was indicted on four counts of aggravated felonious sexual assault of a minor. A Superior Court judge denied a request by the alleged victim to quash the defense's access to her counseling and mental health records.
According to the indictments, two of the assaults happened between March 2006 and July 2007 when the girl was under 13 and the other two occurred between March 2014 and July 2014 when she was between ages 13 and 16.
The alleged victim was not given notice or an opportunity to object to the defense's request for her records, according to the coalition.
Zarella's attorney, William Christie, did not return an email from the Union Leader seeking comment.
The justices used the 2018 constitutional amendment to overturn its prior case law, according to the coalition.
'Now, courts are required to engage in a specific process that involves the victim/patient before making any decision about reviewing or disclosing those records,' the coalition said.
David Vicinanzo, attorney for the victim and partner at Nixon Peabody law firm, called it a landmark decision which removed a 'major obstacle to justice' for victims.
He said mental health records will now be treated as first-class privileges, much like attorney-client privileges. The decision Thursday eliminates case law dating back 33 years when views on mental health were much different, he said.
'I think it brings us toward eliminating the stigma associated with mental health,' Vicinanzo said in an interview.
Vicinanzo said his client is glad her privileges won't be violated as part of the prosecution.
'Criminal defendants will no longer have easy access to rummage through the privileged medical and mental health records of their victims, almost all of whom were women or children in sexual or domestic crimes,' he said in a statement.
Coalition Executive Director Lyn Schollett said assault victims can now slowly rebuild their lives with the privacy they deserve.
'The outrageous practice of accessing victims' irrelevant, personal information ends today,' she said in a statement. 'Granite Staters who have experienced violent crimes and heinous losses can walk into the office of a crisis center or a therapist without fear that their conversations will become public.'
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