On the morning of January 9th 2014, victim rights attorneys from various agencies and law firms gathered downtown at the Supreme Judicial Court, Massachusetts’ highest court, to hear oral arguments in a case called Commonwealth v. Sealy. Why did these legal advocates take time out of their hectic schedules to listen to what was happening in this case, and why does this matter to the rest of us? The story begins back in 2006, when a survivor of sexual assault consulted with a lawyer at BARCC.
The survivor, like many, was hesitant to go to the police, concerned about how reporting would affect her life and her healing process. She consulted with a BARCC attorney, and ultimately decided to report the crime. As a result, Mr. Sealy, her perpetrator, was charged and eventually convicted of rape. Mr. Sealy is now challenging the conviction, arguing that the trial process was unfair to him because he was denied access to the survivor’s attorney records at BARCC. He knows the survivor applied for immigration status after reporting the rape, and his theory is that there might be information in BARCC’s file indicating the survivor, upon consulting an attorney, fabricated the rape for immigration purposes. (Congress created a type of immigration status for immigrant victims of crime, with the goal of encouraging immigrants who might otherwise be fearful of law enforcement to report violent crime). Never mind that she had already reported the rape to a third party before consulting BARCC; never mind that he sent her incriminating messages, apologizing for the rape; never mind that the victim provided compelling testimony about the rape at trial, and never mind that the jury already knew about the immigration status the victim had sought. The defense argued that BARCC’s otherwise confidential records should have been released to the perpetrator.
So why does the outcome of this case matter to survivors of sexual violence, and to those of us working to eradicate such violence? Consultations with attorneys are covered by attorney-client privilege, meaning they are strictly confidential and cannot be released to others without the client’s permission. This legal right to privacy is crucial, because it provides survivors who are scared to disclose an assault with a safe space to do so and learn about their legal rights and options. To contrast, survivor’s communications with police are not confidential, and information given to the police can be passed along to the perpetrator as part of the criminal process. If Mr. Sealy wins, survivors across Massachusetts will lose the assurance of that safe space when consulting with attorneys. It would likely have a chilling effect, keeping survivors from seeking services, and ultimately keeping them from reporting crimes they otherwise might report to the police.
Along with other victim service agencies, we strongly opposed Mr. Sealy’s arguments.* Now we just have to wait, along with victim attorneys, survivors, and supporters across the Commonwealth, for the Supreme Judicial Court’s decision…
*BARCC is grateful to the dedicated attorneys from the law firm of Mintz Levin for representing us in this case.
WRITTEN BY: Jacqueline Anchondo, Legal Advocacy Coordinator