Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case.[1] The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.

The Tennessean v. Metro represents the first occasion that the Tennessee Supreme Court has considered when, if ever, crime victims’ private records are protected from public view under the TPRA. Notably, although the case’s central holding that all of law enforcement’s investigative records are shielded from disclosure “during the pendency of [a case’s] criminal proceedings and any collateral challenges to any convictions” provides some measure of protection to crime victims, significant questions remain unsettled.[2] Specifically, the court’s ruling in The Tennessean potentially establishes a three-part “coverage gap” that creates substantial uncertainty as to whether crime victims’ private records are exempt from public disclosure in the following instances:

  1. if their cases do not result in a plea or a conviction;
  2. if they are not victims of a sexual offense; or
  3. if the records that they seek to protect from public disclosure — no matter how personal or private in nature — are not specifically exempted by statute.

In a future case, however, these three categories of records are likely to be exempted from disclosure under the TPRA as well. Specifically, the court is likely to find that such records are shielded from public view pursuant to Article I, section 35 of the Tennessee Constitution and Tenn. Code Ann. § 40-38-102(a)(1), which collectively establish that crime victims have legally cognizable rights to be protected from “intimidation,” “harassment,” “abuse,” “indignity” and “lack of compassion” throughout Tennessee’s justice system.[3]

The Tennessee Public Records Act

As a general matter, all governmental records in Tennessee are public unless they are specifically exempted from disclosure by law.[4] When the Tennessee Public Records Act was first adopted in 1957, it only provided for two such exemptions — one for medical records of patients in state hospitals, and another for military records involving national and state security.[5] In the half century since, however, the Tennessee legislature has added more than 40 additional statutory exemptions to the TPRA, rendering it one of the most exception-laden public records statutes in the nation.[6]

As importantly, the TPRA has also been amended to include a “catch-all” provision that provides for additional exemptions.[7] This provision establishes that even if governmental records are not protected from disclosure by the TPRA itself, they are nonetheless exempt from disclosure if there is an exemption that is “otherwise provided by state law.”[8] For purposes of this catch-all provision, “state law” has been interpreted expansively to include state statutes, the Tennessee Constitution, Tennessee common law, rules of court, and administrative rules and regulations.[9]

The Tennessean recognized that section 10-7-504(q)(1) of the TPRA specifically exempts certain crime victims’ records from public disclosure following a defendant’s guilty plea or conviction. The court also held that while criminal proceedings are pending in a given case, Tennessee Rule of Criminal Procedure 16 exempts victims’ records from disclosure under the TPRA’s catch-all provision. In light of these holdings, however, the court’s majority opinion did not address two separate and potentially broader sources of protection for crime victims:

  1. Article I, section 35 of the Tennessee Constitution, which affords crime victims a constitutional right “to be free from intimidation, harassment and abuse throughout the criminal justice system”; and
  2. Tenn. Code Ann. § 40-38-102(a)(1), which affords crime victims a statutory right to “[b]e treated with dignity and compassion.”

Thus, whether these provisions operate to fill the tripartite coverage gap left open by The Tennessean’s majority opinion is not yet clear.

Case Summary

The Tennessean v. Metro arose out of a public records request filed by The Tennessean in October of 2013. The paper specifically sought access to law enforcement records concerning a high-profile rape that took place at Vanderbilt University and resulted in the arrest and prosecution of four of Vanderbilt’s star football players. Of particular interest to the media coalition were records involving former Vanderbilt football coach James Franklin, who had contacted the victim by cell phone four days after she was raped while she was undergoing a medical examination.[10]

Ultimately, Metro denied The Tennessean’s public records request, causing the paper to petition for access to the requested records in Davidson County Chancery Court. Thereafter, the victim in the case intervened, arguing that certain records implicating her personal privacy — such as her private cell phone records and a video recording of her rape — were exempt from public disclosure under Tennessee’s victims’ rights laws.

Eventually, the case reached the Tennessee Supreme Court. Upon review, four justices held that while criminal proceedings remained pending, the Nashville Police Department’s entire investigative file was exempt from public disclosure under Tennessee Rule of Criminal Procedure 16, which governs discovery in criminal cases. Because it was not essential to its holding, however, the majority opinion did not address whether any of the records requested by The Tennessean would also have been protected from disclosure under Tennessee’s victims’ rights provisions. This separate argument, however, was adopted in full by Justice Wade in dissent, who wrote:

Both [A]rticle I, section 35 and section 40-38-102(a)(1) … qualify as ‘state law’ for purposes of the catch-all exception to disclosure under the TPRA. Exceptions must be recognized pursuant to the catch-all provision when, as here, there is a significant risk that the disclosure of documents will contravene rights guaranteed by provisions in the Tennessee Code and the Tennessee Constitution.[11]

Victims’ Protections and Potential Gaps In Coverage

With respect to protecting victims’ privacy, the significance of The Tennessean lies in what it potentially leaves exposed. Under the majority’s opinion, crime victims’ records are only protected from disclosure by Tennessee Rule of Criminal Procedure 16 during the pendency of a criminal case.[12] Thereafter, if a defendant is “convicted of, and has been sentenced for a sexual offense,” then Tenn. Code Ann. § 10-7-504(q)(1) further provides that:

[T]he following information regarding the victim of the offense shall be treated as confidential and shall not be open for inspection by members of the public:

(A) Name, unless waived pursuant to subdivision (q)(2);
(B) Home, work and electronic mail addresses;
(C) Telephone numbers;
(D) Social security number; and
(E) Any photographic or video depiction of the victim.

Crucially, however, if only these two protections — Rule 16’s “pending criminal case” exemption and section 10-7-504(q)(1)’s “post-sentencing for a sexual offense exemption” — shield victims’ records from disclosure under the TPRA, then three broad categories of crime victims will be left unprotected once criminal proceedings have concluded.

The first category of victims who would be left without the ability to safeguard their private records from public view are those whose cases do not result in a conviction. By its own terms, section 10-7-504(q)(1) applies only “[w]here a defendant has plead[ed] guilty” or “has been convicted.” Significantly, however, by some estimates, less than 4 percent of rapes result in a conviction.[13] Consequently, if section 10-7-504(q)(1) is the only law that protects crime victims’ private records from public disclosure after criminal proceedings have concluded, then the approximately 96 percent of rape victims whose cases do not result in a conviction have no ability to protect their records from disclosure at all.

Second, even in those rare instances when a conviction is secured, section 10-7-504(q)(1) applies only to victims whose perpetrators are found guilty of committing “a sexual offense or [a] violent sexual offense.”[14] Excluded from this category, for example, are victims of domestic violence, who represent a significant proportion of all crime victims. This omission is similarly critical, because “[i]f domestic violence … victims do not feel that their private information will remain so under confidentiality and privilege laws, victims may be hesitant to reveal their trauma[.]”[15]

Third, even when a victim’s perpetrator is both convicted and convicted of a qualifying sexual offense, the final category of crime victims who are potentially left out of The Tennessean’s protections are sexual assault victims who seek to prevent the public from accessing records that are not specifically exempted by Tenn. Code Ann. § 10-7-504(q)(1). As noted above, following a defendant’s conviction, section 10-7-504(q)(1) exclusively prohibits disclosure of a victim’s “name,” “home, work and electronic email addresses,” “telephone numbers,” “social security number” and “photographic or video depiction[s] of the victim.” Omitted from these restrictions, however, are myriad highly sensitive and deeply personal records that victims also have a significant interest in keeping private, such as diaries, e-mails, voicemail messages, social media records, and text messages. If section 10-7-504(q)(1) serves as the sole, comprehensive list of exemptions protecting victims’ records from public disclosure following a criminal conviction, however, then these profoundly private records would all become available for public scrutiny the moment that criminal proceedings have come to an end.

The Tennessean’s majority opinion did not address any of these potential gaps in coverage. Recognizing its interstices, however, Justice Wade cautioned: “When the criminal prosecution concludes, the protections of Rule 16 expire. At that point, absent any other exception, the public records pertaining to the rape will be subject to public disclosure, including data from the victim’s cell phone and video recordings of the alleged rape.[16] Further, Justice Wade emphasized several of the aforementioned limitations of section 10-7-504(q)(1), noting:

This provision applies only if the defendants either plead guilty or are convicted at trial. [Additionally], the materials exempt from disclosure are limited. For example, the statute would not protect statements by or about the victim; written descriptions of photographs and videos of the victim; or most content of the victim’s cell phone.[17]

Looking Forward

Based on The Tennessean's holding with respect to Tennessee Rule of Criminal Procedure 16, the records that Jane Doe sought to protect were not yet at risk of being revealed because criminal proceedings were still pending in her case. As a result, The Tennessean's majority opinion did not consider her argument that Article I, section 35 of the Tennessee Constitution — which affords crime victims a constitutional right “to be free from intimidation, harassment and abuse throughout the criminal justice system” — constitutes an independent exemption to disclosure under the TPRA. Nor did it address her argument that Tenn. Code Ann. § 40-38-102(a)(1) — which affords crime victims a statutory right to “[b]e treated with dignity and compassion” — provides such an exemption as well. In a future case, however, the Tennessee Supreme Court is likely to hold that these provisions operate to fill the coverage gaps referenced above for three reasons.

First, the only two jurists in Tennessee who have squarely addressed the arguments that Article I, section 35 and Tenn. Code Ann. § 40-38-102(a)(1) exempt crime victims’ private records from public disclosure under the TPRA have wholeheartedly embraced them, providing the beginnings of precedent to support that conclusion. Second, The Tennessean’s four-member majority similarly expressed concern about the potentially devastating consequences that could result from allowing crime victims’ private records to become public, suggesting that such arguments are likely to carry purchase. Third, there is strong evidentiary support for the conclusion that exposing crime victims’ private records to the public could result in victims experiencing intimidation, harassment, abuse, indignity or lack of compassion in many instances — five consequences that Article I, section 35 and Tenn. Code Ann. § 40-38-102 expressly aim to prevent.

Uniformity of Prior Judicial Decisions

To date, the only two judges in Tennessee who have squarely addressed litigants’ arguments that Article I, section 35 and Tenn. Code Ann. § 40-38-102 independently exempt crime victims’ private records from public disclosure have wholeheartedly embraced them, providing the beginnings of precedent to support such a holding. As indicated above, in The Tennessean itself, Justice Wade held without equivocation that: “Both [A]rticle I, section 35 and section 40-38-102(a)(1) … qualify as ‘state law’ for purposes of the catch-all exception to disclosure under the TPRA.”[18] In this regard, Justice Wade’s opinion also mirrored Judge Neal McBrayer’s separate opinion in the Tennessee Court of Appeals. There, in a similarly victim-protective dissent, Judge McBrayer held that “victim’s rights under Article 1, § 35 of the Tennessee Constitution and Tenn. Code Ann. sections 40-38-101 through 506 ˆ constitute ‘state law’ exceptions to the Public Records Act.”[19] Accordingly, among the admittedly small number of Tennessee jurists who have addressed the matter so far, the conclusion that Tennessee’s victims’ rights provisions independently exempt crime victims’ private information from public disclosure is currently unanimous.

The Majority’s Concern for Victims’ Privacy

The Tennessean’s majority opinion and Justice Kirby’s separate concurring opinion also indicate that the four remaining justices were similarly attuned to crime victims’ privacy interests. For example, The Tennessean’s majority opinion editorializes: “The General Assembly wisely enacted [an] exception to the Public Records Act to protect the release of a victim’s private information and any photographic or video depictions without the necessity of a court proceeding.”[20] Curiously, The Tennessean’s majority even criticizes Justice Wade’s comparatively victim-protective dissent for being insufficiently cognizant of victims’ privacy concerns, bemoaning that “the dissenting justice expresses concern for Ms. Doe and her right to be treated with ‘dignity and compassion,’ Tenn. Code Ann. § 40–38–102(a)(1), yet would throw open the police department’s investigative records for all to see.”[21] Further, Justice Kirby’s separate concurring opinion emphasizes that absent a robust exemption to protect victims’ private records, “[v]ictims of sexual crimes could find their personal information, as well as videos and photos of their ordeal, readily available to those who would post the information online or otherwise further torment them.”[22] Thus, with these concerns weighing heavily on the minds of the majority’s justices as well, the notion that the court would leave open the three glaring coverage gaps referenced in this article’s introduction seems unlikely.

The Likelihood of Intimidation, Harassment, Abuse, Indignity or Lack of Compassion

Finally, the argument that exposing crime victims’ private information to the public could contravene the rights guaranteed to victims by Article I, section 35 and Tenn. Code Ann. § 40-38-102 is remarkably persuasive in many instances. In particular, a significant body of social science evidence supports the conclusion that releasing sexual and domestic violence victims’ private information to the public could frequently result in such victims experiencing “intimidation,” “harassment,” “abuse,” “indignity” or “lack of compassion” — five consequences that Article I, section 35 and Tenn. Code Ann. § 40-38-102 expressly prohibit.[23] Thus, given that each of these consequences provides an independent basis for exempting a crime victim’s records from public disclosure, it is likely that at least one of them will be identified as an exemption under the TPRA’s catch-all provision in a future case.

Despite their alarming frequency, crimes involving sexual assault and domestic violence are among the most chronically underreported crimes in the country.[24] At present, only an estimated one-quarter of all physical assaults, one-fifth of all rapes, and one-half of all stalking offenses perpetrated against females by intimate partners are reported to law enforcement.[25] Significantly, a critical factor that contributes to such underreporting is “fear of reprisal if [victims] report.”[26]

Fear of reprisal is precisely the type of intimidation prohibited by Article I, section 35. Moreover, there is reason to believe that such fear constitutes the rule, rather than the exception. Although their reasons vary, “almost nine out of 10 American women (86 percent) [believe that] victims would be less likely to report rapes if they felt their names would be disclosed by the news media.”[27] Consequently, “[i]f domestic violence and sexual assault victims do not feel that their private information will remain so under confidentiality and privilege laws, victims may be hesitant to reveal their trauma.”[28]

Unfortunately, harassment contributes significantly to such underreporting as well.[29] Claims against athletes, in particular, have generated many well-documented instances of victim harassment[30] — including during the criminal proceedings at issue in The Tennessean itself.[31] This, too, is a consequence that Article I, section 35 of Tennessee’s Constitution expressly forbids.

Regrettably, the abusive practice of “victim blaming” also remains frighteningly persistent in society, and it is especially pervasive in the context of sexual assault cases. As one court recently explained:

Historically, an exaggerated concern for female chastity and a regrettable inclination to blame the victim for sexual assaults, along with society’s general respect for sexual privacy, have resulted in an atmosphere in which victims of sexual assault may experience shame or damage to reputation. It would be callous to pretend that this atmosphere has entirely dissipated, or to insist that victims of such assault lack privacy interests because most people today understand that the attacker, not the victim, should be stigmatized and ashamed.[32]

Sadly, the genesis of such victim blaming is probably the law itself — a vestige of “special requirements for rape prosecutions” that once included rules such as “a cautionary instruction to all juries, alerting them that rape complaints are easy to fabricate”[33] and “rules of evidence deeming the complainant’s past sexual conduct or reputation for chastity relevant to her credibility or her consent to sexual intercourse.”[34] Perhaps most despicably, courts once applied “the requirement of ‘utmost resistance’” to rape prosecutions, which provided that in order to sustain a conviction, “[n]ot only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.”[35]

Fortunately, in recent decades, courts across the United States have shed these biases and come to recognize that sexual assault represents an especially egregious crime that can undermine the dignity of victims.]36] Commendably, Tennessee law in particular is not blind to the indignity of sexual assault or to the public’s interest in preventing invasions of survivors’ privacy.[37] Additionally, robust social science research supports the conclusion that identifying victims publicly and releasing records of their assaults can lead to re-victimization and recurring trauma that may further chill reporting[38] — consequences that are plausibly among the indignities that section 40-38-102(a)(1) aimed to prevent.

Taking these concerns into account, courts have recently begun to treat sexual assault and domestic violence survivors with significantly greater compassion in an effort to “protect them from a second victimization by the judicial process.”[39] Undergirding this reform effort are substantive victims’ rights provisions like those established by Article I, section 35 and Tenn. Code Ann. § 40-38-102(a)(1), which afford crime victims important, legally cognizable rights throughout the judicial process. Accordingly, with the overarching goal of protecting crime victims against mistreatment deeply ingrained within Tennessee’s constitutional and statutory text, the likelihood that Tennessee’s victims’ rights provisions will be disregarded in a future case when it comes to filling the coverage gaps left open by The Tennessean’s majority opinion seems vanishingly small.

Conclusion

Whenever Tennessee’s victims’ rights provisions conflict with a criminal defendant’s federal constitutional rights — such as the right to confrontation or the right to a public trial — there is no doubt that victims’ rights must bend. As far as the Tennessee Public Records Act is concerned, however, there is also no doubt that Tennessee’s victims’ rights provisions operate to exempt victims’ private records from public disclosure in many instances.

The Tennessean’s majority opinion expressly recognized two such exemptions: Tennessee Rule of Criminal Procedure 16, which functions to protect crime victims’ records from disclosure throughout the pendency of a criminal case, and Tenn. Code Ann. § 10-7-504(q)(1), which protects certain limited categories of records concerning sexual assault victims from disclosure following a defendant’s conviction. However, under Article I, section 35 of the Tennessee Constitution and Tenn. Code Ann. § 40-38-102(a)(1), five additional consequences — the likelihood of intimidation, harassment, abuse, indignity or lack of compassion following the release of a victim’s private records to the public — also provide independent bases for exempting crime victims’ records from public disclosure both before and after a criminal prosecution has concluded.

Consequently, in a future case, it is likely that the three categories of crime victims who were left unprotected by The Tennessean’s majority opinion — (1) victims whose cases do not result in a guilty plea or a conviction, (2) victims whose perpetrators are not convicted of a sexual offense, and (3) victims whose private records are not specifically exempted from disclosure by statute — will find that their records are shielded from public view under Tennessee’s victims’ rights provisions as well.

Notes

  1. The Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 873 (Tenn. 2016).
  2. Id.
  3. See brief for Domestic and Sexual Violence Prevention Advocates as Amici Curiae in Support of Intervenor Jane Doe and Partially in Support of Petitioners The Tennessean, et al. at 6–37, The Tennessean v. Metro., 485 S.W.3d 857 (2016) (NO. M-2014-00524-SC-R11-CV/); Opening Brief of Intervenor — Appellee Jane Doe at 9–26, The Tennessean v. Metro., 485 S.W.3d 857 (2016) (NO. M-2014-00524-SC-R11-CV). The arguments presented in this article reflect many of the arguments that were made to the Tennessee Supreme Court in The Tennessean both by amici curiae supporting Jane Doe and by Jane Doe herself. See id.
  4. See, e.g., Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that section 10–7–505(d) of the Tennessee Code “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records”).
  5. Act of March 18, 1957, ch. 285, § 2, 1957 Tenn. Pub. Acts 932, 932 (codified as amended at Tenn. Code Ann. §§ 10-7-503 to -506 (2016)); see also Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004) (“As originally enacted, the public records statutes excepted only two classes of records from disclosure. These records included the medical records of patients in state hospitals and military records involving the security of the United States or the State of Tennessee”).
  6. See Tenn. Code Ann. § 10-7-504(a)-(s) (2016).
  7. See Swift, 159 S.W.3d at 571–72.
  8. Tenn. Code Ann. § 10-7-503(2)(A) (2016).
  9. Swift, 159 S.W.3d at 571–72 (collecting cases).
  10. Tony Gonzalez, “Attorneys: James Franklin contacted victim in Vanderbilt rape case,” The Tennessean, (Apr. 30, 2014), http://www.tennessean.com/story/news/crime/2014/04/29/james-franklin-all....
  11. The Tennessean, 485 S.W.3d at 881 (Wade, J., dissenting).
  12. Id at 859.
  13. See, e.g., UK Center for Research on Violence Against Women 2, https:/opsvaw.as.uky.edu/sites/default/files/07_Rape_Prosecution.pdf (last visited July 22, 2016) (“Since most rapes are not reported to police, the [National Violence Against Women Study] estimated that only 3.4 percent of all rapes ultimately lead to a conviction for the offender”).
  14. See Tenn. Code Ann. § 10-7-504(q)(1) (2016).
  15. Viktoria Kristiansson, “Walking a Tightrope: Balancing Victim Privacy and Offender Accountability in Domestic Violence and Sexual Assault Prosecutions (Part II),” Strategies: The Prosecutor’s Newsletter on Violence Against Women, May 2013, at 7, http://www.aequitasresource.org/Issue_10_Walking_A_Tightrope_Balancing_V....
  16. The Tennessean, 485 S.W.3d at 882 (Wade, J., dissenting).
  17. Id.
  18. Id. at 881.
  19. The Tennessean v. Metro. Gov’t of Nashville, No. M2014-00524-COA-R3-CV, 2014 WL 4923162, at *6 (Tenn. Ct. App. Sept. 30, 2014) (McBrayer, J., dissenting).
  20. The Tennessean, 485 S.W.3d at 873–74.
  21. Id. at n. 24.
  22. The Tennessean, 485 S.W.3d at 874 (Kirby, J., concurring).
  23. Tenn. Const. art. I, § 35; Tenn. Code Ann. § 40-38-102(a)(1).
  24. See U.S. Dept. of Justice, Bureau of Justice Statistics, Criminal Victimization 11 (2003), available at http://www.bjs.gov/content/pub/pdf/cv03.pdf.
  25. Patricia Tjaden & Nancy Thoennes, Nat’l Institute of Justice & Centers of Disease Control & Prevention, Extent, Nature and Consequences of Intimate Partner Violence Against Women Survey 51 (2000), https://www.ncjrs.gov/pdffiles1/nij/181867.pdf.
  26. Richard Felson and Paul-Philippe Paré, The Reporting of Domestice Violence and Sexual Assault by Nonstrangers to the Police 8 (2005) (citations omitted) (citing Simon I. Singer, “The Fear of Reprisal and the Failure of Victims to Report a Personal Crime,” 4 J. Quantitative Criminology 289, 289–302 (1988), https://www.ncjrs.gov/pdffiles1/nij/grants/209039.pdf.
  27. National Victim Center, Rape in America: A Report to the Nation 6 (1992), available at https://www.musc.edu/ncvc/resources_prof/rape_in_america.pdf.
  28. Kristiansson, supra note 15.
  29. See, e.g., Eliza Gray, “Why Victims of Rape in College Don’t Report to the Police,” Time (June 23, 2014) (“Victims, especially those in college, know that reporting rape comes with a social risk, especially when the perpetrator is someone they know.”), http://time.com/2905637/campus-rape-assault-prosecution/.
  30. See, e.g., Associated Press, “Roethlisberger Accuser Receives ‘Over 100’ Threats,” The News Center (Aug. 6, 2009), http://www.thenewscenter.tv/sports/headlines/52599607.html?device=phone&c=y (“The woman who has accused Pittsburgh Steelers quarterback Ben Roethlisberger of raping her at a Lake Tahoe hotel-casino where she worked told authorities she has received dozens of threatening and harassing phone calls.”); Mark Memmott, “Two Steubenville Girls Arrested After Allegedly Threatening Rape Victim,” NPR (Mar. 19, 2013, 10:44 AM), http://www.npr.org/blogs/thetwo-way/2013/03/19/174728448/two-steubenvill... (“The 16-year-old girl raped by two Ohio high school football players in a crime that has attracted wide attention has also been the victim of online harassment, the state’s top prosecutor said late Monday”).
  31. See, e.g., Andre Rouillard, “The girl that ratted: How one online thread brought out the worst in Vanderbilt,” Vanderbilt Hustler (Apr. 17, 2014), http://www.vanderbilthustler.com/opinion/article_ecb2248e-c52b-11e3-b7d6... (documenting extensive harassment experienced by alleged rape victim).
  32. Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006).
  33. John Kaplan, Robert Weisberg & Guyora Binder, Criminal Law: Cases and Materials 867 (6th ed. 2008).
  34. Id.
  35. Brown v. State, 106 N.W. 536, 538 (Wis. 1906).
  36. See, e.g., Braswell v. State, Nos. A-2448, A-2529, 1991 WL 11650678, at *7 (Alaska Ct. App. Feb. 6, 1991) (noting that “sexual assault violates the victim’s personal sanctity and dignity”); People v. Luna, 204 Cal. App. 3d 726, 749 (1988) (noting “the revolutionary change that has taken place in our society, including changes with respect to the credibility and dignity we extend to adult women and children who are the victims of sexual assault”); Deborah S. v. Diorio, 583 N.Y.S.2d 872, 881 (N.Y. Civ. Ct. 1992), aff'd, 612 N.Y.S.2d 542 (N.Y. App. Div. 1994) (“While more rape victims are choosing to ‘come out’ [publicly], … that choice of dignity must remain with the victim, who must cope with: post-rape trauma; nightmares; possible unwanted pregnancy; terrifying concern about infection with the HIV virus; and loss of a sense of personal security.”).
  37. See, e.g., State v. Johnson, No. W2011-01786-CCA-R3-CD, 2013 WL 501779, at *12 (Tenn. Crim. App. Feb. 7, 2013) (“An assault charge, which would be the resulting conviction if there was no ‘sexual contact’ element, would not … protect the dignity of the victims of such egregious acts.”); Tenn. R. Evid. 412 cmts. (noting that Tennessee Rule of Evidence 412 endeavored to protect “the important interests of the sexual assault victim in avoiding an unnecessary, degrading, and embarrassing invasion of sexual privacy”).
  38. See, e.g., National Crime Victim Law Institute, “Allowing Adult Sexual Assault Victims to Testify at Trial Via Live Video Technology,” Violence Against Women Bulletin, Sept. 2011, at 1–2, https://law.lclark.edu/live/files/11775-allowing-adult-sexual-assault-vi... (“[R]ecalling horrifying and personal details of the rape forces the victims to relive the crime mentally and emotionally, leading some to feel as though the sexual assault is recurring and to re-experience a lack of control and terror” (citations omitted) (internal quotation marks omitted)); National Crime Victim Law Institute, “Protecting Victims’ Privacy: Moving to Quash Pretrial Subpoenas Duces Tecum for Non-Privileged Information in Criminal Cases,” Violence Against Women Bulletin, Sept. 2014, at 1, https://law.lclark.edu/live/files/18060-quashingpretrial-subpeonasbullet... (noting that “[t]he prospect of having to reveal [personal] information to anyone … may cause a victim to feel re-victimized and make it less likely that the victim will cooperate in the proceedings or choose to report the crime in the first instance”).
  39. State in Interest of K.P., 709 A.2d 315, 325 (N.J. Ch. 1997).

Daniel Horwitz DANIEL A. HORWITZ is an appellate attorney in Nashville and a member of the Tennessee Advisory Committee to the U.S. Commission on Civil Rights. Reach him at daniel.a.horwitz@gmail.com. This piece is a condensed version of an article published in the Fall 2016 edition of the Tennessee Journal of Law and Policy.

          | TBA Law Blog