Sexual assault victims advocates are expressing alarm after Dane County Judge William Hanrahan last Thursday ruled that a sexual assault victim advocate could be called to testify in a trial.
“This is tantamount to saying that lawyers can no longer have confidentiality with their clients. This is a big deal,” said Erin Thornley-Parisi, executive director of the Rape Crisis Center.
Hanrahan’s office said he could not comment on an open case. Hanrahan later offered a copy of a letter written to Thornley-Parisi to the Cap Times expressing his frustration with her comments, saying his letter does “not address the substance of the case.”
Hanrahan made the decision in the case of Quintez Cephus, a former University of Wisconsin-Madison football player who has been charged with third-degree sexual assault and second-degree sexual assault of an intoxicated victim, in a case involving two women who said they were intoxicated and could not consent. The trial is scheduled to begin at the end of the month, and Cephus has said the incident was consensual.
Attorney Jennifer Binkley appeared in Hanrahan's court Thursday representing former RCC advocate Valerie Johnson, requesting that a subpoena issued to Johnson be quashed. Hanrahan ultimately denied the request.
According to a motion filed by Binkley, Johnson was called to the hospital to provide support for a victim of sexual assault and was present for a forensic nurse exam and police interview, at the victim's request. She worked with a second woman “in a limited capacity” and was not present for her exam or police interview. As part of standard RCC advocate practice, she told the women their communications with her were privileged, the motion says.
Wisconsin statute 905.045 states that victims have the privilege of confidential communication with victim advocates who are “acting in the scope of his or her duties as a victim advocate,” and if the communication was for “the purpose of providing counseling, assistance or support services to the victim.”
In May, Johnson received a subpoena to appear in court and was told to bring notes relating to the forensic nurse exams of the women, Binkley’s motion says.
The motion argues that while the presence of others in the examination and police interview “nullifies the victim’s privilege” under that law, Johnson “should not be forced to cede her confidential relationship with the victims.”
“Even in a situation, like the present case, where the advocate is present only to offer emotional support to the victim, the advocate should not be forced to testify to matters surrounding that situation,” the motion reads. “To do so violates the trust that is essential to the relationship.”
Any information from the forensic nurse exam or police interview could come in testimony by the forensic nurse, police officer or audio tape of the police interview, making Johnson’s testimony about those topics redundant, the motion argued.
In a written response asking the court to deny Binkley’s motion, the defense argued that the woman consented to having the police interview taped, and it was a “purely investigative interview and there is no privilege as to anything that was said on tape." The response also says the "scope of the proposed examination" would be limited to the taped interview.
“The vague notion that having Valerie Johnson testify about her part in this interview will violate the trust relationship is legally and factually unfounded,” the defense argued, adding that the woman “knew this was part of the police investigation and not part of a counseling session.”
The defense argued that Johnson “interjected herself into the conversation and her comments are fair game," saying "she was involved as a participant at times and it is fair to ask her questions about her participation."
According to WKOW last Thursday, Cephus' defense argued that Johnson influenced or tried to “influence the investigative process” in the police interview. Hanrahan said communication between a victim and advocate is confidential, but ruled in this case Johnson can be called as a witness if the interview is part of trial evidence, WKOW reported.
WKOW reported that Hanrahan made this ruling “because Johnson went beyond counseling and assistance in a police interview setting.” Binkley said in an email that she and her client “do not agree with the earlier media representation" of Hanrahan's reasoning for his ruling, but had no further comment.
RCC condemned Hanrahan’s decision in a Friday statement, calling it unsettling and saying it would violate the confidentiality between a victim and advocate as outlined in Wisconsin statute 905.045.
“Trust between an advocate and a victim is sacred and essential to their healing process, which is why the Wisconsin State Statute exists in the first place,” the statement said, adding that the move “sets a chilling precedent for future cases of sexual assault.”
RCC advocates accompanied victims on almost 600 visits to emergency rooms, police stations and courtrooms in 2018. Advocates inform victims about their options, such as deciding whether or not they want to have evidence collected or make a police report, and ensure their rights are upheld at all times, Thornley-Parisi said.
“It’s incredibly important to (victims’) long-term healing process that their voice is heard, because their voice was taken away, that they know that their body is their own, because their bodily autonomy has been taken away,” she said. “We want to make sure that the victim is in charge of all the evidence that came of their body.”
“Sometimes we will speak up if there is misinformation. We will clarify information,” she said.
If advocates can be called to testify, Thornley-Parisi said, “it basically is saying that an advocate can’t be present or if they are present, everything that happens between the victim and the advocate has to be told in court and that essentially eliminates our role,” Thornley-Parisi said.
Domestic Abuse Intervention Services also relies on this law when providing help for victims of domestic violence, said DAIS executive director Shannon Barry.
“I don’t know the details of the facts of this specific case, but I am concerned about the precedent that could be set in terms of other defense attorneys trying similar tactics with victim advocates, both with sexual assault and domestic violence cases,” Barry said.
“Victims are often at a disadvantage, just in general,” Barry said. “There’s very few support systems in many ways within the court systems, so this could have a potentially chilling effect on other victims.”
This is part of a larger issue, Thornley-Parisi said: how a sexual assault victim is treated in court can vary depending on the judge on the case.
Thornley-Parisi was one of several advocates who spoke out against Judge Ellen Berz in 2017, after Berz decided to incarcerate a juvenile sexual assault victim who would not testify against her attacker. Berz also refused to grant restraining orders to several women seeking protection from male partners, critics said.
How victims are treated is the “luck of the draw,” Thornley-Parisi said, because judges can choose whether they want to participate in trauma-informed care training. Some judges are “incredibly disrespectful” to victims, she said, but noted she has not heard that Hanrahan was among them.
In his letter to Thornley-Parisi, Hanrahan said he was disappointed that she had spoken out about her opinion that his ruling was not consistent with law even though she was not present in court and did not read the court transcript. He said Thornley-Parisi had chosen to “recklessly besmirch (his) reputation.”
Hanrahan also outlined his previous experience working with sexual assault victims, including an almost 20-year career “sensitively counselling sexual assault survivors and vigorously prosecuting perpetrators of these crimes,” and his time as the former head of the Domestic Violence Unit in the Milwaukee DA Office.
“As a judge, I believe that I have attained a solid reputation as being compassionate toward crime victims, skilled at applying the rules of evidence in trial and appropriately sentencing convicted rapists,” he wrote.
Hanrahan wrote than when the trial is over, he would be pleased to sit down and explain the “complicated interplay” of Wisconsin law on the matter and “how to best meet the needs of your clients, while ensuring the confidentiality of communications."
This story has been updated to include comments from Judge William Hanrahan.