AB11: Bill Text

AB11,6,3 (b) 1. If the crime victim does not consent to an in camera review of his or her mental health treatment records by the court, the court shall follow the procedures in sub. (6) (a).

AB11,6,7 2. If the crime victim consents to an in camera review of his or her mental health treatment records by the court, the court shall examine the mental health treatment records in camera for the presence of any evidence that is necessary to an articulated theory of defense.

AB11,6,10 (c) Following an in camera review of the mental health treatment records under par. (b) 2., the court may order the disclosure of the relevant records only if the court determines one of the following:

AB11,6,13 1. The information in the mental health treatment records is necessary to an articulated theory of defense and the benefit to the defendant from disclosure outweighs the harm to the crime victim from disclosure.

AB11,6,16 2. The information in the mental health treatment records is exculpatory because it is necessary to a determination of guilt or innocence by tending to create reasonable doubt that would not otherwise exist.

AB11,7,2 (d) If the court determines under par. (c) that some or all of the mental health treatment records are eligible for disclosure, the crime victim shall have the opportunity to review the records identified for disclosure. Within 45 days from the date of the order under par. (c), the crime victim and the state shall notify the court whether the crime victim or the state intends to appeal the order pursuant to s. 974.05, and if neither the crime victim nor the state intends to appeal the order, the crime victim shall indicate whether he or she consents or declines to consent to the disclosure of the relevant records. If the crime victim or the state appeals the order under par. (c) within 45 days, the crime victim's mental health treatment records may not be disclosed until the appeal has concluded.

AB11,7,5 (e) 1. After the appeal under par. (d) has concluded, the crime victim shall indicate whether he or she consents to the disclosure of his or her mental health treatment records.

AB11,7,9 2. If the crime victim does not consent to the disclosure of the mental health treatment records under par. (d) after the appeal has concluded or after the state and the crime victim each indicate that he or she or it does not intend to appeal the order, the court shall follow the procedures in sub. (6) (b).

AB11,7,14 3. If the crime victim consents to the disclosure of the mental health treatment records after the appeal has concluded or after the state and the crime victim each indicate that he or she or it does not intend to appeal the order, the court shall order disclosure of those records to the prosecuting attorney and to the defendant's attorney in accordance with the procedures in sub. (5).

AB11,7,19 (5) Disclosure of information; dissemination prohibited. (a) If the court orders disclosure of mental health treatment records, the order may include only those mental health treatment records or portions of mental health treatment records that are necessary to an articulated theory of defense or are otherwise exculpatory.

AB11,8,4 (b) If the court orders disclosure of mental health treatment records, the court shall enter a protective order under s. 971.23 (6) that provides that any record or information provided to the prosecuting attorney and to the defendant's attorney shall be confidential and may not be redisclosed or disseminated by the prosecuting attorney or the defendant's attorney unless specifically authorized by the court. Any provided record or information in paper form shall be returned to the court at the conclusion of representation. Any provided or stored electronic record or information shall be deleted at the conclusion of the representation by the prosecuting attorney and the defendant's attorney, both of whom shall provide the court with an affidavit affirming that the records or information have been deleted.

AB11,8,6 (c) The court shall determine the admissibility of any disclosed mental health treatment records under the applicable rules of evidence.

AB11,8,8 (d) The court shall retain any mental health treatment records under seal for the applicable period of time as specified in SCR 72.01.

AB11,8,12 (6) Crime victim nonconsent; appeals of court decisions regarding mental health treatment records. (a) If the crime victim does not consent to in camera review of his or her mental health treatment records, the court shall do all of the following:

AB11,8,13 1. Abide by the declination of the crime victim.

AB11,8,14 2. Permit the crime victim to testify at the trial.

AB11,8,16 3. If the case is tried by a jury, inform the jury immediately following the testimony of the crime victim and before jury deliberations of all of the following:

AB11,8,18 a. The defendant filed a motion for discovery of mental health treatment records that met the requirements for an in camera review.

AB11,8,20 b. The crime victim declined to disclose mental health treatment records for inspection by the court.

AB11,8,22 c. The crime victim has the right to decline an in camera review of the mental health treatment records.

AB11,8,25 4. Notwithstanding any prohibition under s. 905.11 to 905.13, permit comment on the declination by the crime victim and allow the defendant to draw any reasonable inference therefrom.

AB11,9,4 (b) If the crime victim does not consent to disclosure of his or her mental health treatment records following an in camera review, the court shall prohibit the crime victim from testifying at the trial and the court may not order disclosure of the crime victim's mental health treatment records.

AB11,9,7 (c) Any of the following orders of the court may be appealed to the court of appeals as a matter of right by the state under s. 974.05 or by the crime victim in the manner under s. 974.05:

AB11,9,10 1. The order of the court determining that the defendant has met his or her burden of proof under sub. (2) (b), triggering an in camera review of mental health treatment records.

AB11,9,12 2. The order of the court determining that the mental health treatment records should be disclosed under sub. (4) (c).

AB11,9,17 (7) Privilege. The consent of a crime victim to review of mental health treatment records under sub. (4) (a) or disclosure of mental health treatment records under sub. (4) (d) does not waive any privilege under s. 905.11 or 905.12. A crime victim may still claim any applicable privilege for confidential communications or for information reviewed or disclosed under this section.

AB11,9,23 (8) Psychotherapy notes. Except for uses or disclosures described in 45 CFR 164.508 (a) (2) (i) and (ii), a defendant may not obtain and a court may not order disclosure of psychotherapy notes, as defined in 45 CFR 164.501, that are maintained for personal use and kept separate from other mental health treatment records unless the crime victim voluntarily provides an authorization in accordance with 45 CFR 164.508 to disclose psychotherapy notes.

AB11,3 Section 3 . 974.05 (1) (e) of the statutes is created to read:

AB11,10,1 974.05 (1) (e) Order granting relief under s. 971.313 (6) (c) 1. or 2.

AB11,10,2 (End)