2019 - 2020 LEGISLATURE

2019 Senate BILL 20

February 8, 2019 - Introduced by Senators Petrowski, Wanggaard, Feyen, Stroebel, Cowles, Olsen, Marklein and Jacque, cosponsored by Representatives Spiros, Petryk, Novak, Kuglitsch and Mursau. Referred to Committee on Judiciary and Public Safety.

SB20,1,2 An Act to create 950.04 (1v) (df), 971.313 and 974.05 (1) (e) of the statutes; relating to: obtaining crime victim mental health treatment records.

Analysis by the Legislative Reference Bureau

This bill creates a procedure by which a defendant in a criminal case may seek access to the mental health treatment records of a crime victim that are not in the possession of or under the control of a government entity when he or she believes that those records contain information that is crucial to the defendant's defense.

Under the bill, if a defendant wishes to gain access to the mental health treatment records of a crime victim, he or she must file a motion describing the information sought and show that there are mental health treatment records that are reasonably likely to contain the information sought, that the information is necessary to formulate an articulated theory of defense, and that the information is not available from any other source. If the court finds that the defendant has made this showing and that the potential benefit to the defendant is greater than the harm to the crime victim from disclosure, and if the crime victim consents, the court may conduct an in camera review of the mental health treatment records. Upon reviewing the records, if the court determines both that the information in the mental health treatment records is necessary to an articulated theory of defense and that the benefit to the defendant from disclosure is greater than the harm to the crime victim from disclosure, or determines that the evidence is otherwise exculpatory, the court may order disclosure of the records. Following this order, the crime victim may review the records that the court has determined should be disclosed and may consent to disclose the records, may appeal the court's decision, or may decline to disclose the records and be barred from testifying at the trial.

If the crime victim declines to disclose his or her mental health treatment records for an in camera review, the court must abide by his or her declination and must permit the victim to testify at trial. The defendant, however, may then comment on the declination and question the victim about those records.

All filings and records pertinent to this process and the mental health treatment records of the victim are to be sealed by the court. Additionally, all decisions of the court during this process may be appealed at any time by the state or the crime victim as a matter of right.

This bill also adds enumerated rights to the basic bill of rights for victims describing the right of a victim to privacy in his or her mental health treatment records, in accordance with the new procedure that the bill creates.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB20,1 Section 1 . 950.04 (1v) (df) of the statutes is created to read:

SB20,2,3 950.04 (1v) (df) To privacy in his or her confidential mental health treatment records, in accordance with the procedure under s. 971.313.

SB20,2 Section 2. 971.313 of the statutes is created to read:

SB20,2,6 971.313 Obtaining victim mental health treatment records. (1) Definitions. In this section:

SB20,2,9 (a) “Crime victim” has the meaning given for “victim” in s. 950.02 (4) or a guardian ad litem appointed under sub. (3) (c) 2. if a person identified under s. 950.02 (4) (a) 2. has interests that are adverse to a child victim.

SB20,3,3 (b) “Mental health treatment records” means all records that are not in the possession of a government agency that are created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism, drug dependence, or other mental health issues and that are maintained by treatment facilities as defined in s. 51.01 (19), by psychologists licensed under s. 455.04 (1), or by licensed mental health professionals as defined in s. 51.01 (11m). “Mental health treatment records” does not include psychotherapy notes, as defined in 45 CFR 164.501, that are maintained for personal use and kept separate from other mental health treatment records.

SB20,3,6 (c) “Necessary to an articulated theory of defense” means that the evidence is necessary to a determination of guilt or innocence by tending to create reasonable doubt that would not otherwise exist.

SB20,3,12 (2) Motion for discovery of mental health treatment records. (a) Notwithstanding ss. 51.30 (4) (b) 4. and 146.82 (2) (a) 4., a defendant seeking discovery of a person's mental health treatment records shall file a confidential motion, sealed under s. 801.20, at least 60 days before trial, unless the court extends the time for filing upon a specific finding of good cause, including when there has been new discovery.

SB20,3,15 (b) In a motion under par. (a), the defendant shall submit a fact-specific good faith offer of proof and a supporting affidavit from someone with personal knowledge that demonstrates all of the following:

SB20,3,17 1. The specific information that is sought from the mental health treatment records.