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People v. Foggy





Appeal from the Circuit Court of Rock Island County; the Hon. John Donald O'Shea, Judge, presiding.


Defendant appeals from his convictions of aggravated criminal sexual assault and unlawful restraint. He raises two issues for our consideration: (1) whether the privilege afforded confidential communication between rape victims and rape crisis counselors by section 8-802.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1) unconstitutionally impairs a defendant's sixth and fourteenth amendment rights to due process and to confront witnesses against him; and (2) whether a misstatement of law in the prosecutor's closing argument deprived defendant of a fair trial.

Since the facts underlying defendant's convictions are not disputed on appeal, they will not be repeated here except as needed to explain our resolution of the foregoing issues.

The victim in this case, Sheila Rafferty, complained that the defendant had abducted her from in front of her home in Rock Island during the early morning hours of July 18, 1985. For over an hour, defendant drove around the area with Rafferty locked in his car. He eventually stopped in a park, where he performed an act of sexual intercourse, and then allowed her to leave near a 7-11 store. Rafferty told the 7-11 store clerk to write down the letters and numbers of defendant's license plate. She then telephoned the police to report the incident. A complaint was filed the same day and a warrant for defendant's arrest was issued and executed.

Following a preliminary hearing and the filing of formal charges, defendant served a subpoena duces tecum on the Quad City Rape/Sexual Assault Counseling Program seeking discovery of communications between Sheila Rafferty and rape crisis counselor Joni Dittmer. The subpoena was resisted with motions to quash filed by both Dittmer and the prosecutor. The motions were heard and allowed by the court on grounds that the confidential communications were absolutely privileged pursuant to section 8-802.1 of the Code of Civil Procedure, that Rafferty had not waived the statutory privilege, and that the legislation at issue was not unconstitutional.

In this appeal, defendant renews his challenge to the constitutionality of the absolute privilege of confidentiality granted by section 8-802.1. Defendant contends that the privilege afforded by this section cannot withstand constitutional analysis under the sixth and the fourteenth amendments since it precludes even an in camera hearing for the purpose of determining whether relevant statements may have been made by the victim which would be exculpatory of defendant or could otherwise impeach the victim's testimony. The issue presented is one of first impression in Illinois, but our attention is directed to precedent in two foreign jurisdictions in which the courts have considered similar challenges to the privileges afforded confidential communications between rape victims and their counselors by statutory enactments. (In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; People v. District Court (Colo. 1986), 719 P.2d 722.) The courts in these cases reached what appear to be irreconcilable results. Before considering the rationales applied by them, however, we deem it appropriate to review the history of our own legislation and a few precedential opinions relating to analogous privileges.

As originally enacted effective July 13, 1982, the statutory privilege afforded by section 8-802.1(c) provided in its second paragraph for conditional confidentiality. The subsection as originally adopted reads as follows:

"Where any victim or alleged victim of rape, deviate sexual assault, incest, or aggravated incest makes a statement relating to the crime or its circumstances during the course of therapy or consultation to any counselor, employee, or volunteer of a rape crisis organization, the statement or contents thereof shall not be disclosed by the organization or any of its personnel unless the maker of the statement consents in writing or unless otherwise pursuant to this Section.

If in any judicial proceeding, a party alleges that such statements are necessary to the determination of any issue before the court and written consent has not been given, the party may ask the court to consider the relevance and admissibility of the statements. In such a case, the court shall hold a hearing in camera on the relevance of the statements. If it finds them relevant and admissible to the issue, it shall order them disclosed." Pub. Act 82-783, article III, section 43, eff. July 13, 1982.

The stated purpose of the legislation appears in subsection (a):

"(a) Purpose. This Section is intended to protect victims of rape, deviate sexual assault, and incest from public disclosure of statements they make in confidence to counselors of organizations established to help them. Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes." Pub. Act 82-783, article III, section 43(a), eff. July 13, 1982.

When subsection (c) was amended by Public Act No. 83-678, effective July 1, 1984, the second paragraph was eliminated and a penalty provision was added, thereby rendering the privilege absolute and disclosure without consent a crime.

"(c) Confidentiality. No rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the consent of the victim.

(d) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor." Pub. Act 83-678, article ...

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