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02/11/88 the People of the State of v. Leslie Foggy

February 11, 1988






STAT. 1985, CH. 110, PAR. 8-802.1.


521 N.E.2d 86, 121 Ill. 2d 337, 118 Ill. Dec. 18 1988.IL.178

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Rock Island County, the Hon. John Donald O'Shea, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court. JUSTICE SIMON, Dissenting.


Following a jury trial in the circuit court of Rock Island County, the defendant, Leslie Foggy, was convicted of aggravated criminal sexual assault and unlawful restraint. The trial Judge sentenced the defendant to concurrent 30-year and 3-year terms of imprisonment for those offenses. The appellate court affirmed the judgment (149 Ill. App. 3d 599), and we allowed the defendant's petition for leave to appeal (107 Ill. 2d R. 315(a)).

The defendant does not contest the sufficiency of the evidence of his guilt, and that evidence may be summarized briefly. The offenses in question occurred in Rock Island on July 18, 1985. The complaining witness, a 26-year-old woman, was abducted from in front of her home around three o'clock that morning by the defendant, who forced her into a car and drove off. The defendant told the victim that he had a gun, and he compelled her to perform oral sex. The defendant eventually drove to a park in the area, where he raped the victim. The defendant later released her near a convenience store, and she told the sales clerk what had happened. The victim was then taken to a local hospital. There, she was shown a photographic array by police, and she identified the defendant as her attacker. The defendant was arrested at his home following the identification. He testified at trial, and he said that the sexual acts were consensual and that afterwards the victim became upset when he refused to give her money.

The sole issue raised by the defendant in this appeal concerns the constitutionality of the statutory privilege for communications made to rape crisis counselors. (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.1.) The Illinois Coalition Against Sexual Assault has filed a brief as amicus curiae in support of the provision. Section 8-802.1 of the Code of Civil Procedure provides, in its entirety:

"(a) Purpose. This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. On or after July 1, 1984, 'rape' means an act of forced sexual penetration or sexual conduct, as defined in Section 12 -- 12 of the Criminal Code of 1961, as amended, including acts prohibited under Sections 12 -- 13 through 12 -- 16 of the Criminal Code of 1961, as amended. 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.

(b) Definitions. As used in this Act: (1) 'Rape crisis organization' means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse.

(2) 'Rape crisis counselor' means a person who is employed in any organization or association defined as a rape crisis organization under this Section, who is a psychologist, social worker or a volunteer who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization.

(3) 'Confidential communication' means any communication between an alleged victim of aggravated criminal sexual assault, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse or an attempt to commit any such offense and a rape crisis counselor in the course of providing information, counseling and advocacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided.

(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.

In the aftermath of the assault, the victim sought and obtained counseling from the Quad City Rape/Sexual Assault Counseling Program. Before trial, the defendant issued a subpoena duces tecum on that organization seeking information regarding the complaining witness. Motions to quash were filed by the State and by Joni Dittmer, who was the rape crisis counselor assisting the victim. They contended that the victim's communications with Dittmer were absolutely privileged under section 8 -- 802.1 and therefore could not be disclosed without the victim's consent, which she had not given. A copy of the subpoena does not appear in the record in this case; according to the circuit Judge's order, the defendant sought production of "'all records, reports, notes, memoranda, statements, oral, recorded, or written, and any and all other documents concerning the alleged assault upon the witness.'" A hearing was conducted on the matter, and at that time counsel narrowed the scope of his request for information, indicating that he was seeking information that could be used for impeachment purposes. At the hearing, the State presented testimony from Berlinda Tyler-Jamison, the program director, and from Joni Dittmer, the counselor in this case, regarding the operation and services of the Quad City Counseling Program. In her testimony, Joni Dittmer explained that she had told the victim that the counseling services were free and confidential. Dittmer said that part of her assistance involved what she termed legal advocacy, which, she explained, meant that she helped the victim keep track of the legal proceedings in the case and would attend court sessions with her.

The circuit Judge quashed the subpoena, ruling that the communications between Dittmer and the victim were protected from disclosure by the statutory privilege and that the statute was constitutional. Specifically, the circuit Judge found that the Quad City Counseling Program was a rape crisis organization within the meaning of section 8 -- 802.1(b)(1), that Dittmer was a rape crisis counselor within the meaning of section 8 -- 802.1(b)(2), and that Dittmer and the victim had had six separate conversations and that each one was a confidential communication within the meaning of section 8 -- 802.1(b)(3). The court also found that at no time had the victim consented to Dittmer's disclosure of any of those communications. The circuit Judge also rejected the defendant's argument that the statute was unconstitutional. The Judge noted that the victim in this case would be testifying in court and therefore subject to cross-examination. For those reasons, the court did not believe that the communications at issue here represented "a significant or irreplaceable means of impeaching her as a government witness." The Judge concluded that there was no substantial conflict in this case between the statutory privilege and the defendant's right to conduct a defense to the charges against him. The circuit Judge therefore quashed the subpoena. The appellate court affirmed the trial court's judgment, rejecting the defendant's challenge to the constitutionality of section 8 -- 802.1.

The defendant renews here his argument that the privilege accorded by section 8 -- 802.1 to communications between sexual assault victims and counselors violates his Federal constitutional rights to due process and to confront the witnesses against him. (U.S. Const., amends. VI, XIV; Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065; see also Ill. Const. 1970, art. I, § 8; People v. Tennant (1976), 65 Ill. 2d 401, 408 (the Federal and State confrontation clauses "are meant to protect the same interest").) The defendant asks for an in camera inspection of the records of the Quad City Counseling Program concerning the victim, with disclosure to the defense of her statements recounting the occurrence.

In support of his argument, the defendant cites the decisions of other courts that have refused to enforce, or have refused to recognize, an absolute privilege for communications made by sexual assault victims to counselors. In addition to applying their own precedents concerning privileges, those courts have relied on Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920, which found constitutional violations in State laws excluding certain forms of evidence from trial, and on United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090, which rejected a broad claim of executive privilege in the face of an articulated need for information. (See In re Robert H. (1986), 199 Conn. 693, 509 A.2d 475; Advisory Opinion to the House of Representatives (R.I. 1983), 469 A.2d 1161; see also Matter of Pittsburgh Action Against Rape (1981), 494 Pa. 15, 428 A.2d 126 (refusing to recognize a common law privilege for communications made to rape counselors; the legislature has since enacted a statute providing an unqualified privilege (see 42 Pa. Cons. Stat. § 5945.1 (1982)).) A contrary result has been reached by the Colorado Supreme Court, which held that an in camera inspection of a sexual assault victim's counseling records was barred by that State's psychologist/patient privilege. People v. District Court (Colo. 1986), 719 P.2d 722.

In Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, the Court found a violation of the defendant's confrontation right in a prohibition on certain impeachment. Before trial in that case, the prosecution requested a protective order to preclude defense counsel from cross-examining one of the State's principal witnesses regarding his juvenile record. Defense counsel argued that the information would be relevant to show possible bias on the witness' part in assisting the police in the matter. The trial Judge granted the protective order, relying on State provisions that generally precluded use of juvenile records in judicial proceedings. At trial, defense counsel asked the witness whether he was biased in the State's favor but, consistent with the trial Judge's ruling, did not make any inquiry concerning the witness' juvenile record. The United States Supreme Court reversed the defendant's conviction. The Court did not believe that the cross-examination of the witness had been adequate, for although defense counsel had been able to ask the witness whether he was biased, counsel had not been able to explore the possible sources of bias. Moreover, the Court did not believe that the State's interest in preserving the confidentiality of juvenile records warranted their broad exclusion in that case. The Court concluded that ...

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