“Good job being a tattle tale to mom about me being rude *** things will happen to u if u keep being rude dad.”
That was the text message that “A.F.,” a girl adopted from a Russian orphanage, sent to her father, Marty, just before accusing him of sexual abuse (Marty Friend v. State of Indiana, 2020). Marty and Kathy, his ex-wife, had reportedly long struggled with A.F.’s aggressive, impulsive and manipulative behavior. To rebut her claims of abuse, Marty sought to share her treatment records with the trial court to provide insight into her behavioral issues. He planned to have his expert psychologist, Dr. Wingard, testify about reactive attachment disorder (RAD), a DSM-V diagnosis often given to children whose early social neglect impairs their ability to attach to caregivers.
Marty asked that a social worker who had been treating A.F. turn over treatment records, intending to show that her lying was consistent with an RAD diagnosis.
Invoking the therapist-patient privilege, the trial court did not mandate the social worker to turn over treatment records. The trial court also refused to allow Marty to present evidence of A.F.’s alleged RAD symptoms, including the text message above, records from the Russian orphanage and the expert testimony. The court of appeals considered the treatment privilege to be absolute, though the dissent in this case thought that the trial court should have allowed the judge to review the treatment records in private. Marty was ultimately convicted of child molestation and sentenced to a 30-year term. Even though some courts have decided that a defendant’s rights to present evidence favorable to their cases trump the absolute privilege of private therapeutic records, the U.S. Supreme Court ultimately declined to review this case, signaling the importance of therapist-patient privilege.
Nonetheless, therapeutic confidentiality is an essential tenet of psychotherapy, and there are harsh penalties in place for privacy violations. In addition, confidentiality is not merely an aspirational professional standard; it is an essential ingredient to clinical improvement: Research suggests that roughly 30% of therapeutic gains across modalities can be attributed to the therapist-patient relationship (Hubble, et al., 2002). Other research on therapists’ perspectives of alliances with children and adolescents suggests that empathy, sincerity and trust are among the most important factors in the working relationship (Campbell and Simmonds, 2011). A positive, trusting therapist-patient relationship can be corrective for emotionally and behaviorally disturbed children such as those with RAD, since these patients are more likely to have had negative attachment experiences with other adults (Manso, et al., 2008; Zegers, et al., 2006).
Overall, balancing defendant rights and therapist-patient privilege requires serious consideration of the therapeutic alliance and the significance of confidentiality and trust, particularly with troubled minors.
