Massachusetts Appeals Court Affirms Maynard Man’s Child Rape Conviction

The Massachusetts Appeals Court today upheld the child rape conviction against a Maynard man who had sex with a 15-year-old girl.  The name of the case is Commonwealth v. Olivier.

The defendant was charged with multiple counts of forcible rape of a child and was convicted of the lesser-included offense of statutory rape (which means the sex between the defendant and the victim was consensual, but the victim was younger than 16).  The victim has been living with her grandparents in New Hampshire when she began communicating with the defendant.  She told the defendant she wanted to run away from her grandparents’ home and the defendant made plans to pick her up.  In November of 2011, the victim went with the defendant to his home in Maynard and had sex with him.  She was 15 years old.  She went home later in the week and her grandmother reported to the police that the victim and the defendant had been sexually active.  The Maynard Police Department initiated an investigation that culminated with the defendant’s prosecution.  A Middlesex County superior court jury found the defendant guilty of statutory rape and because he had previously been convicted of a sex crime, he was sentenced to a mandatory minimum prison sentence of 15 years.

The defendant appealed on a number of grounds, including that his defense had been prejudiced because a judge had denied his motion to obtain the victim’s medical records and school records.  Before the trial began, the defendant obtained a letter between two of the victim’s doctors discussing her treatment.  The letter said: the victim had sought counseling for posttraumatic stress disorder (PTSD) for an incident involving her stepfather; the victim said she would discuss the alleged rape the following week; and the victim had a plan at school to address her PTSD.  Based on this letter, the defense attorney requested a court order compelling the victim’s school and her counselor to produce her records.  A superior court judge denied the defense request and the Appeals Court agreed the defendant was not entitled to production of the documents.  In Massachusetts, a litigant who seeks production of records held by a third party (such as a counselor) is required to satisfy the so-called Dwyer protocol.  The protocol requires the moving party to establish that the requested documents are relevant, cannot be obtained through other avenues, are necessary for the party to prepare for trial, and that the request is not intended as a “fishing expedition.”  With respect to the requested medical records, the Appeals Court ruled the defendant had not satisfied the first prong of the Dwyer protocol – that the records were relevant.  The Court said information related to the victim’s PTSD diagnosis had nothing to do with the rape allegations, and there is no evidence that the victim actually spoke to the counselor about the rapes.  Regarding the school records, the Court said the defendant failed to establish there would be any information at all about the alleged rapes contained therein.  Therefore, the defendant was not entitled to the production of any of the requested records.

This case perfectly illustrates the difficulty in obtaining medical or counseling records of alleged victims in sexual assault cases.  The defendant usually files motions for production and argues that it is reasonable to believe there will be relevant evidence in the records.  Of course, because the defendant hasn’t seen the records yet, he cannot tell the judge with certainty what the records will contain.  The prosecutor always accuses the defense attorney of engaging in a fishing expedition.  As a result, judges often refuse to order the production of the records and it is never known whether relevant, or even exculpatory, evidence is never presented to the jury.