Last week the Utah Supreme Court released an opinion agreeing with me (and the Utah Crime Victims' Legal Clinic) that a crime victim was entitled to be heard in appellate court proceedings concerning whether to release the victim's mental health counseling records. While the decision was (quite properly, in my view) protective of crime victims' rights, one oddity in the decision was its first sentence—which used the term "alleged" to describe the child sexual assault victim in the case, F.L. The opinion began: "F.L. is the alleged victim of sex crimes charged against David M. Chadwick." I have filed a petition for reconsideration, asking the Court to remove the term "alleged" from its opinion. At this point in the proceedings, the defendant has been convicted of the crime of child sexual assault against F.L. Accordingly, the term "alleged" is a legally inaccurate description of the victim's status—and inappropriately expresses incredulity about her testimony at trial.
Some quick background about the case: The defendant was charged with sexually assaulting F.L. when she was child. In the trial court, he sought F.L.'s mental health counseling records—a request that was mostly denied by the trial court judge. At trial, F.L. testified that the defendant sexually assaulted her. The jury then convicted the defendant of one count of child sexual assault.
The defendant appealed, asking the Utah Court of Appeals to release F.L.'s records to him for purposes of developing his appellate arguments. F.L. sought to intervene to protect the confidentiality of her records. The Court of Appeals refused to allow intervention and, on review of that refusal, the Utah Supreme Court released its opinion holding that F.L. was entitled to be heard in the Court of Appeals on the release-of-records issue.
