Mass. Supreme Judicial Court Hears Arguments on Whether Section 51A Report Triggers Dwyer Access to Therapy Records

The Massachusetts Supreme Judicial Court heard argument over whether a mandated Section 51A/51B report and the resulting referral to prosecutors provide a defendant the preliminary showing required under Lampron–Dwyer to obtain confidential therapeutic records in a child sexual‑assault prosecution.

The issue matters because it pits two policies against one another: statutory reporting duties and child‑victim confidentiality on one hand, and a defendant’s constitutional right to evidence that might bear on fabrication or credibility on the other. Counsel for the defendant argued that the flow from an initial complaint to mandated reporting and immediate referral to police and prosecutors can satisfy Dwyer’s preliminary showing; counsel for the victim and the Commonwealth urged the court not to adopt so broad a rule.

Merit Schnipper, attorney for Darmel Safi, told the court that the case is atypical and that the factual sequence alleged by defense counsel supports the inference that the minor discussed the alleged assault during custodial mental‑health care. "This is a very unusual Dwyer case because we're not reaching the court after a trial conviction," Schnipper said, arguing the record shows an emergency psychiatric intervention, a crisis evaluation by Clinical and Support Options (CSO) that produced a Section 51B report, and about two weeks of inpatient treatment. Schnipper added that, given that statutory channeling, "I think it gives a defendant the basis to satisfy Dwyer."

Asarette Frausto, attorney for AR (the alleged victim), urged the court to reject the idea that the mere fact of a Section 51A report is alone sufficient to obtain therapeutic records under Lampron–Dwyer. Frausto argued the case law requires more than proof that treatment occurred; defendants must show particularized, evidentiary reason to believe the records contain material information such as prior inconsistent statements or other impeachment material. "We do actually know what my client has said," Frausto said, pointing to details in the 51A report — including dates, meeting locations, and an account that she said she was raped — and arguing those details undermine a theory that the records will show fabrication.

Cynthia Von Flater, assistant district attorney for the Northwestern District, told the court the trial court's order granting access to multiple years of mental‑health records was too broad and rested on vague affidavits. She described the single justice's memorandum as careful and noted it left the order "without prejudice so that the attorneys could go back and make a more specific showing, if they decided to." The Commonwealth also told the justices it had not produced all of the cited discovery to the appellate court and questioned the sufficiency of the defense's factual proffer.

Throughout argument, several justices pressed both sides on legal standard and proof. Justices asked whether a Section 51A/51B referral that results in an indictment should be treated as a near‑automatic basis for a Dwyer summons, how to define "evidentiary and relevant," and when a trial judge may fairly assess claims of potential inconsistency without seeing the full records. Counsel acknowledged the protective mechanisms that Lampron–Dwyer imposes — confidentiality orders, in camera review, and limits on trial use — but disagreed about whether those protections resolve the underlying threshold question.

Attorneys and the court also discussed related precedent the parties cited, including Lampron and Dwyer, Labrad, Sealy, Jones and Bourgeault, and the older Stockhammer/Bishop line that prompted the creation of the modern two‑step process. Defense counsel argued the statutory reporting structure and the timing of crisis evaluation and inpatient treatment make this case stronger than the typical post‑treatment access request; victim's counsel and the Commonwealth urged fidelity to cases that require a concrete, particularized showing beyond mere treatment or a mandatory report.

The court did not announce a decision at argument. The justices asked questions about the appropriate temporal scope of any records order (defense counsel suggested a limited pre‑allegation window such as six months, while others noted the trial judge had previously allowed records spanning multiple years), the role of forensic SANE interviews and police reports in cross‑checking records, and the procedural posture (the single justice’s memorandum and the possibility of renewed motion practice before the trial judge).

If the court ultimately holds that a Section 51A/51B referral by itself satisfies the Dwyer threshold, it would expand the circumstances in which defense counsel can seek and potentially review sensitive therapeutic records subject to the protective procedures in Lampron–Dwyer. If the court rejects that approach and requires a more particularized showing of likely impeachment or inconsistency, it will reaffirm a narrower standard protecting victim confidentiality in many cases.

The justices took the matter under advisement; any opinion could affect how lower courts evaluate requests for therapeutic records in child sexual‑assault prosecutions across the Commonwealth.