The trial of an Anchorage man accused of sexual assault has forced the Alaska courts to address a challenging question: Should a victim's private medical and mental health records be fair game? At stake is the proper balance in Alaska between a crime victim's right to privacy and a criminal defendant's right to confront his or her accuser.
The victim, identified by the initials N.G., has said she was violently attacked on an April night in 2010 in the greenbelt behind William Tyson Elementary School in Anchorage's Mountain View neighborhood. The man she was with that evening, David Standifer, denies he hurt her. More than three years later, the night's events still haunt them.
She's had to not only wait for trial, but also to defend her own privacy and then find the will to testify in court, sharing a courtroom with the man she believes punched her in the face and choked her as he forced himself on her against her will.
He's had to wait for more than three years for the chance to clear his own name.
NG's efforts to protect her own mental health records from becoming evidence at Standifer's trial will give future victims and state prosecutors more authority to resist "fishing expeditions" -- broad reaches by defense attorneys for any evidence that might help prove a defendant's innocence or cast doubt on the reliability of his accuser.
Victim advocates refer to that trial practice as "muddying the water" -- the attempt to give jurors a reason to doubt a rape victim's version of events.
A self-admitted alcoholic who first started drinking at the age of 11, NG told jurors she'd first met Standifer late one April evening, just before his attack on her. She'd spent the day drinking, but was starting to feel the effects of withdrawal -- the "shakes." Somewhere near the Red Apple Grocery store in Anchorage's Mountain View neighborhood, Standifer and NG crossed paths on Bragaw Street. She thought he might have alcohol with him, which piqued her interest.
She was right.
"I had a drink in my hand and that's probably what she wanted," Standifer told police in a deep, gravelly voice in the hours after his arrest. He'd also been drinking, and when he and NG met, he was carrying a cup from McDonald's that he'd filled with vodka. This week, jurors heard Standifer's version of events in his own words as prosecutors played audio of his police interviews in court.
Homeless, he'd set up camp beneath a spruce tree, and NG walked with him back to that location. According to Standifer, at some point the two of them "started messing around," but he claimed he'd called off the intimate interlude after becoming disinterested. In the interview, he made derogatory remarks about her personal hygiene, then explained "I passed out and I didn't want to mess with her no more." As the interviews continued, Standifer became frustrated that he was being charged for what he viewed as nothing more than "feeling her up."
NG, whom passersby found in the street, hysterical, crying, half naked without pants, and bloody, gives a very different account of the encounter. It was violent, and she feared for her life.
She'd thought Standifer was camping in a more traditional homeless camp, among a cluster of other people. It surprised her to discover he was alone. Tired, she wanted to lay down. That's when his advances began, too aggressive for her liking, and soon, proceeding against her will. He wanted a blow job, and tried to force one. When she resisted, he punched her in the face. On her knees, her nose bloody from the assault, he continued to fondle her. She remembers him on top of her with an arm around her neck as she laid on her stomach. He was trying to have sex with her. Scared, choking on her own blood, she somehow broke away and ran for her life.
During the medical exam that followed after help came, she remembered feeling humiliated, dirty and violated.
Standifer was found found at his camp, sleeping. When rousting him, officers observed blood on his hand, sleeping bag, and in the snow. NG's backpack was still nearby. He surmised to officers the blood was the result either of NG being on her menstrual cycle, or later, perhaps because he had attempted to help her after she'd become injured, possibly by some other guy.
Ultimately, Standifer was charged with four counts of first degree sexual assault. Police and prosecutors believe he penetrated NG without her consent. He also faces an assault charge.
Does mental health history cast shadow of doubt?
Standifer, through his attorney, has raised doubts about whether NG's recollection of events is reliable. Her alcoholism, withdrawals, and a possible bipolar mental health diagnosis call into question whether she is able to actually perceive events, he has argued.
This second-guessing of a victim's mental capacity and memory is a dimension to rape trials that can make sticking with a case all the more difficult for victims, who in court must rely on more than their own words to prove a case against their attacker, and who aren't referred to as victims but as "complaining witnesses."
"Victims in NG's situation, or those similarly situated to her, might be reluctant to come forward," explained Shaun Sehl, an attorney with the Office of Victim's Rights who represented NG in her efforts to keep her records private.
In pursuing the theory that NG might be an unreliable witness, the defense sought access to her medical, alcohol treatment, and psychiatric treatment records. A Superior Court trial judge granted the request, with the caveat that the court would review the records first to determine what among them might fall outside the scope of doctor-patient privilege. NG appealed the ruling to the Alaska Court of Appeals and won -- she won't have to hand over her medical histories just because the defense thinks there's a chance they might contain something helpful to the accused.
During cross-examination, NG talked about her alcoholism. Although she had once been told she had bipolar disorder, there was no official diagnosis, and she's never received treatment for it.
That admission has opened the door for the defense to bring in an expert to testify about what Standifer characterizes as "the potential effects of bipolar disorder, alcohol-related blackouts, and alcohol withdrawal on a witness's ability to accurately perceive reality and to accurately describe their experiences."
According to the defense, the expert, Dr. Mark Zelig, is prepared to talk about how bipolar illness can be accompanied by false sensory experiences and false beliefs, impaired judgment and impulsivity. He may also talk about how acute alcohol withdrawal may impair perception and memory. Depending on the conditions witnesses may simultaneously be experiencing, their credibility and competency may be in question, Standifer's attorney, James Ferguson, told the court in a motion introducing Zelig and his credentials.
What's 'confidential' in Alaska?
Unlike some states, Alaska law does not offer a clear directive for the court about how to weigh the privacy interests of a victim against the constitutional rights of a defendant. While it acknowledges that "confidential communication" is subject to privilege, it doesn't specifically define what "confidential communication" means. Nor does it offer absolute protection for the privacy of relationships that occur when someone seeks psychiatric diagnosis and counseling or substance abuse treatment.
This leaves the courts with some ongoing and challenging issues, as Alaska Court of Appeals Judge Joel Bolger wrote in a post-opinion note published at the bottom of the court's ruling. Bolger pointed out that because of Alaska's tight privacy law, any orders that infringe on them could arguably need to be narrowly drawn to limit accessible information to only that for which there is a "demonstrable and compelling need." He also pointed out that other jurisdictions rely on a two-part test for access to a crime victim's treatment records: Is it likely that evidence favorable to the defense exists, and is it likely that the evidence will change the outcome of the case?
While NG's case did not require the Alaska Court of Appeals to take up these issues, Bolger observed that the circumstances "serve as a reminder that a healthy construction of this privilege is necessary to avoid infringing privacy interests protected by the constitution."
Sehl, the victim's rights attorney who successfully convinced the Alaska Court of Appeals to keep NG's medical records out of reach, sees the decision as a small step in the right direction for victim's rights.
"There may be legitimate reasons to get certain records. But this is not the case. And those cases are probably very few and far between," she said.
The prosecution has rested its case against Standifer. The defense begins its case Tuesday when the trial resumes.
Correction: This story originally reported that the recent court decision was issued by the Alaska Supreme Court. It was actually issued by the Alaska Court of Appeals.
Contact Jill Burke at jill(at)alaskadispatch.com