In Landmark Decision, New Hampshire Supreme Court Bolsters Privacy Rights for Victims and Patients

May 1, 2025 

FOR IMMEDIATE RELEASE 
Media Contacts:  
Amanda Grady Sexton [email protected] 
Alyssa Dandrea [email protected] 

Today, for the first time, the NH Supreme Court applied Article 2-b, Right of Privacy, a 2018 state constitutional amendment on privacy, giving people seeking counseling and victim advocacy services groundbreaking protections for their confidential records.   

Building a trusting, private relationship with a counselor or advocate is foundational to healing for crime victims. Unfortunately, criminal defendants have frequently used victims’ confidential records to intimidate and embarrass victims—and to deter them from disclosing abuse, reporting crimes and seeking justice. 

NH has long had statutes protecting the confidentiality of crisis center and therapy records. However, courts frequently overlook the required process when those records are sought. Victims are often not told that that their records are being requested and are not given an opportunity to rely on the laws that protect them. Instead, courts often issue orders that such records be handed over without the victim even being informed. That is exactly what happened in the underlying case.  

Background on the Case: 
The defendant in this case is being prosecuted in Belknap County for sexually assaulting a minor victim. Following a Grand Jury indictment, the defendant filed a motion seeking access to the victim’s confidential crisis center and mental health records. The victim was not given notice or an opportunity to object to this request; instead, a Superior Court judge issued an order requiring counselors and advocates to turn over their records for review by the court.  

The victim, represented by Nixon Peabody, LLP, moved to intervene and requested that the trial court suspend its orders. The Superior Court judge, however, ruled that the victim had to turn over her records. The victim appealed the lower court’s decision to the NH Supreme Court, which issued a decision in the case on May 1. 

In a unanimous opinion, the NH Supreme Court vacated the trial court’s ruling, raising the standards for accessing records and finding that any person whose privileged records are sought must be given notice and an opportunity to be heard before the court rules.  

Significant Engagement by NH and National Partners: 
Due to its groundbreaking nature, this case garnered significant involvement from the victim advocacy and mental health fields. The New Hampshire Coalition Against Domestic and Sexual Violence filed an amicus brief in this case in partnership with the state’s 12 crisis centers, the National Crime Victim Law Institute, the Confidentiality Institute, the National Network to End Domestic Violence, and the National Alliance to End Sexual Violence. The NH Community Behavioral Health Association also filed an amicus brief in support of the victim’s rights.  

The Supreme Court used a 2018 Constitutional Amendment to overturn its own prior case law that made it easier for defendants to access confidential records. Now, courts are required to engage in a specific process that involves the victim/patient before making any decision about reviewing or disclosing those records. 

Reaction to NH Supreme Court Opinion: 
The New Hampshire Supreme Court resoundingly declared that victims and those seeking services from mental health providers have a constitutional right to privacy and a right to be heard when that right is at issue in a case. Victims will no longer have to choose between their privacy rights and their ability to seek help from critical support services. 

NH Coalition’s Executive Director Lyn Schollett: “The outrageous practice of accessing victims’ irrelevant, personal information ends today. Granite staters who have experienced violent crimes and heinous losses can walk into the office of a crisis center or a therapist without fear that their conversations will become public.  They can slowly rebuild trust, and their lives, with the privacy they deserve." 

David Vicinanzo, Attorney for the Victim and Partner at Nixon Peabody, LLP: “Today, the Supreme Court has removed a major obstacle to justice for the victim in this case and for many others, especially women and children victimized by sexual assault or domestic violence. For decades, an erroneous interpretation of ‘due process’ has permitted perpetrators to have easy access to the mental health records of victims of these crimes, to then cherry pick and use to attack the victims for disclosing the abuse, as if victims of sexual or child abuse were presumed to be ‘crazy.’ The mere fear of having one’s privileged therapy or medical treatment records accessed by the defendant and made public was an invasion of privacy that deterred many victims from seeking justice because the system punished them for coming forward. 
  
“In this landmark ruling, the Court curtailed that practice by limiting access to such records to the rarest of circumstances. Now, the mental health and counseling privileges will be protected at the same level as the attorney-client privilege is protected. Victims of crime will be free to seek mental health treatment they may need or want. And criminal defendants will no longer have easy access to rummage through the privileged medical and mental health records of their victims, almost all of whom were women or children in sexual or domestic crimes.” 
 
Hilary Holmes Rheaume, Attorney for NH Coalition Amicus Brief and Shareholder at Bernstein, Shur, Sawyer & Nelson, P.A.: “Today marks a profound moment for victims across the country, and especially here in New Hampshire. For too long, our justice system has emphasized a defendant’s rights while placing victims in the defendant's shadow. With today’s decision, the New Hampshire Supreme Court has affirmed that victims have a fundamental right to be notified and heard—particularly when their privacy is at stake. This is a win for all victims of sexual assault, who now have protections that did not exist before today.” 
 
Other sources: 
Brief of the NH Community Behavioral Health Association: “The self-limiting effect stigma can have on an individual’s ability to continue mental health treatment is particularly at issue where the individual is confronted with the risk of disclosure of her records. Here, the risk of disclosure presents not only a potential barrier to continued treatment, but a risk of re-traumatization by the Court process itself.” 

Ilene Seidman & Susan Vickers, The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform, 38 Suffolk U. L. Rev. 467, 473 (2005): “For most sexual assault victims, privacy is like oxygen; it is a pervasive, consistent need at every step of recovery. Within the context of the legal system, if a victim is without privacy, all other remedies are moot.” 
 
About the Coalition: 
​NHCADSV is a statewide network of 12 independent member programs committed to ending sexual violence, domestic violence, and stalking, through direct services to victims, community education, and public policy advocacy.