LRB-1617/1
MLJ&TJD:klm
2019 - 2020 LEGISLATURE
February 8, 2019 - Introduced by Representatives Spiros, Kuglitsch, Mursau,
Novak, Petryk and Tusler, cosponsored by Senators Petrowski, Wanggaard,
Feyen, Stroebel, Cowles, Olsen, Marklein and Jacque. Referred to
Committee on Judiciary.
AB11,1,2 1An Act to create 950.04 (1v) (df), 971.313 and 974.05 (1) (e) of the statutes;
2relating to: obtaining crime victim mental health treatment records.
Analysis by the Legislative Reference Bureau
This bill creates a procedure by which a defendant in a criminal case may seek
access to the mental health treatment records of a crime victim that are not in the
possession of or under the control of a government entity when he or she believes that
those records contain information that is crucial to the defendant's defense.
Under the bill, if a defendant wishes to gain access to the mental health
treatment records of a crime victim, he or she must file a motion describing the
information sought and show that there are mental health treatment records that
are reasonably likely to contain the information sought, that the information is
necessary to formulate an articulated theory of defense, and that the information is
not available from any other source. If the court finds that the defendant has made
this showing and that the potential benefit to the defendant is greater than the harm
to the crime victim from disclosure, and if the crime victim consents, the court may
conduct an in camera review of the mental health treatment records. Upon
reviewing the records, if the court determines both that the information in the
mental health treatment records is necessary to an articulated theory of defense and
that the benefit to the defendant from disclosure is greater than the harm to the
crime victim from disclosure, or determines that the evidence is otherwise
exculpatory, the court may order disclosure of the records. Following this order, the
crime victim may review the records that the court has determined should be
disclosed and may consent to disclose the records, may appeal the court's decision,
or may decline to disclose the records and be barred from testifying at the trial.

If the crime victim declines to disclose his or her mental health treatment
records for an in camera review, the court must abide by his or her declination and
must permit the victim to testify at trial. The defendant, however, may then
comment on the declination and question the victim about those records.
All filings and records pertinent to this process and the mental health
treatment records of the victim are to be sealed by the court. Additionally, all
decisions of the court during this process may be appealed at any time by the state
or the crime victim as a matter of right.
This bill also adds enumerated rights to the basic bill of rights for victims
describing the right of a victim to privacy in his or her mental health treatment
records, in accordance with the new procedure that the bill creates.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB11,1 1Section 1. 950.04 (1v) (df) of the statutes is created to read:
AB11,2,32 950.04 (1v) (df) To privacy in his or her confidential mental health treatment
3records, in accordance with the procedure under s. 971.313.
AB11,2 4Section 2. 971.313 of the statutes is created to read:
AB11,2,6 5971.313 Obtaining victim mental health treatment records. (1)
6Definitions. In this section:
AB11,2,97 (a) “Crime victim” has the meaning given for “victim” in s. 950.02 (4) or a
8guardian ad litem appointed under sub. (3) (c) 2. if a person identified under s. 950.02
9(4) (a) 2. has interests that are adverse to a child victim.
AB11,3,310 (b) “Mental health treatment records” means all records that are not in the
11possession of a government agency that are created in the course of providing
12services to individuals for mental illness, developmental disabilities, alcoholism,
13drug dependence, or other mental health issues and that are maintained by
14treatment facilities as defined in s. 51.01 (19), by psychologists licensed under s.
15455.04 (1), or by licensed mental health professionals as defined in s. 51.01 (11m).

1“Mental health treatment records” does not include psychotherapy notes, as defined
2in 45 CFR 164.501, that are maintained for personal use and kept separate from
3other mental health treatment records.
AB11,3,64 (c) “Necessary to an articulated theory of defense” means that the evidence is
5necessary to a determination of guilt or innocence by tending to create reasonable
6doubt that would not otherwise exist.
AB11,3,12 7(2) Motion for discovery of mental health treatment records. (a)
8Notwithstanding ss. 51.30 (4) (b) 4. and 146.82 (2) (a) 4., a defendant seeking
9discovery of a person's mental health treatment records shall file a confidential
10motion, sealed under s. 801.20, at least 60 days before trial, unless the court extends
11the time for filing upon a specific finding of good cause, including when there has
12been new discovery.
AB11,3,1513 (b) In a motion under par. (a), the defendant shall submit a fact-specific good
14faith offer of proof and a supporting affidavit from someone with personal knowledge
15that demonstrates all of the following:
AB11,3,1716 1. The specific information that is sought from the mental health treatment
17records.
AB11,3,1918 2. There are mental health treatment records that are reasonably likely to
19contain the information sought under subd. 1.
AB11,3,2120 3. The specific information sought under subd. 1. is necessary to an articulated
21theory of defense.
AB11,3,2322 4. The mental health treatment records are the only source for the information
23sought under subd. 1.
AB11,3,2524 5. The information sought under subd. 1. is not cumulative to evidence already
25available.
AB11,4,3
1(c) Each of the following offers of proof, considered alone, are not sufficient to
2determine whether the defendant has met the burden of proof to obtain a person's
3mental health treatment records under par. (b):
AB11,4,4 41. The crime victim reported or failed to report a victimization.
AB11,4,65 2. The crime victim sought or received counseling or mental health treatment
6for a prior or current victimization.
AB11,4,87 3. The crime victim received counseling or mental health treatment to address
8personal or family issues.
AB11,4,109 4. The crime victim may have made an inconsistent statement about the
10offense.
AB11,4,13 11(3) Notification required; crime victim rights. (a) The prosecuting attorney
12shall notify the crime victim whose mental health treatment records are being
13sought of all of the following:
AB11,4,1514 1. A motion has been filed under sub. (2) (a) requesting his or her mental health
15treatment records.
AB11,4,1716 2. He or she has the right to the assistance of counsel regarding the issue of
17access to his or her mental health treatment records.
AB11,4,1918 3. He or she may consent or decline to consent to an in camera review of his or
19her mental health treatment records.
AB11,4,2320 4. By consenting to an in camera review, he or she has not waived any privilege
21under s. 905.11 or 905.12 to object to redisclosure of the privileged information or the
22use of any privileged information in a subsequent court proceeding after the court's
23review and determination under sub. (4).
AB11,5,3
1(b) The prosecuting attorney may respond to the motion made under sub. (2)
2(a) with affidavits or written arguments, which shall be filed confidentially and
3sealed under s. 801.20.
AB11,5,114 (c) 1. The crime victim whose mental health treatment records are being sought
5has the right to counsel. The crime victim may retain counsel who may intervene in
6this proceeding on his or her behalf. The court shall provide the crime victim
7reasonable time to secure counsel. The court may appoint counsel upon the victim's
8request regarding access to and disclosure of the privileged mental health treatment
9records. The counsel may file a response to the filing made under sub. (2) (a) with
10affidavits or written arguments, which shall be filed confidentially and sealed under
11s. 801.20.
AB11,5,1712 2. If the victim of the crime is a child, and the court determines that a person
13identified under s. 950.02 (4) (a) 2. has interests that are adverse to the child, the
14court shall appoint a guardian ad litem. The guardian ad litem shall be an advocate
15for the best interests of the child regarding access to and disclosure of the privileged
16mental health treatment records. The guardian ad litem shall function
17independently in the same manner as the counsel identified under subd. 1.
AB11,5,23 18(4) In camera review; determination of whether disclosure is warranted. (a)
19If the court concludes both that the defendant has made the showing required by sub.
20(2) (b) and that the potential benefit to the defendant from disclosure outweighs the
21harm to the crime victim from disclosure, the court shall inquire as to whether the
22crime victim consents to an in camera review of the mental health treatment records
23by the court.
AB11,6,3
1(b) 1. If the crime victim does not consent to an in camera review of his or her
2mental health treatment records by the court, the court shall follow the procedures
3in sub. (6) (a).
AB11,6,74 2. If the crime victim consents to an in camera review of his or her mental health
5treatment records by the court, the court shall examine the mental health treatment
6records in camera for the presence of any evidence that is necessary to an articulated
7theory of defense.
AB11,6,108 (c) Following an in camera review of the mental health treatment records under
9par. (b) 2., the court may order the disclosure of the relevant records only if the court
10determines one of the following:
AB11,6,1311 1. The information in the mental health treatment records is necessary to an
12articulated theory of defense and the benefit to the defendant from disclosure
13outweighs the harm to the crime victim from disclosure.
AB11,6,1614 2. The information in the mental health treatment records is exculpatory
15because it is necessary to a determination of guilt or innocence by tending to create
16reasonable doubt that would not otherwise exist.
AB11,7,217 (d) If the court determines under par. (c) that some or all of the mental health
18treatment records are eligible for disclosure, the crime victim shall have the
19opportunity to review the records identified for disclosure. Within 45 days from the
20date of the order under par. (c), the crime victim and the state shall notify the court
21whether the crime victim or the state intends to appeal the order pursuant to s.
22974.05, and if neither the crime victim nor the state intends to appeal the order, the
23crime victim shall indicate whether he or she consents or declines to consent to the
24disclosure of the relevant records. If the crime victim or the state appeals the order

1under par. (c) within 45 days, the crime victim's mental health treatment records
2may not be disclosed until the appeal has concluded.
AB11,7,53 (e) 1. After the appeal under par. (d) has concluded, the crime victim shall
4indicate whether he or she consents to the disclosure of his or her mental health
5treatment records.
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