Diary of Rape Victim in Therapy Is Focus of Legal Dispute

On the night of Feb. 25, a 43-year-old Hemet woman was kidnaped from her home by a man who pulled a gun and forced her to drive to a remote desert location where she was raped before being released.

Overwhelmed by feelings of helplessness and fear, the woman, a divorced mother of two daughters who works as an office clerk, turned to a therapist trained to assist victims of sexual assault.

But the woman was so distraught that she had trouble even talking about the incident, and the therapist suggested that the victim express her thoughts and feelings in a diary that would be shared only by the two women.

Now, despite a county prosecutor’s protest that the diary is privileged communication between a patient and her therapist, a defense attorney has subpoenaed the personal journal as evidence potentially useful to the man accused of the rape, James Charles Stark.

Captured in Michigan

Stark, 41, was captured April 26, in Ann Arbor, Mich., shortly after his photograph was shown on a televised promotion for a segment of “America’s Most Wanted.” Stark faces a separate murder charge in connection with the kidnaping of a 19-year-old woman from Birmingham, Ala., who was shot in the back and head and then dumped in the Banning area on May 1, 1987.

Riverside County Municipal Judge Robert T. Peterson has scheduled a Nov. 18 hearing in Hemet Municipal Court on whether the subpoena should be quashed and the diary retained by the woman. If the subpoena is not quashed, the judge has indicated that he may want to examine the diary in chambers to decide whether certain entries should be admitted as evidence, thus making it available to Stark.

The woman could be held in contempt of court if she refuses to turn over the diary, said Riverside County Deputy Dist. Atty. Wayne Astin.

Astin, the woman’s therapist, Georgia Kline, and other rape victim advocates fear that the judge’s action could set a dangerous precedent for rape victims who use such diaries to aid in their recovery.

Question of Privilege

“The judge will weigh the effects of disclosure of the diary on the victim against its value to the defense,” Astin said. “My position is that anything that takes place between a psychotherapist and patient is privileged and that this document is confidential to their relationship.”

Kline, a state-licensed marriage, family and child therapist with a master’s degree in psychology, worried about the long-term repercussions to other rape victims.

“If such a journal were called into evidence in a court case, after she had been using that journal as a tool in her own recovery with the understanding that it was confidential, the result would be that even her recovery process would no longer be safe and such a person would feel despairing of ever getting over the aftermath of the crime,” Kline said.

Riverside County Deputy Public Defender Floyd Zagorsky, who is representing Stark and who subpoenaed the diary as potential evidence, declined to discuss the matter in detail.

“I’m not a person without feeling. . . . I understand the other side’s position,” Zagorsky said. “But the paramount interest I have is my client’s interest.”

Judge’s Obligation

Chief Assistant Public Defender Gary Myers argued that the judge has an obligation to decide “whether or not . . . privacy interests should prevail over the right of a criminal defendant to acquire any information necessary to the proper presentation of his case.”

Richard Leslie, legal counsel for the 12,000-member California Assn. of Marriage and Family Therapists, called the case “a classic conflict between psychotherapist-patient privilege and the right of a defendant to acquire any and all information that might lead to his exoneration.”

Leslie contends that all communications between Kline, who is a member of the association, and her patient are shielded by a state law that went into effect in 1987. The law protects “psychotherapist-patient” communications and applies to psychiatrists, psychologists, clinical social workers and marriage, family and child counselors, Leslie said.

“I wouldn’t have a tremendous problem with the judge looking to see if keeping the diary was part of the woman’s therapy,” Leslie said. “But if it is to see if there is information that could be used by the defense, that would be wrong. . . . A criminal defendant has no right to that information.”

‘Competing Interests’

Zagorsky responded: “There are obviously competing interests here. He (Leslie) has an interest to protect and we have an interest to protect.” Beyond that, Zagorsky has argued that a recent appellate court ruling undermines the state law.

According to Astin and police reports, the incident began at 8 p.m. on Feb. 25, when a stranger with thinning brown hair knocked on the woman’s door and asked for a ride to the nearest bus stop. The woman agreed to take him there.

“She probably viewed this as a Christian act,” Astin said. “It was a way to help someone in need.”

Once inside her car, the man drew a pistol and ordered the woman to drive toward the high desert community of Victorville. “At some point along the way, he raped her,” Astin said. “He got out of the car (later) in the community of Wasco and left on foot.”

The frightened woman drove back to the Riverside area, arriving at her daughter’s home at 8 p.m. the following night. The Riverside County Sheriff’s Department was notified.

Resident Spotted Photo

In April, a televised promotion for “America’s Most Wanted” included the photograph of a homicide suspect, which was recognized by a resident of Ann Arbor. On April 26, Ann Arbor police arrested Stark, a convicted rapist, at a car wash where he was employed under the name James Charles Cherry, Astin said.

Stark became a suspect in the Hemet woman’s kidnaping and rape when Banning police investigating the May, 1987, murder in their area found similarities between that case and the woman’s abduction, Astin said. As a result, Stark’s photograph was shown to the woman in a photo lineup, and she identified him as her assailant, Astin said.

The controversy over the diary erupted when Zagorsky subpoenaed all written material belonging to the victim that could have a bearing on the case, including a diary.

Zagorsky supported his request by referring to a 3rd District Court of Appeal ruling in Sacramento in 1986, which said a therapist in a separate case should have been ordered to turn over his notes to the trial court judge for review.

In that case, a defense attorney subpoenaed the notes of a therapist who had diagnosed a patient as suffering from hallucinations. The patient was a witness in a case involving a defendant charged with kidnaping, sodomy and rape. The trial judge ruled that the notes were privileged and could not be revealed.

Appellate Court Ruling

But the appellate court ruled later that the trial court should have reviewed the therapist’s notes in chambers to determine whether they contained information useful to the defendant, who was convicted of the charges.

Judge Peterson is expected to take that ruling into consideration before deciding whether to examine the woman’s diary.

“The application of this appellate court ruling to this situation means that anything a victim says to a therapist in an attempt to recover from the trauma of being a victim is subject to review in court,” Astin said. “That means it would be difficult for victims of crimes to receive the therapy they need.”

Aron Wolf, chairman of the American Psychiatric Assn. Committee on Confidentiality, agreed.

“I have never heard of anything like this before,” Wolf said. “I would have concerns because this is a licensed person in the therapeutic field and if they do not have protections, then the general public should know that if they go to someone licensed in this way they are taking a substantial risk.”