"And the wisdom to know the difference": confidentiality vs. privilege in the self-help setting.

• Author: Weiner, Jessica G.

INTRODUCTION

On New Year's Eve of 1988, Paul Cox drank beer and kamikazes at a bar called Garry's Barleycorn in New Rochelle, New York. On the way home he was involved in a car accident and walked 21/2 miles to the house where he used to live with his parents. He broke in, got a knife from the kitchen, went up to the bedroom where his mother and father once slept, and murdered Shanta and Lakshman Rao Chervu. Cox stole nothing--he just slashed the throats of the two innocent victims. Cox then went to his parents' house in Larchmont, New York, and went to sleep. When he woke up, he remembered nothing from the night before. The police found fingerprints at the scene, but since Cox had never before been arrested, there was nothing to match.

Four years later, Cox joined Alcoholics Anonymous ("A.A."). "It is part of the 12 steps of the AA [process] to search for somebody and start telling him your past, to admit guilt."(1) At the time, Cox was rooming with a young man and woman, both A.A. members. He told them and other A.A. members that he dreamed he had committed a crime. Later, he said that "he believed he had done it, but he had no real recollection of the night. He remembered finding a bloody knife and throwing it in the water."(2) One member of A.A. went to the police via an intermediary. That member gave the names of other A.A. members who had been privy to the information and informed the police that Cox had been having dreams or dream fragments of killing the Chervus.(3)

Cox was charged with double homicide in 1993. In June 1994, seven A.A. members were compelled by subpoena to testify. Judge Cowhey, the presiding judge, refused to allow the A.A. members to claim a privilege as an extension of either the priest-penitent or the spousal privileges.(4) Instead, he held that New York law does not extend a testimonial privilege to self-help groups. Although the A.A. members maintained that they were bound by A.A. principles(5) to protect Cox's confidences, all seven were ordered to testify. They were not required to disclose their full names, and no press pictures of the seven witnesses were allowed.(6)

The trial resulted in a deadlock.(7) All but one woman, who held out for a lesser manslaughter charge, voted to convict for second-degree murder.(8) On December 6, 1994, after the second trial, Cox was convicted of manslaughter. The jury found that Cox "had been affected by extreme emotional disturbance."(9) The defendant admitted to the killings but claimed he had done so in an alcoholic blackout. Judge Cowhey gave Cox the maximum sentence on March 14, 1995.(10)

Numerous self-help groups have expressed outrage at the ruling.(11) A.A. has not taken an official stand on the decision because of its desire to remain focused solely on the problem of alcoholism without taking political stances on any outside issues;(12) however, various members of A.A. have talked to the press. One member stated that A.A. was not "above the law,"(13) and another stated that part of the A.A. process is taking responsibility for one's actions.(14) At least one member felt otherwise:

The first time my wife made me go to the meeting in our neighborhood

in Brooklyn, I go [sic] to the corner bar and stand pat all

night.... But [eventually,] I went back. The place gave me my life

back. I must have sent a thousand people there. If one of them

ever heard that anything they say gets repeated, and don't give

them any reasons, then they'd never come back. The same for

me.(15)

Another member, who is a priest, explained:

The confidentiality at AA is almost the same as the confessional

[I]f you don't have [confidentiality] at an AA meeting, then

we are all threatened. As I understand it, they subpoenaed people

for a double homicide. That's rare. But once you make Alcoholics

Anonymous people talk about one thing, what is to stop the

authorities from deciding that they can come around for anything,

an income tax case. Therefore, is a double murder more important

than the confidentiality of AA? There had to be a better way

to solve this case.(16)

One member, who felt that A.A.'s promise of confidentiality is not inviolable, admitted that he had "heard numerous confessions to crimes from petty theft to burglary to drunken driving," and admitted that it is "a matter of individual conscience what you ought to do when you hear such things."(17) Finally, one member of Cocaine Anonymous, irate about the fact that privileges are extended to psychotherapists but not to peer counselors, exclaimed, "This just points out another middle-class hypocrisy--money buys privacy.... If you have the money, you can have the protection. A lot of people in [Cocaine Anonymous] can't afford a fancy shrink."(18)

Interestingly, the name of the A.A. member who told on Cox was not revealed to the press. That person breached not only Cox's anonymity but also the anonymity of the other persons who were later forced to testify.(19) Although the full names of the A.A. witnesses were withheld from the people attending the trial, their identities were readily apparent to the judge and to the jurors at both trials.(20)

The reaction to the trial indicates the general expectation that people will not breach the confidence that exists within the self-help group. Although no explicit contractual obligation exists between members of A.A. or other self-help groups,(21) there is an assumption that some kind of legal protection exists for members of A.A. One woman, when asked if she thought a court could gain access to information disclosed at an A.A. meeting answered quite certainly, "Oh no, it all stays here.... They can't make me testify about what someone shared at a meeting."(22) But, in fact, unless she is willing to go to jail to defend that position, she can be compelled to testify.

The decision to turn to self-help groups for assistance is becoming more and more common. People are turning to self-help or mutual aid groups(23) as a means of dealing with various problems ranging from dealing with drug and alcohol addiction(24) to contending with life after divorce or the death of a loved one.(25) As part of the "treatment" provided by these mutual aid groups, members of the group share details of their lives and experiences in dealing with a particular problem. Most of the self-help groups serve as a private place where people divulge their innermost thoughts and secrets, secure in the knowledge that what they reveal within the group is not disclosed outside of the group, even to a court of law.(26) That sense of security is misplaced. Under the current law, only certain communications are protected from discovery sought during litigation(27) and communications made in the mutual aid context do not qualify.(28)

The evidentiary rules of privilege, unlike most rules of evidence, "operate to exclude relevant, nonprejudicial and nonconfusing evidence."(29) The system of privileges does not operate to aid in the quest for truth but rather to create and protect a realm of privacy thought necessary to protect and allow for the adequate functioning of certain relationships.(30) The successful functioning of those relationships within our society is deemed more important than the availability of evidence for the administration of justice.(31)

This Comment advocates extending a legal privilege to those highly focused self-help groups that require anonymity and confidentiality in order to provide effective treatment for their members. Part I of this Comment discusses self-help groups generally, compares them to other forms of therapy or counseling, and addresses the importance of confidentiality within the self-help setting. Self-help groups are vital to certain segments of the population. Their success rates are unsurpassed for certain types of treatment, and they make the experiential model of therapy available to those who might not benefit from more traditional methods of treatment.(32) Part II discusses the different rationales underlying privilege rules, and explains the current state of privilege law. Part III of this Comment demonstrates the application to the self-help context of the various theories used to explain modern privilege law. Part IV addresses the counterarguments made by critics of the expansion of privilege law, explains why they are inapplicable or misguided in the self-help setting, and describes, in light of the counterarguments, the nature of the privilege suggested. This Comment concludes with a plea to the courts and the legislatures to create such a privilege so that members of these support groups can continue to utilize self-help groups with the assurance that their statements will be protected.

1. THE SELF-HELP GROUP

   1. Defining Self-help Groups: A Therapeutic Necessity

      Although no one can give an exact number, there are at least 500,000 self-help groups operating in the United States with at least 10 million members.(33) Self-help groups provide an alternative to other types of therapy. As defined by Alfred Katz and Eugene Bender,(34)

      [s]elf-help groups are voluntary, small group structures for mutual

      aid and the accomplishment of a special purpose. They are usually

      formed by peers who have come together for mutual assistance in

      satisfying a common need, overcoming a common handicap or life-disrupting

      problem, and bringing about desired social and/or

      personal change. The initiators and members of such groups

      perceive that their needs are not, or cannot be, met by or through

      existing social institutions. Self-help groups emphasize face-to-face

      social interactions and the assumption of personal responsibility

      by members. They often provide material assistance, as well as

      emotional support; they are frequently "cause" oriented, and

      promulgate an ideology or values through which members may

      attain an enhanced sense of personal identity.(35)

      People choose to attend self-help group meetings instead of seeking professional assistance for numerous reasons...