Wisconsin Supreme Court Rules That a Victim’s Health Records Are Nobody’s Business

In May, the Wisconsin Supreme Court overruled Wisconsin v. Shiffra, a case from 1993 which allowed a criminal defendant to obtain a limited review of their victim’s privately-held, otherwise privileged health records by way of in camera review by the court.

In overturning Shiffra, the Supreme Court held that it is “unsound in principle and unworkable in practice and has been undermined by developments in the law.”

The overturning of Shiffra came from the Wisconsin Supreme Court’s review of Wisconsin v. Alan S. Johnson. In this case, Alan S. Johnson was charged with several felonies in connection with a sexual assault charge against two of his children, a son and a daughter. Johnson sought in camera review of his son’s mental health and counseling records, based on the access granted under Shiffra.

Johnson’s son submitted a brief in opposition, and asked the court to revisit Shiffra, arguing that “it was wrongly decided, is unworkable, and its rationale has been undermined by subsequent developments in the law.” Johnson opposed, arguing that his son lacked standing to oppose the motion. The circuit court agreed with Johnson.

Upon review, the Wisconsin Court of Appeals reversed that decision, holding that Marsy’s Law, an amendment to the Wisconsin Constitution, did give crime victims standing to oppose those motions. Upon review, the Wisconsin Supreme Court overturned Shiffra, citing that decision as “unsound in principle, unworkable in practice, and detrimental to the coherence of the law”. Johnson’s motion for in camera review was overruled.