LUNDSTEN, J.
¶ 1 The State alleges that A.M., now 32 years old, was sexually assaulted by Patrick Lynch when she was a young girl. After Lynch was charged, he brought a pretrial motion for an in camera review of A.M.'s mental health treatment records. The circuit court concluded that Lynch made the required showing for an in camera review. The court further concluded that, because A.M. refused to release her treatment records for an in camera review, State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct.App.1993), required the court to exclude A.M.'s testimony at Lynch's trial. The State appeals the court's non-final order excluding A.M.'s testimony.
¶ 2 In the early 1990s, when A.M. was a young child, she was repeatedly sexually assaulted by her father, who in 1993 was convicted based on A.M.'s allegations and other proof. Around the same time, or at some later date, A.M. alleged that Lynch repeatedly sexually assaulted her during the same time period that her father was sexually assaulting her. As the record stands now, in this pretrial posture there are factual disputes regarding, among other things, when A.M. first made allegations against Lynch and whether A.M. exhibits ongoing post-traumatic stress disorder (PTSD)-related symptoms that have impaired, and still do impair, her ability to accurately recall or describe pertinent events.
¶ 3 At Lynch's preliminary hearing, when A.M. was 29 years old, A.M. testified as follows. A.M. was about seven years old when her father began sexually abusing her at her father's home in 1990. About six months to a year after the abuse by her father started, Lynch also began sexually abusing A.M. at her father's home. A.M.'s father was home during the incidents involving Lynch, and A.M's father continued abusing A.M. during the same time period. Lynch had sexual contact with A.M. on six or seven separate occasions. The abuse by Lynch included penis-to-vagina intercourse, and there was at least one instance in which Lynch forced A.M. to perform oral sex on him. A.M. first reported the sexual abuse by her father in 1992.
¶ 4 During the preliminary examination, A.M. testified regarding when she first reported Lynch's behavior. A.M. asserted that she told the prosecutor in her father's case, one or more detectives, and a counselor that Lynch was also sexually assaulting her. According to A.M., the prosecutor and the police told her that they would first deal with A.M.'s father and then "come back to [Lynch] later." As we will see, as part of his offer of proof in support of his motion for an in camera review of A.M.'s treatment records, Lynch submitted evidence contradicting this testimony.
¶ 5 Lynch was charged in 2010, approximately 19 years after the alleged abuse occurred. Lynch filed his motion seeking an in camera review of A.M.'s treatment records dating back to 1993, and in particular her mental health treatment records relating to two psychological treatment providers. Lynch argued that there was a reasonable likelihood that A.M.'s treatment records contained probative, noncumulative evidence helpful to Lynch's defense. The circuit court agreed.
¶ 6 Following the circuit court's ruling, A.M. refused to authorize release of her treatment records for an in camera review. Faced with this refusal, the circuit court concluded that Shiffra required the court to exclude A.M.'s testimony at Lynch's trial. The court entered a written order to this effect, and that is the order the State has appealed.
¶ 7 The State raises two issues: whether Lynch made the required showing for an in camera review of A.M.'s treatment records, and, if Lynch did make such a showing, whether the only available remedy under Shiffra given A.M.'s refusal to disclose records is exclusion of her testimony at Lynch's trial. For the reasons we explain below, we agree with the circuit court on both issues.
¶ 8 The supreme court's decision in State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298, summarizes the standards that apply when a criminal defendant seeks an in camera review of a victim's mental health treatment records. In short, the defendant has the burden of making a fact-specific showing of a "reasonable likelihood" that the records will contain probative, noncumulative evidence necessary to the determination of the defendant's guilt or innocence:
¶ 9 Our standard of review is mixed. "Factual findings made by the court in its determination are reviewed under the clearly erroneous standard." Id., ¶ 20. However, the ultimate question of "[w]hether the defendant submitted a preliminary evidentiary showing sufficient for an in camera review implicates a defendant's constitutional right to a fair trial and raises a question of law that we review de novo." Id.
¶ 10 Here, the State does not argue that the circuit court erred when finding facts. Rather, we understand the State to be arguing that we should review de novo whether the factual assertions in Lynch's offer of proof, along with any other, undisputed facts, are sufficient as a matter of law to justify an in camera review under Green. Accordingly, we address the matter de novo.
¶ 11 As we describe in more detail below, Lynch submitted a detailed offer of proof in support of his motion for an in camera review of A.M.'s treatment records. Lynch offered factual assertions and documents to support his theory that A.M.'s treatment records contain probative, noncumulative evidence bearing on the reliability of A.M.'s allegations against Lynch for three reasons:
¶ 12 Lynch's offer of proof was based on (1) materials available from A.M.'s father's 1993 prosecution, (2) information generated during the government's criminal investigation of Lynch and obtained through discovery, (3) information generated during defense counsel's independent investigation, and (4) a defense expert's psychological report.
¶ 13 Based on this offer and the other, undisputed facts before it, the circuit court concluded that Lynch showed a reasonable likelihood that A.M.'s treatment records would contain probative, noncumulative evidence necessary to the determination of Lynch's guilt or innocence. See Green, 253 Wis.2d 356, ¶¶ 33-34, 646 N.W.2d 298. More specifically, the circuit court agreed with Lynch's first and second asserted reasons for an in camera review, namely, that there was a reasonable likelihood that A.M.'s records contain information highly damaging to A.M.'s credibility because there is a reasonable likelihood that the records will reveal
The circuit court declined to rely on Lynch's third reason.
¶ 14 As explained further below, we agree with the circuit court's approach. We first discuss the likelihood that A.M. exhibits ongoing PTSD-related symptoms that bear on the reliability of her allegations against Lynch, and we observe at the outset that this reason is the primary justification for an in camera review of A.M.'s treatment records. We see the second reason, delayed reporting, as closely related and bolstering the first reason. We need not decide whether either reason, standing alone, warrants an in camera review of A.M.'s treatment records. Below, we discuss each reason and then discuss separately the State's argument that any evidence gleaned from A.M.'s treatment records would be cumulative.
¶ 15 A number of assertions in Lynch's offer of proof, when considered together, support the conclusion that there is a reasonable likelihood that A.M. suffers from ongoing PTSD-related symptoms that have in the past impaired, and still do impair, her ability to recall and describe the alleged events involving Lynch. Those assertions include:
¶ 16 In addition, Lynch asserted in his offer of proof that it is recognized that those individuals who suffer from PTSD and report childhood sexual abuse are more likely than others to have false memories. And, at the hearing on Lynch's motion for an in camera review, Lynch supplemented his written offer of proof by reading expert testimony from A.M.'s father's trial. This included opinion evidence suggesting that individuals with severe PTSD are much more likely than others to have false memories or difficulty differentiating between "fact and fantasy." Additionally, Lynch points out in his appellate briefing, and the State does not dispute, that symptoms commonly associated with PTSD include "acting or feeling as if the traumatic event were recurring" and "a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes." Finally, the circuit court determined that medical journals and case law show that PTSD may impair a witness's ability to accurately recall and describe pertinent events.
¶ 17 As far as we can tell, the State does not dispute that any of the described symptoms are commonly associated with PTSD, or that such symptoms can seriously impair a person's ability to accurately
¶ 18 We agree that a person with a given psychological disorder does not necessarily experience all of the commonly associated symptoms of that disorder. We conclude, however, that the State's focus on A.M.'s "current" state is too narrow. We also conclude that Lynch has made a fact-specific showing that A.M.'s treatment records are reasonably likely to show that A.M. has exhibited particular ongoing symptoms associated with PTSD that have impaired, and do still impair, her ability to accurately recall or describe pertinent events.
¶ 19 As to the State's argument being too narrowly focused on A.M.'s current status, we observe that, even if A.M. does not currently suffer from PTSD symptoms, that would not mean that a past history of PTSD is not evidence reasonably likely to help Lynch's defense. When we consider A.M.'s claims about when she reported Lynch, along with Lynch's offer of proof and other, undisputed facts, there are a number of potential times when A.M. has alleged or reaffirmed allegations of sexual abuse by Lynch.
¶ 20 As to the rest of the State's argument, we think it misses the mark because it places a higher burden on Lynch than Green requires.
Green, 253 Wis.2d 356, ¶ 35, 646 N.W.2d 298; see also State v. Robertson, 2003 WI App 84, ¶ 21, 263 Wis.2d 349, 661 N.W.2d 105 ("Given the confidential nature of mental health records, it makes it very difficult in most cases for the defendant to predict what evidence will be found during a review of the records and thus how it may be material to the case.").
¶ 22 The State argues that State v. Behnke, 203 Wis.2d 43, 553 N.W.2d 265 (Ct.App.1996), supports its view that Lynch's showing in regard to the probative value of PTSD-related symptoms is insufficient. We disagree. We said in Behnke that a victim's history of cutting or bruising her own arm was not by itself sufficient to justify an in camera review of her treatment records to discover whether she may also have a tendency to injure herself in more severe ways, a tendency the defense thought might explain a black eye and chest bruising that the victim received in the course of an alleged sexual assault. See id. at 51, 54-55, 553 N.W.2d 265. Here, as we understand it, the State contends by analogy that Behnke supports the proposition that the limited information available about A.M's history of PTSD does not suggest that A.M.'s treatment records contain information showing that A.M. exhibits particular PTSD symptoms that affect A.M.'s credibility. We see this as a weak analogy at best, and are not persuaded by it. Given the limited facts in Behnke, it was plainly speculative to think that the victim's treatment records would contain information necessary to the defense. We demonstrate above in our discussion of ongoing PTSD-related symptoms, and will demonstrate below in our discussion of the delayed reporting issues in this case, why the same cannot be said here.
¶ 23 We agree with Lynch that a comparison to Robertson is more apt. In Robertson, the defendant made a fact-specific showing that a sexual assault victim was treated for a mental health condition (depression with psychotic features) that could affect her credibility and that might provide an alternative explanation for the victim's behavior that was otherwise consistent with an assault. See Robertson, 263 Wis.2d 349, ¶¶ 27-28, 661 N.W.2d 105. We distinguished Behnke, and concluded that the defense had made the required showing for an in camera review of the victim's treatment records. Robertson, 263 Wis.2d 349, ¶¶ 30-31, 661 N.W.2d 105.
¶ 24 Here, at least when viewed in combination with the delayed reporting information we consider next, we conclude that Lynch made a fact-specific showing that it is reasonably likely that A.M.'s treatment records will contain evidence that has a direct bearing on the critical question of her credibility.
¶ 25 We turn to Lynch's second reason for why there should be an in camera review of A.M.'s treatment records — the
¶ 26 First, the parties dispute whether the failure of a treatment provider, who is a mandatory reporter of child abuse and who has professional contact with a child, to report child abuse by a particular perpetrator makes it reasonably likely that the records of the provider will reflect that the child did not report abuse by that particular perpetrator to the provider. Applied here, the parties dispute whether the absence of reporting to authorities — of the possibility of sexual abuse committed by Lynch — by the mandatory-reporter providers who treated A.M. when she was a child makes it reasonably likely that those providers' treatment records will support a finding that, during contacts with those providers when A.M. was a child, she did not report that Lynch assaulted her.
¶ 27 Second, the parties dispute whether any delayed reporting evidence that might be found in A.M.'s treatment records is probative. That is, assuming A.M.'s treatment records support a finding that A.M., when she was a child, did not report Lynch to her treatment providers, the parties dispute whether such evidence is reasonably likely to be probative with respect to the truthfulness of A.M.'s allegations against Lynch.
¶ 28 We address each dispute separately below. Because we resolve both disputes in Lynch's favor, it follows that this part of Lynch's offer supports the circuit court's conclusion that Lynch has made a sufficient showing under Green for an in camera review.
¶ 29 As we have explained, the parties dispute whether the absence of reporting to authorities — of the possibility of sexual abuse committed by Lynch — by the mandatory-reporter providers who treated A.M. when she was a child makes it reasonably likely that those providers' treatment records will support a finding that, during contacts with those providers when A.M. was a child, she did not report that Lynch assaulted her. This dispute boils down to a more generally applicable question: Does the failure of a mandatory reporter, who has professional contact with a child, to report child abuse by a particular perpetrator make it reasonably likely that the provider's records will reflect that the child did not report abuse by that particular perpetrator? We conclude, as did the circuit court, that this question is, effectively, answered in State v. Speese, 191 Wis.2d 205, 528 N.W.2d 63 (Ct.App.1995) (Speese I), a decision the supreme court reversed on other grounds in State v. Speese, 199 Wis.2d 597, 545 N.W.2d 510 (1996) (Speese II).
¶ 30 We reasoned in Speese I that, when a child's treatment provider is required by law to report sexual abuse of the child, and that provider makes no report, this is sufficient reason to conclude for purposes of in camera review that the child did not disclose abuse to the provider. See Speese I, 191 Wis.2d at 223-24, 528 N.W.2d 63. As far as we can tell, there is no dispute here that A.M.'s treatment providers did not report Lynch to authorities. Thus, under the reasoning of Speese I, there is a reasonable likelihood that A.M. did not tell her treatment providers of sexual abuse by Lynch, at least not during the time that A.M. was a child and her treatment providers were, consequently, subject to mandatory reporting requirements.
¶ 31 Although we agree with the State that it is reasonable to assume that mandatory reporters do not always report when
¶ 32 The dispute arises here because the State argues that the supreme court's decision in Speese II overruled the pertinent mandatory-reporter reasoning in Speese I. The State points to the portion of Speese II in which the supreme court determined that any error in denying an in camera review was harmless because "evidence in the victim's medical and psychiatric records of her silence regarding the defendant's sexual abuse would have been redundant." See Speese II, 199 Wis.2d at 605, 545 N.W.2d 510. But this quotation simply shows that the Speese II court chose not to address our mandatory reporter analysis, not that the court disagreed with that analysis or chose to reverse on that topic. Rather, consistent with our reasoning in Speese I, the Speese II court assumed without deciding that the circuit court should have conducted an in camera review of the records before trial, and the Speese II court proceeded to address whether the failure to conduct the review was harmless. See Speese II, 199 Wis.2d at 598-600, 604-06, 614, 545 N.W.2d 510. The court concluded that any error was harmless because the delayed reporting information alleged to be in the victim's treatment records would have been cumulative to the other evidence adduced at trial. See id. at 600, 604-06, 545 N.W.2d 510.
¶ 33 Apart from its Speese II argument, the State contends that delayed reporting by victims should not be a reason for an in camera review of their treatment records. Whatever merit this argument has, it does not implicate the narrow conclusion we reach here — that the absence of reporting by A.M.'s treatment providers while A.M. was a child makes it reasonably likely that the providers' treatment records will support a finding that A.M. did not report Lynch to these providers. Rather, the State's contention that delayed reporting by victims, when it occurs, should not be a reason for an in camera review of the victims' treatment records goes to whether such evidence is probative, a topic we address next.
¶ 34 The State argues that delayed reporting by a sexual assault victim should not be a reason for an in camera review of the victim's treatment records. The State asserts that sexual assault victims, and particularly certain child sexual assault victims, commonly delay reporting. That assertion may be true in the general run of cases, but delayed reporting, by itself, is not the issue. Rather, the question is whether delayed reporting to treatment providers is probative in the case at hand. Here, as we have explained, the question is whether, under all of the circumstances Lynch presents, there is a reasonable likelihood that information about delayed reporting in A.M.'s treatment records will be independently probative on the question of A.M.'s credibility. And, as we now demonstrate, there is nothing typical or common about the alleged delayed reporting here.
¶ 35 The defense theory here is that although A.M., as a young child, reported that her father sexually abused her, she delayed reporting Lynch to her treatment
¶ 36 In summary as to delayed reporting, we conclude that the absence of reporting by mandatory reporters is sufficient to show a reasonable likelihood that there is evidence of delayed reporting in A.M.'s treatment records, and, under all of the circumstances here, a reasonable likelihood that evidence of delayed reporting in the treatment records will be probative. In further summary, we conclude that Lynch's showing as to delayed reporting, in combination with Lynch's PTSD showing, is sufficient under Green to warrant an in camera review of A.M.'s treatment records.
¶ 37 The State also argues that any relevant information in A.M.'s treatment records is cumulative. More specifically, the State argues that Lynch does not need A.M.'s records because he already has access to significant evidence of A.M.'s "reporting history." The State asserts that such evidence includes:
The State argues that, given all of this evidence, any delayed reporting information in the treatment records now in dispute is cumulative. We disagree, and conclude for two reasons that Lynch has shown a reasonable likelihood that the treatment records now at issue contain probative information that is not cumulative.
¶ 38 First, even though it appears that Lynch already has access to evidence showing that A.M. delayed for years in reporting Lynch, there is a reasonable likelihood that A.M.'s treatment records will contain particularly powerful evidence on this subject: evidence that A.M. did not report Lynch to mental health providers, in a confidential setting, who were counseling her for ongoing psychological trauma relating to childhood sexual abuse. As to the State's assertion that this evidence is
¶ 39 Second, the State's "cumulative" arguments do not undercut our primary reasoning relating to the reasonable likelihood that A.M.'s treatment records will contain evidence that A.M. exhibits ongoing PTSD-related symptoms that call the reliability of her allegations against Lynch into question. The State does not develop an argument explaining why information on that topic would be cumulative.
¶ 40 Accordingly, we agree with the circuit court that Lynch made the showing required to have the circuit court conduct an in camera review of A.M.'s treatment records. We turn now to the parties' dispute over the appropriate remedy in light of A.M.'s refusal to allow an in camera review of her records.
¶ 41 The State argues that, even if Lynch made a sufficient showing for an in camera review, the circuit court erred in concluding that the only available remedy for A.M.'s refusal to authorize release of her records for an in camera review is the exclusion of A.M.'s testimony at Lynch's trial. According to the State, an alternative remedy, pursuant to WIS. STAT. § 146.82(2), is to order release of the records, initially to the circuit court for an in camera review and, if necessary after that review, to the parties, without A.M.'s authorization.
¶ 42 If we were writing on a clean slate, we could address the merits of the State's remedy argument. There may be merit to the idea that, in some circumstances, other alternatives should be available to circuit courts. However, we agree with the circuit court that we are bound by plain language in Shiffra that forecloses alternative remedies.
¶ 43 Shiffra addressed whether a circuit court has a choice other than to exclude a victim's testimony at trial when a defendant has made the required showing for an in camera review of treatment records and the victim, nonetheless, refuses to authorize the release of those records. We wrote:
Shiffra, 175 Wis.2d at 612, 499 N.W.2d 719 (emphasis added). Shiffra's use of "In this situation" and "Under the circumstances,"
¶ 44 Our reading of this part of Shiffra is the same reading we gave it in Speese I:
Speese I, 191 Wis.2d at 224-25, 528 N.W.2d 63. And, as we have already indicated, the supreme court has not modified or overruled the pertinent part of Shiffra. See n. 3, supra. It follows that we are bound by Shiffra. See Cook v. Cook, 208 Wis.2d 166, 189-90, 560 N.W.2d 246 (1997) (only the supreme court may overrule, modify, or withdraw language from a published court of appeals opinion).
¶ 45 Accordingly, we uphold the circuit court's determination that, under Shiffra, A.M.'s testimony must be excluded from Lynch's trial if A.M. continues to refuse to allow the circuit court to conduct an in camera review of her treatment records.
¶ 46 In sum, for the reasons explained, we affirm the circuit court's order excluding any testimony by A.M. at Lynch's trial. If, on remand, A.M. modifies her position with respect to disclosure of her records, the topic should be revisited.
Order affirmed and cause remanded for further proceedings.