Victory for Survivors:

New Hampshire Supreme Court Affirms Crime Victims’ Rights to Privacy

By: Meg Garvin

In a landmark ruling issued on May 1, 2025, the New Hampshire Supreme Court decisively upheld the right to privacy for crime victims, holding that a survivor’s privileged records held by a domestic violence and sexual assault crisis center are protected from government intrusion under the state’s privilege laws and it’s newly adopted state constitutional right to privacy.

This case marked the first time the Court interpreted Article 2-b of the New Hampshire Constitution, which was added by voter referendum in 2018 to enshrine the right of individuals to “live free from governmental intrusion in private or personal information.” The decision affirms that this right extends to survivors and their records, and that courts must give weight to victims’ constitutional privacy rights during criminal cases.

Background 

The case began when a criminal defendant subpoenaed privileged records from a domestic and sexual violence crisis center, seeking access to a survivor’s confidential communications. The trial court granted the request for in camera review of the records under the state’s existing standard established in 1992 in State v. Gagne.

The victim and the crisis center moved to quash the subpoena, arguing that compelling disclosure, even for judicial review (i.e., in camera review), violated the victim’s constitutional privacy rights.  When first the trial court and then the intermediate appellate court declined to uphold the victim’s rights, review was sought in the New Hampshire Supreme Court.

What Was at Stake

The New Hampshire Supreme Court was tasked with addressing this question: Can a criminal defendant compel pretrial access to a sexual assault victim’s confidential, privileged records held by a crisis center?

For survivors, this isn’t a theoretical question.  Every day survivors seek services, including mental health treatment.  They often seek these services from community centers who, day in and day out, provide life-saving services to victims of sexual and domestic violence. By law these services are privileged and confidential because our communities have recognized that without these protections survivors are less likely to seek help or participate in criminal justice.  So at the core of this case was really the safety, healing, and dignity of crime victims.

A coalition of national and state advocacy organizations submitted an amici curiae brief urging the New Hampshire Supreme Court to uphold the victim’s constitutional right to privacy. The brief, filed by the National Crime Victim Law Institute, New Hampshire Coalition Against Domestic and Sexual Violence, Danu Center’s Confidentiality Institute, National Network to End Domestic Violence, and National Alliance to End Sexual Violence, argued that privileged records held by crisis centers are protected under Article 2-b of the New Hampshire Constitution. The brief emphasized that allowing access to such records without a heightened legal standard would undermine victim trust, discourage help-seeking, and conflict with the intent of the constitutional amendment voters adopted in 2018.

A New, Higher Standard

On May 1st, the New Hampshire Supreme Court concluded that Article 2-b abrogates the application Gagne to records held by private organizations. In its opinion, the Court established a legal framework that meaningfully recognizes victims’ rights. Going forward:

• A defendant must first make a prima facie showing that their constitutional due process rights are at stake pretrial.

• Only if such a showing is made may the court weigh the competing rights, applying strict scrutiny to determine whether a compelling governmental interest justifies infringing on the survivor’s constitutional right to privacy.

The Court also made clear that individuals whose records are sought must be given notice and an opportunity to object before any court ruling on disclosure. This approach ensures that survivors’ rights are not automatically subordinated to defense discovery requests and aligns with long-standing constitutional principles that protect individuals from unnecessary government intrusion.

This decision affirms what survivors, advocates, and practitioners have long known: privacy is not a luxury. It is a fundamental right.

This is more than a legal victory. It is a reaffirmation of dignity, safety, and the power of constitutional protections when courts apply them with clarity and courage.

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