LITTLE ROCK -- A Searcy man convicted of sexually assaulting a 9-year-old girl lost in his effort to have a court overturn his conviction and allow him access to the victim's therapy records.
The Arkansas Supreme Court, in a 5-2 decision Thursday ruled that the victim's records sought by Tracy Vaughn's attorneys remained subject to therapist-patient privilege, despite those records being cited to obtain Vaughn's arrest in 2018.
An arrest affidavit from that year states that police first began investigating Vaughn nearly two years before, when three minor girls reported that they had been allowed to skinny dip at Vaughn's home.
One of the girls also alleged that Vaughn made them touch one another inappropriately while in his pool, according to the court record.
Vaughn initially denied acting inappropriately and was not arrested until 2018, when police said in an affidavit that one of the victims "recently disclosed during her therapy session" that Vaughn had molested her. He was convicted and sentenced to five years in prison in early 2019.
In a statement Thursday, Arkansas Attorney General Leslie Rutledge praised the ruling.
"The opinion reinforces that a victim's private therapy records are shielded from disclosure under Arkansas's psychotherapist-patient privilege," Rutledge said. "Victims should be allowed to freely share with their therapist without fear of later disclosures."
In appealing his conviction, Vaughn's attorneys argued that the victim was "browbeaten" into making accusations against Vaughn during her counseling sessions, and sought access to her therapy records to search for exculpatory information.
The Arkansas Court of Appeals agreed with Vaughn, ruling that the records should have been reviewed by the trial judge for any relevant information to the defense. However, the judges on the Court of Appeals also upheld Vaughn's conviction after looking at the records and determining that they did not contain exculpatory evidence.
The case was appealed to the Arkansas Supreme Court by Vaughn's attorney, Jeff Rosenzweig, who called Thursday's decision "disappointing."
Writing for the court's majority, Justice Shawn Womack said the victim did not waive her right to keep the records privileged by testifying that she attended therapy, nor did Vaughn have a constitutional right to confront the witness by gaining access to her therapy records, which prosecutors said they did not intend to present as evidence at trial.
"Vaughn contends he needed access to the records to show that [the victim] did not initially disclose the abuse and in fact denied it," Womack wrote. "He essentially seeks to bootstrap the trial right to confront witnesses into a pretrial discovery right. This claim does not place the right to confrontation at issue and thus we reject Vaughn's argument."
Womack was joined in the majority by Chief Justice Dan Kemp and Associate Justices Courtney Hudson, Karen Baker and Rhonda Wood.
The two dissenting justices, Josephine Hart and Robin Wynne, each penned separate dissents, stating that they would remand the case for an in camera review of the records and further proceedings.
In her dissent, Hart suggested that the case presented questions that are ripe for review by the U.S. Supreme Court.
"Where allegations against a defendant were developed in a purportedly privileged setting, does the defendant (and the jury) get to know how those allegations developed, or does the assertion of privilege defeat the defendant's right to support his defense?" Hart wrote.
Rosenzweig said he would likely take Hart's advice and appeal the ruling to the U.S. Supreme Court.
"Other cases don't take into account situations such as this, where the allegations were developed through actual counseling," Rosenzweig said.
Vaughn is being held in the White County jail on a waiting list to be transferred to the Arkansas Department of Corrections, according to prison records.