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SJC-13336

IN THE MATTER OF A MOTION TO COMPEL.

Worcester. May 3, 2023. - September 18, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Uniform Act to Secure Attendance of Witnesses from Without a 

State in Criminal Proceedings. Privileged Communication.

Practice, Criminal, Attendance of witnesses. Witness, 

Compelling giving of evidence, Privilege. Evidence, 

Privileged record. Statute, Construction. Public Policy.

Motion to compel attendance filed in the Superior Court 

Department on January 12, 2022.

The motion was heard by J. Gavin Reardon, Jr., J.; a motion 

for reconsideration was also heard by him; and the case was

reported by him to the Appeals Court.

The Supreme Judicial Court granted an application for 

direct appellate review.

Anthony J. Cichello (Allison Lennon also present) for the 

respondent.

Anthony Mirenda, Laura D. Gradel, & Adam Aguirre, for 

Victim Rights Law Center & others, amici curiae, submitted a 

brief.

Andrea C. Kramer, Jamie Ann Sabino, Nicole R.G. Paquin, 

Samantha Jandl, & Tara Thigpen, for Women's Bar Association of 

Massachusetts & another, amici curiae, submitted a brief.
2

GEORGES, J. This case concerns an order issued by a 

Superior Court judge compelling the production of sexual assault 

counselling records pursuant to a certificate issued by a 

magistrate of the Rhode Island Superior Court (Rhode Island 

court or Rhode Island magistrate) under the Uniform Law to 

Secure the Attendance of Witnesses from Without a State in 

Criminal Proceedings, G. L. c. 233, §§ 13A-13D (Uniform Act). 

The order is challenged by the record holder, the keeper of 

records at a rape crisis center (center). The essential 

question is whether the Massachusetts judge erred in declining 

to analyze the sexual assault counsellor's privilege, provided 

in G. L. c. 233, § 20J, when conducting his analysis under the 

Uniform Act.1 Relying on this court's decision in Matter of a 

1 In relevant part, the Uniform Act provides that when 

presented with a complying certificate from an out-of-State 

court, a Superior Court judge shall compel the designated 

witness to attend the out-of-State proceeding. See G. L. 

c. 233, § 13A. To comply with the Uniform Act, the certificate

must certify that the witness is material and that his or her 

presence is required. See id.; Matter of a R.I. Grand Jury 

Subpoena, 414 Mass. 104, 112 (1993). The Massachusetts judge 

then determines (a) whether "the witness is material and 

necessary," and (b) whether it will "cause undue hardship" to 

compel the witness to attend and testify. G. L. c. 233, § 13A. 

See Matter of a R.I. Grand Jury Subpoena, supra.

In the absence of a victim's "prior written consent," G. L. 

c. 233, § 20J, prevents a "sexual assault counsellor" from 

disclosing "information transmitted in confidence by and between 

a victim of sexual assault and a sexual assault counsellor," and 

further, it provides that such information "shall not be subject 
3

R.I. Grand Jury Subpoena, 414 Mass. 104, 109 (1993) (R.I. Grand 

Jury Subpoena), the Massachusetts judge concluded that the 

privilege claim must instead be raised in Rhode Island.

To best harmonize the Uniform Act with G. L. c. 233, § 20J, 

we deem it necessary for either the requesting State or 

Massachusetts to adjudicate a request for Massachusetts sexual 

assault counselling records in accordance with the Lampron-Dwyer

protocol.2 See Commonwealth v. Dwyer, 448 Mass. 122, 139-147

(2006); id. at 147-150 (Appendix); Commonwealth v. Lampron, 441 

Mass. 265, 269-270 (2004). The Superior Court judge reached 

this same conclusion in his initial order, and but for his 

reliance on the general rule articulated in R.I. Grand Jury 

Subpoena, 414 Mass. at 109, he would have correctly applied the 

Lampron-Dwyer protocol in ultimately deciding the issue. On his 

report of this issue of first impression, we clarify the 

applicable standard.

Specifically, we hold that this Commonwealth's strong and 

clear public policy in favor of protecting victims of sexual 

assault compels an exception to the otherwise applicable general 

to discovery and shall be inadmissible in any criminal or civil 

proceeding."

2 We note that certain amendments to the Uniform Act and 

G. L. c. 233, § 20J, took effect during the pendency of this 

case. See St. 2022, c. 127, § 36; St. 2022, c. 175, §§ 48A, 55. 

Those changes are not at issue here.
4

rule of R.I. Grand Jury Subpoena, 414 Mass. at 109, that under 

the Uniform Act, privilege claims should be litigated in the 

requesting jurisdiction. This exception is specific to records 

or testimony presumptively privileged by § 20J, and it applies 

only where an objecting party establishes a substantial 

likelihood that the protections of the § 20J privilege, as 

expressed in the Lampron-Dwyer protocol, will be abrogated in 

the requesting State. If such a substantial likelihood exists,

then a Massachusetts judge must ensure that records or testimony 

presumptively privileged by § 20J will receive the protections 

of the Lampron-Dwyer protocol before authorizing a subpoena 

under the Uniform Act. Applying this standard here, we vacate 

the order of the Superior Court judge.3,4

3 We are informed by the center in a postargument letter 

that the underlying Rhode Island criminal case was dismissed 

during the pendency of this appeal. The center concedes that 

this development could be grounds to deem this matter moot. 

Nevertheless, "[i]t is within the discretion of this court to 

review a case regardless of its mootness." Commonwealth v. 

McCulloch, 450 Mass. 483, 486 (2008). While it would appear 

that this matter is moot, we exercise that discretion to decide 

the issue presented by the judge's report because it is an issue 

of significant public importance about which there is some 

uncertainty. See id.; Brown v. Guerrier, 390 Mass. 631, 633 

(1983) ("The fact that a judge has reported the case is entitled 

to weight in deciding whether to exercise our discretion in 

favor of answering substantive questions").

4 We acknowledge the amicus brief submitted by the Victim 

Rights Law Center, Jane Doe, Inc., Boston Area Rape Crisis 

Center, Center for Hope and Healing Inc., New Hope, Inc., 

Pathways for Change, Inc., Elizabeth Freeman Center, Inc., 

Independence House, Inc., and National Women's Law Center, as 
5

Background. The petitioner5 was charged by the State of 

Rhode Island with child molestation.6 The center has represented

-- and the Superior Court judge assumed in reaching his 

decision -- that the alleged victim, a minor, was receiving 

counselling at the center, and that the alleged victim's 

counsellor there was a sexual assault counsellor. The center 

states that this counselling is ongoing.

A Rhode Island magistrate issued a certificate pursuant to 

the Uniform Act seeking to obtain from the center the alleged 

victim's medical records from a specific date to the present. 

The certificate described the magistrate's conclusions that the 

keeper of the records for the center was "a material witness" in 

the Rhode Island criminal case and that "the documents that []he 

will bring with h[im] are relevant to the trial . . . and 

necessary for the presentation of a defense." In particular, 

the Rhode Island magistrate concluded that "upon information and 

well as the amicus brief submitted by the Women's Bar 

Association of Massachusetts and the Massachusetts Law Reform 

Institute.

5 We refer to the party who sought the records as the 

petitioner, as that was the party's designation in the Superior 

Court.

6 Specifically, he was charged with one count of "first 

degree child molestation sexual assault" pursuant to R.I. Gen. 

Laws §§ 11-37-8.1 and 11-37-8.2, as well as three counts of 

"second degree child molestation sexual assault" pursuant to 

R.I. Gen. Laws §§ 11-37-8.3 and 11-37-8.4.
6

belief, said witness would give evidence and testimony relating 

to an alibi," and further, that "the witness can provide 

evidence and testimony that would be material and relevant to 

the defenses of, inter alia, the alibi generally as well as 

impeachment and exculpatory evidence."

One month later, the petitioner filed the certificate along 

with a motion to compel in the Superior Court. A hearing was 

then held at which the center appeared and opposed the motion to 

compel. After the hearing, the center filed a written

opposition and the petitioner filed a supplemental memorandum in 

support of his motion to compel. The Superior Court judge 

issued an order denying the motion to compel without prejudice. 

He noted the center's objections based on G. L. c. 233, § 20J,

and cited a lack of information as to whether Rhode Island would 

afford protections similar to those provided in Massachusetts. 

On that basis, he concluded that requiring the appearance of the 

record-keeper would be an undue hardship. The judge suggested

that his concerns would be satisfied by either a hearing

pursuant to the Lampron-Dwyer protocol in the Superior Court or 

a showing that the equivalent was held in Rhode Island.

One month later, a second magistrate of the Rhode Island 

court issued an order that the records at issue "shall be viewed 

in camera by the Judge/Magistrate before any documents are 

turned over to counsel." The petitioner presented this order to 
7

the Superior Court in a motion for reconsideration, urging that 

it answered the Superior Court judge's concerns. The center 

opposed the motion for reconsideration, and a hearing was held,

at which the center argued that the Lampron-Dwyer protocol had 

not been met, either in Rhode Island or before the Superior 

Court. The center emphasized, as it had in its prior 

opposition, that it received no notice of the Rhode Island 

proceedings. The Superior Court judge noted his concern about 

the lack of notice to the center and expressed reservations 

about whether the requirements of Lampron-Dwyer had been met.

Relying on this court's decision in R.I. Grand Jury 

Subpoena, 414 Mass. at 109, however, the Superior Court judge 

issued an order in which he concluded that the privilege issue 

must be litigated in the requesting State, Rhode Island. 

Consequently, he "limit[ed] [his] analysis to the considerations 

set forth under" the Uniform Act. Without analyzing the 

privilege for sexual assault counselling records under § 20J, 

the Superior Court judge concluded that the showings of 

materiality and necessity as required by the Uniform Act were 

established in the certificate and that compelling attendance 

did not give rise to undue hardship. See R.I. Grand Jury 

Subpoena, supra at 108 n.4. He allowed the motion to compel but 

stayed his order for fourteen days. The order subsequently was 

stayed further on the center's motion.
8

The Superior Court judge again further stayed his order and 

all proceedings, and he reported his order to the Appeals Court 

pursuant to G. L. c. 231, § 111, and Mass. R. Civ. P. 64 (a), as 

amended, 423 Mass. 1403 (1996), or, in the alternative, Mass. R. 

Crim. P. 34, as amended, 442 Mass. 1501 (2004). After the

appeal had been entered in the Appeals Court, this court granted 

the center's application for direct appellate review.7

Discussion. 1. Standard of review. Where a Superior 

Court judge reports an interlocutory order for determination by 

an appellate court, "the basic issue . . . is the correctness of 

his [or her] finding or order" (citation omitted). Graycor 

Constr. Co. v. Pacific Theatres Exhibition Corp., 490 Mass. 636, 

640 (2022). The crux of the instant dispute is a question of 

law, that is, whether and to what extent a Massachusetts court 

must consider G. L. c. 233, § 20J, in analyzing a request made 

under the Uniform Act for sexual assault counselling evidence

located in Massachusetts. We review de novo such questions. 

See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 453 (2021).

2. The Uniform Act. We begin with the overarching 

framework of the Uniform Act, which applies to requests for inperson testimony as well as document requests. See R.I. Grand 

Jury Subpoena, 414 Mass. at 112. In relevant part, the Uniform 

7 The petitioner did not file a brief or appear for oral 

argument before this court.
9

Act requires that when presented with a complying certificate

from an out-of-State court, a justice of the Superior Court in 

Massachusetts shall compel the designated witness to attend the 

out-of-State proceeding. See G. L. c. 233, § 13A. To comply 

with the Uniform Act, the certificate must, inter alia, certify 

that the witness is material and that his or her presence is 

required. See id.; R.I. Grand Jury Subpoena, supra. In 

Massachusetts, the Superior Court judge receiving such a

certificate is directed to hold a hearing to "determine[]"

(a) whether "the witness is material and necessary," and 

(b) whether it will "cause undue hardship" to compel the witness 

to testify. G. L. c. 233, § 13A. See R.I. Grand Jury Subpoena, 

supra.

3. G. L. c. 233, § 20J. Massachusetts State law 

privileges "information transmitted in confidence by and between 

a victim of sexual assault and a sexual assault counsellor."8 

G. L. c. 233, § 20J. It provides in relevant part that "[a] 

sexual assault counsellor shall not disclose such confidential 

communication, without the prior written consent of the victim," 

and further, that "[s]uch confidential communications shall not 

be subject to discovery and shall be inadmissible in any 

8 General Laws c. 233, § 20J, further defines the terms 

"victim" and "sexual assault counsellor." The center has 

represented that those definitions are met in this case, and the 

petitioner did not dispute that before the Superior Court.
10

criminal or civil proceeding without the prior written consent 

of the victim to whom the report, record, working paper or 

memorandum relates."9 Id.

a. Interpretation. The text of § 20J shows the 

Legislature's intention that the sexual assault counselling 

privilege have "the widest scope possible." Commonwealth v. 

Neumyer, 432 Mass. 23, 33 (2000). See Commonwealth v. Two 

Juveniles, 397 Mass. 261, 265-266 (1986). The "demonstrated

legislative concern for the inviolability of the privilege" 

corresponds to the importance of the public policy purposes that 

it serves. See Commonwealth v. Fuller, 423 Mass. 216, 225

(1996), overruled on other grounds by Dwyer, 448 Mass. at 139. 

We have explained this "policy of the Commonwealth" in the 

following terms: "Because victims of sexual crimes are likely 

to suffer a depth and range of emotional and psychological 

disturbance . . . not felt by the victims of most other crimes, 

the public interest lies in assisting victims of sexual crimes 

to recover from injuries" (quotation and citation omitted).

Commonwealth v. Stockhammer, 409 Mass. 867, 884 (1991). Cf. 

G. L. c. 233, § 21B (rape shield statute); St. 1977, c. 110, 

preamble (purpose of rape shield statute is "to protect . . . 

9 The center represented to the Superior Court judge that 

the alleged victim objected to the request at issue.
11

victims of rape and certain other related crimes"); Commonwealth

v. Harris, 443 Mass. 714, 723 (2005).

Section 20J advances this policy. It "reflects, among other 

considerations, the personal and intimate nature that records of 

sexual assault counselling will almost certainly possess." 

Fuller, 423 Mass. at 221. And it permits a sexual assault 

victim to have "confidence and trust in the counsellor who hears 

[his or her] disclosures." Id. at 222 n.4. Without this, a 

victim "may not feel able to make full disclosure" or "may forgo 

altogether the benefits of counselling." Id. at 221. By 

privileging these communications and related records, § 20J 

addresses these concerns, promoting aid to sexual assault 

victims and encouraging the reporting of sexual assault crimes, 

which otherwise might go unreported. See id. at 221-222 & n.4.

b. Lampron-Dwyer protocol. "With the existence and 

strength of the privilege established by the Legislature, the 

only issue left for judges" is whether a defendant's 

constitutional rights are implicated. Two Juveniles, 397 Mass. 

at 266. The Lampron-Dwyer protocol protects the constitutional 

rights of defendants while preserving the strength of statutory 

privileges. It "represent[s] a careful balancing[,] . . . 

establish[ing] not only that a statutory privilege sometimes 

must yield to a defendant's need for information to mount a 

defense and thus obtain a fair trial, but also that, in such 
12

circumstances, the intrusion must be made with great care and 

pursuant to exacting procedures." Matter of an Impounded Case, 

491 Mass. 109, 118 (2022).

Under the protocol, sexual assault counselling records are 

presumptively privileged. See Dwyer, 448 Mass. at 143 n.25, 

148. To obtain access to such records,

"[t]he party moving to [summons] documents . . . must 

establish good cause, satisfied by a showing '(1) that the 

documents are evidentiary and relevant; (2) that they are 

not otherwise procurable reasonably in advance of trial by 

exercise of due diligence; (3) that the party cannot 

properly prepare for trial without such production and 

inspection in advance of trial and that the failure to 

obtain such inspection may tend unreasonably to delay the 

trial; and (4) that the application is made in good faith 

and is not intended as a general "fishing expedition."'"

Id. at 140-141, quoting Lampron, 441 Mass. at 269. The party

must first move the court, "describing, as precisely as 

possible, the records sought," and detailing in an affidavit

"all facts relied upon in support of the motion." Dwyer, supra

at 147 (Appendix); Mass. R. Crim. P. 13 (a) (2), as appearing in 

442 Mass. 1516 (2004). We emphasize that notice to the record 

holder is an essential part of the Lampron-Dwyer protocol, and 

this notice must be provided in advance of the Lampron hearing, 

as the record holder is entitled to be heard before the issuance 

of any summons not only on the question of privilege but also on 

the question of relevance. See Dwyer, 448 Mass. at 145; id. at

148 (Appendix).
13

At the Lampron hearing, the judge "shall [then] hear from 

all parties, the record holder, and the third-party subject, if 

present." Id. at 148 (Appendix). After this hearing, the judge 

will make oral or written findings as to whether the moving 

party met its initial burden. See id. at 148 & n.3 (Appendix). 

Moreover, the judge will make oral or written findings as to 

whether the records at issue are presumptively privileged, i.e., 

"prepared in circumstances suggesting that some or all of the 

records sought are likely protected by a statutory privilege." 

See id. at 148 (Appendix).10

To the extent that the burden is met but "some or all of 

the requested records are presumptively privileged," id. at 149

(Appendix), the moving party will obtain access to those records 

subject to a number of procedural safeguards. Any summons 

issued pursuant to the Lampron-Dwyer protocol shall be limited 

to the relevant portions of the records at issue. See Lampron, 

441 Mass. at 269 n.6. And the presumptively privileged records 

summonsed shall be kept by the clerk under seal. Dwyer, 448 

Mass. at 146; id. at 149 (Appendix). Inspection is permitted 

only by "counsel of record" for the moving party, who shall sign 

a protective order "containing stringent nondisclosure 

10 It is understood that the judge will not have reviewed 

the records in camera before making those findings. See Dwyer, 

448 Mass. at 148 n.3 (Appendix).
14

provisions," the violation of which subjects the attorney to 

disciplinary action.11 Id. at 146. "Among other things, the 

protective order shall prohibit counsel from copying any record 

or disclosing or disseminating the contents of any record to any 

person, including the defendant." Id. Disclosure is "permitted 

if, and only if, a judge subsequently allows a motion for a 

specific, need-based written modification of the protective 

order." Id. The judge may modify the protective order only 

after a motion and hearing and must make oral or written 

findings that the copying or disclosure of presumptively 

privileged records is "necessary for the defendant to prepare 

adequately for trial." Id. at 150 (Appendix). Even so, the 

judge must "consider alternatives to full disclosure." Id. 

Where the records are disclosed pursuant to a court order 

following this procedure, any recipient of the information must 

sign a copy of the order, which "shall clearly state that a 

violation of its terms shall be punishable as criminal 

contempt." Id. Such records may be introduced at trial only 

after a motion in limine, which may be allowed after a finding 

that introduction is "necessary for the moving defendant to 

obtain a fair trial" and only after consideration of 

11 Counsel can later bring a motion to challenge any such 

privilege designation. See Dwyer, 448 Mass. at 149-150

(Appendix).
15

alternatives. Id. All copies of the records must be returned 

to the court upon resolution of the case. See id.

4. Application. In R.I. Grand Jury Subpoena, this court 

explained that under the Uniform Act, privilege issues are "a 

matter for the requesting jurisdiction to rule on and are not 

appropriately addressed to the [S]tate court issuing the 

subpoena." R.I. Grand Jury Subpoena, 414 Mass. at 109, quoting 

Tracy v. Superior Court, 168 Ariz. 23, 43 (1991). Today, we 

acknowledge the continuing validity of that general rule. 

Nevertheless, we hold that this Commonwealth's strong and clear 

public policy in favor of protecting victims of sexual assault 

compels an exception to this rule. This exception is specific 

to records or testimony presumptively privileged by G. L. 

c. 233, § 20J. To receive the protection of the exception, the 

burden is on an objecting party to establish a substantial 

likelihood that the protections of the § 20J privilege, as 

expressed in the Lampron-Dwyer protocol, will be abrogated in 

the requesting State. In determining whether this burden has 

been met, the Massachusetts judge may look to the law of the 

requesting State and may rely on representations in the 

certificate from the out-of-State court as to the means by which 

it will protect the information.

If the objecting party's burden is met, the Massachusetts 

judge must ensure that the records or testimony presumptively 
16

privileged by § 20J will receive the protections of the LampronDwyer protocol before authorizing a subpoena for such 

information under the Uniform Act. To accomplish this, a 

Massachusetts judge may implement the full Lampron-Dwyer

protocol, or relying on the applicable law and representations 

of the out-of-State court that certain parts of the LampronDwyer protocol will be fulfilled by the out-of-State 

proceedings, the judge may implement the parts of the protocol 

that will not otherwise be fulfilled. See R.I. Grand Jury 

Subpoena, 414 Mass. at 114. Because notice to the record holder 

is such an important part of the Lampron-Dwyer protocol, 

however, we caution against reliance upon facts or conclusions 

established without such notice.

In reaching this decision, we are persuaded by the analysis 

of the New York Court of Appeals in Holmes v. Winter, 22 N.Y.3d 

300, 316 (2013), cert. denied, 572 U.S. 1135 (2014). In that 

case, the court reaffirmed the principle that privilege issues 

should be litigated in the requesting State but nevertheless 

created an exception to that rule based on the strong and clear 

public policy of the State of New York, embodied in an absolute 

privilege protecting a journalist's confidential sources. See 

id. at 303, 313-320. The requesting State, Colorado, did not 

provide the same protection, and so in light of the public 

policy, the court found that a journalist was entitled to have 
17

the privilege issue litigated in New York. See id. at 305, 314-

316. The Court of Appeals stressed, as we stress today, the 

limited nature of the holding. See id. at 318, 319. The issue 

we decide is "whether a [Massachusetts] court should issue a 

subpoena compelling a [Massachusetts rape crisis center record 

keeper] to appear as a witness in another [S]tate to give 

testimony when such a result is inconsistent with the . . .

protection of [§ 20J]. Thus, the narrow exception we recognize 

today . . . is not tantamount to giving a [Massachusetts] law 

extraterritorial effect," and does not offend principles of 

comity. Id. See People v. Marcy, 91 Mich. App. 399, 405, 407 

(1979) (affirming denial of petition from out-of-State court 

seeking testimony within Michigan's statutory polygrapher 

privilege and attorney-client privilege).

The State of Rhode Island does not specifically privilege 

sexual assault counselling records. Cf. Advisory Opinion to the 

House of Representatives, 469 A.2d 1161, 1163, 1166 (R.I. 1983). 

Rhode Island law protects against the disclosure of health care 

records, but there are material differences between Rhode 

Island's protections and those afforded under the Lampron-Dwyer

protocol. See R.I. Gen. Laws § 5-37.3-6.1.

First, the Rhode Island statute provides for advance notice 

to the subject of the records and not to the record holder. See 

id. In Massachusetts, by contrast, "[a]s keeper of the records, 
18

and the entity to whom the [request is] addressed, [a rape 

crisis center] has the obligation to assert the privilege 

provided by § 20J on behalf of its clients." Fuller, 423 Mass. 

at 220 n.3. Here, the center represents that it received no 

notice of any proceedings in Rhode Island, and the language of 

R.I. Gen. Laws § 5-37.3-6.1 suggests that no such advance notice 

is required. The Superior Court judge initially expressed 

specific concern about this lack of notice to the center. As 

described above, advance notice to the record holder is a 

crucial part of the Lampron-Dwyer protocol. Therefore, to the 

extent that the center did not receive notice of the Rhode 

Island proceedings, we would caution against using facts 

determined therein to satisfy the Lampron-Dwyer protocol.

Second, in camera review is not by itself sufficient 

protection for information presumptively privileged under § 20J. 

Here, a magistrate of the Rhode Island court ordered in camera 

review by a judge or magistrate before any documents would be 

turned over to counsel. But disclosure even to a judge is 

nevertheless a disclosure and one that our protocol strictly 

limits. See Dwyer, 448 Mass. at 146; id. at 148-149 & n.3

(Appendix); Fuller, 423 Mass. at 225-226 ("disclosure, even in 

the limited form of an in camera inspection, should not become 

the general exception to the rule of confidentiality"); 

Commonwealth v. Bishop, 416 Mass. 169, 178 (1993), overruled on 
19

other grounds by Dwyer, 448 Mass. at 139. Therefore, the 

magistrate's order providing for in camera review was not 

sufficient in itself to cure any deficiency in the Lampron-Dwyer

protocol.

Third and most important, Rhode Island law does not require 

the stringent nondisclosure provisions of Lampron-Dwyer. If the 

Rhode Island court decided to release records subject to the 

privilege, Rhode Island law would not require the clerk to 

retain them under seal, would not require a protective order 

prohibiting the copying or disclosure of their contents as 

described above, and would not require that a violation be 

reported to a disciplinary authority. See Dwyer, 448 Mass. at 

146; id. at 149 (Appendix). Neither would Rhode Island law 

impose the same prerequisites for further copying or disclosure, 

including the requirement that such copying or disclosure be 

found "necessary" for the defendant to prepare for trial or else 

to preserve his right to a fair trial, and the requirement that

recipients of such further disclosures be subject to criminal 

contempt penalties for any violation of the relevant order. Id. 

at 146; id. at 150 (Appendix).

It does appear that a judge of the Rhode Island court has

discretion to impose such protections, but they are not required 

as in Massachusetts. Compare Dwyer, 448 Mass. at 139-150, with 

DePina v. State, 79 A.3d 1284, 1289-1290 (R.I. 2013) (describing 
20

balancing test required on third-party subject's motion to 

quash), and State v. Burnham, 58 A.3d 889, 892-893, 896-899 & 

n.10 (R.I. 2013) (noting discretionary disclosure to parties' 

attorneys of alleged victim's mental health records in child 

molestation case). See Holmes, 22 N.Y.3d at 315 (finding outof-State balancing test to provide insufficient protection).

In sum, we conclude that the protections afforded by the 

State of Rhode Island, while not insubstantial, do not ensure 

the stringent nondisclosure protections of this State's LampronDwyer protocol. Therefore, as there was a substantial 

likelihood that the privilege would be abrogated in this respect 

under Rhode Island law, a Superior Court judge needed to ensure 

compliance with the Lampron-Dwyer protocol before ordering the 

release of Massachusetts sexual assault counselling records to 

the Rhode Island court.12

Conclusion. For the foregoing reasons, we vacate the order 

allowing the motion to compel.

So ordered.

12 We note with appreciation the Rhode Island court's 

willingness, expressed in the certificate, "to enter an Order 

directing compliance with all reasonable terms and conditions 

prescribed by a Court of record in the Commonwealth of 

Massachusetts having jurisdiction over[] [the witness] regarding 

h[is] appearance."