                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0128
                             Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PATRICK EDOUARD,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Marion County, Paul R. Huscher,

Judge.



       Patrick Edouard appeals the trial court’s determination that the confidential

medical records he sought to discover contain no exculpatory evidence.

AFFIRMED.



       Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik and Sheryl A. Soich,

Assistant Attorneys General, for appellee.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

       Patrick Edouard, a minister, was convicted of four counts of sexual

exploitation by a counselor or therapist and one count of engaging in a pattern or

practice to engage in sexual exploitation by a counselor or therapist after

engaging in sex acts with four members of his congregation, including W.B. Our

supreme court, on further review, determined the district court erred in denying

Edouard’s request for in camera review of W.B.’s counseling records and

remanded the case to the trial court for the limited purpose of reviewing the

records to determine whether they contain exculpatory evidence entitling

Edouard to a new trial. State v. Edouard, 854 N.W.2d 421, 442-43 (Iowa 2014).

After conducting its review, the trial court determined the records contain no

exculpatory evidence. Edouard appeals.

       Without having access          to the     records,   Edouard     contends     they

“presumably” have exculpatory information. Specifically, he posits the records

will offer exculpatory evidence concerning whether W.B. was suffering from a

mental disorder or defect and whether he was treating her for that disorder or

defect.1 Although Edouard argues it is “likely” the records contain exculpatory




1
  The jury was instructed that in order to find Edouard guilty of sexual exploitation by a
counselor or therapist, the State had to prove:
               1) The defendant engaged in sexual conduct with [W.B.];
               2) The defendant did so with the specific intent to arouse or satisfy
       the sexual desires of either himself or [W.B.];
               3) The defendant was then a counselor or therapist; and
               4) [W.B.] [was] then receiving mental health services from the
       defendant, or had received mental health services from the defendant
       within one year prior to the conduct.
See Iowa Code § 709.15(2)(a)(3) (2011). Iowa Code section 709.15 defines a
“counselor or therapist” as “a physician, psychologist, nurse, professional counselor,
                                            3



evidence, he concedes that he “and his counsel still do not know” because his

counsel was unable to review the records.

       It is this lack of knowledge that forms the basis for Edouard’s appeal: he

argues his due process and confrontation rights have been impaired by the

record-review procedure utilized below. In support of his argument, he cites the

“challenges” posed by in camera inspection as discussed in Justice Appel’s


social worker, marriage or family therapist, alcohol or drug counselor, member of the
clergy, or any other person, whether or not licensed or registered by the state, who
provides or purports to provide mental health services.” Id. § 709.15(1)(a). It defines
“mental health services” as “the treatment, assessment or counseling of another person
for a cognitive, behavioral, emotional, mental, or social dysfunction, including an
intrapersonal or interpersonal dysfunction.” Id. § 709.15(1)(d).
         Edouard maintains W.B. was not suffering from a mental disorder or defect;
accordingly, he could not have treated her for a mental disorder or defect. In his view,
these are actual elements of the charges for which he was found guilty, but his
interpretation of section 709.15 is too narrow. The State is not required to prove the
person in receipt of the counseling or therapy has a mental dysfunction. Under the
definition provided in section 709.15(1)(d), “mental health services” include those
provided for assessment purposes, and a person may be assessed for a mental
dysfunction without having one. More importantly, limiting the scope of section 709.15
thusly would exclude from protection against sexual exploitation those receiving
treatment or counseling for cognitive, behavioral, emotional, or social dysfunction. We
recognize that our supreme court held in Edouard’s earlier appeal that the existence or
lack of a diagnosis may be relevant to whether a defendant provided “mental health
services.” Edouard, 854 N.W.2d at 442. However, a finding of guilt does not turn on
whether the person who has been sexually exploited meets the diagnostic criteria of the
Diagnostic and Statistical Manual of Mental Disorders (commonly referred to as DSM).
It is the subject matter of the counseling or therapy, as well as the relationship between
the counselor or therapist and the person receiving those services that controls whether
a sex act between the two constitutes sexual exploitation. It is the nature of this
relationship that makes one vulnerable to sexual exploitation. See, e.g., Eduardo Cruz,
When the Shepard Preys on the Flock: Clergy Sexual Exploitation and the Search for
Solutions, 19 Fla. St. U. L. Rev. 499, 501 (1991) (“Sexual relationships between clergy
and parishioners do not fall within the category of voluntary relationships between
consenting adults.”); Linda Jorgenson, Rebecca Randles & Larry Strasburger, The Furor
over Psychotherapist-Patient Sexual Contact: New Solutions to an Old Problem, 32 Wm.
& Mary L. Rev. 645, 651-64 (1991) (detailing the unique nature of the therapeutic
relationship and why sexual contact is problematic); Janice D. Villiers, Clergy
Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74
Denv. U. L. Rev. 1, 3 (1996) (proposing that sexual misconduct of clergy with a
counselee amounts to malpractice); Denise LeBoeuf, Note, Psychiatric Malpractice:
Exploitation of Women Patients, 11 Harv. Women’s L.J. 83, 85 (1988) (“The
psychotherapist/patient relationship diminishes the patient’s capacity to consent.”).
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special concurrence to State v. Neiderbach, 837 N.W.2d 180, 230-37 (Iowa

2013),2 and claims this process “cannot comport with due process or the

confrontation clauses of the United States or Iowa constitutions.” However, our

supreme court has held the procedure set forth in Iowa Code section 622.10(4)

(2013), which was followed by the trial court here, comports with the due process

and fair trial protections afforded by the United States and Iowa Constitutions.

State v. Thompson, 836 N.W.2d 470, 485-90 (Iowa 2013) (rejecting the

defendant’s constitutional challenge to the requirement that the in camera

inspection be performed by the court, not defense counsel).             While Edouard

maintains this procedure leaves him at a disadvantage in arguing the records

contain exculpatory evidence on appeal, “[w]e are not at liberty to overturn Iowa

Supreme Court precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct.

App. 1990). Should the supreme court wish to revisit its prior rulings on the

matter, it can take the issue up on further review.

       Accordingly, we affirm.

       AFFIRMED.




2
  Justice Appel emphasizes the need for the district court to enter “an appropriate order
that provides for meaningful appellate review” in order to ensure due process is afforded.
Neiderbach, 837 N.W.2d at 235 (Appel, J., concurring). He then describes steps that
may be taken to allow meaningful appellate review, suggesting “the district court should
outline the manner in which it reviewed the records, generally outline the factual and
legal issues presented in the motion to produce, and provide a sufficient explanation of
the court’s decision.” Id. Edouard does not argue the district court’s order fails to
provide sufficient detail for a meaningful appellate review.
