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Confidentiality Laws

Last Updated: 2016-02-05
State What relationships qualify for privileged communications? Who holds the privilege and has the right to waive it? Are there any exceptions to the privilege? Statutory citation(s):
Alabama^
  • A victim, victim counselor without the consent of victim, or a minor or incapacitated victim without the consent of a custodial guardian or a guardian ad litem appointed upon application of either party, cannot be compelled to give testimony or to produce records concerning confidential communications for any purpose in any criminal proceeding.  Ala. Code § 15-23-42(a)
  • In both civil and criminal proceedings, a victim counselor or victim cannot be compelled to provide testimony that would identify the name, address, location, or telephone number of a safe house, abuse shelter or other facility providing temporary emergency shelter to the victim of the offense or transaction that is the subject of the proceeding (unless the facility is a party to the proceeding).   Ala. Code § 15-23-42(b)
  • Privilege terminates upon the death of the victim.   Ala. Code § 15-23-42(c)
  • Counselor does not need to be licensed for privilege to apply. R.D. v. State, 706 So.2d 770, 785 (Ala. Crim. App. 1997).

Holder of Privilege

  • Only the victim may waive the privilege.   Ala. Code §§ 15-23-42, and 15-23-43

Waiver of Privilege:

  • A victim does not waive the privilege by testifying in court about the crime. Ala. Code § 15-23-43(a)
  • However, if a victim partially discloses the contents of a privileged communication while testifying, either party may request the court to rule that the privilege afforded by this statute be waived to the extent that the privilege applies to that portion of the communication. Ala. Code § 15-23-43(a)(1)
  • Any waiver shall apply only to the extent necessary to require any witness to respond to counsel's questions concerning the confidential communication that are relevant to the facts and circumstances of the case. Ala. Code § 15-23-43(a)(2)
  • Jordan v. State, 607 So. 2d 333, 337 (Ala. Crim. App. 1992)
    • The victim counselor privilege is only waived if a victim objectively manifested the intent to waive it.
  • Limited to criminal proceedings.   Ala. Code § 15-23-42(a)
  • Mandatory reporting of suspected child abuse or neglect.   Ala. Code § 15-23-45
  • Victim is about to commit a crime.   Ala. Code § 15-23-45
  • Victim brings suit against a victim counselor or the organization for which the victim counselor works or volunteers, and the suit alleges malpractice during the counseling relationship.   Ala. Code § 15-23-43(b)

Ala. Code §§ 15-23-40 to -46 “Victim Counselor Confidentiality Act of 1987”

Alaska^
  • A victim or victim counselor cannot be compelled, without appropriate consent, to testify or produce records concerning confidential communications for any purpose in any criminal, civil, legislative, or administrative proceeding. Alaska Stat. § 18.66.200(a)
  • A victim or victim counselor cannot be compelled to give testimony that would identify the name, address, location, or telephone number of a safe house or shelter or other facility that provided temporary emergency housing to the victim of the offense unless the court or hearing officer determines that the information is necessary and relevant to the case. Alaska Stat. § 18.66.200(c)
  • A victim or victim counselor cannot be compelled to give testimony that would identify the name, address, or telephone number of a victim counselor unless the court or hearing officer determines that the information is necessary and relevant to the case. Alaska Stat. § 18.66.200(c)

Holder of Privilege:

  • Victim. Alaska Stat. § 18.66.220(a)
  • Victim counselor may only waive the privilege with consent of the victim or parent, legal guardian, or guardian ad litem of the victim. Alaska Stat. § 18.66.220(b)

Waiver of Privilege:

  • A victim does not waive the privilege by testifying in court about the crime.  Alaska Stat. § 18.66.220(a)
  • However, if a victim partially discloses the contents of a confidential communication in the course of testifying, either party may request the court to rule that the privilege be waived to the extent that the privilege applies to that portion of the communication. Alaska Stat. § 18.66.220(a)
  • A waiver applies only to the extent necessary to require a witness to respond to counsel’s questions regarding confidential communications that were disclosed only to the extent relevant to the case. Alaska Stat. § 18.66.220(a)
  • A minor may waive the privilege and testify or give consent for a victim counselor to testify, if the court determines that the minor is capable of knowingly waiving the privilege. Alaska Stat. § 18.66.200(d)(1)
  • Privilege can be waived by the victim's parent, legal guardian, or guardian ad litem when the victim is a minor or imcompetent to testify. Alaska Stat. §18.66.200(a)(2)
  • A parent or legal guardian may not waive the privilege for a minor victim if:
    • The parent or legal guardian has been charged with a crime against the minor;
    • A protective order or restraining order has been entered against the parent or legal guardian on behalf of the minor; or
    • The interests of the parent or legal guardian are otherwise adverse to those of the minor with respect to the waiver of privilege. Alaska Stat. § 18.66.200(d)(2)

Alaska Stat. § 18.66.210(1)-(8)

  • Mandatory reporting of child abuse or neglect.    
  • Evidence victim is about to commit a crime.    
  • Proceeding occurs after victim’s death.    
  • Communication is relevant to an issue of breach by the victim or counselor of a duty arising out of the victim-victim counselor relationship.    
  • Communication is admissible under the excited utterance hearsay exception in the Alaska Rules of Evidence.
  • Services of the victim counselor were sought in order to enable anyone to commit a crime or escape detection or apprehension after the commission of the crime.
  • Proceeding concerns whether to place a child into the custody of the state.
  • Victim is charged with a crime against a minor.
  • Victim is charged with a crime and the physical, mental, or emotional condition of the victim is raised as a defense.

Alaska Stat. §§ 18.66.200 to .250

Arizona^
  • A crime victim advocate must not disclose any communication between himself and the victim, including any communication made to or in the presence of others.  Ariz. Rev. Stat. § 13-4430(A)
  • A crime victim advocate may not disclose records, notes, documents, correspondence, reports, or memoranda that contain opinions or information, made while counseling or assisting the victim, or based on the communication by or with the victim, including communications made to or in the presence of others. Ariz. Rev. Stat. § 13-4430(B)

Holder of Privilege:

  • Only victim may waive the privilege. But note that “victim” includes minors, or if the victim is killed or incapacitated, the person’s spouse, parent, child, grandparent, sibling or any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, unless that person is in custody for an offense or is the accused. Ariz. Rev. Stat. § 13-4430(A)

Waiver of Privilege:

  • Victim must waive the privilege in writing. Ariz. Rev. Stat. § 13-4430(A)
  • If the crime victim advocate, with written or verbal consent from the victim, discloses to the prosecutor any privileged communication between the crime victim advocate and the victim, including any records or notes, the prosecutor must disclose the material to the defense only if such information is otherwise exculpatory. Ariz. Rev. Stat. § 13-4430(E)
  • If a crime victim consents either verbally or in writing, a crime victim advocate may disclose information to other professionals and administrative support persons that the advocate works with for the purpose of assisting the advocate in providing services to the victim and to the court in furtherance of any victim's right pursuant to this chapter. Ariz. Rev. Stat. § 13-4430(F)
  • Victim did not waive privilege preventing disclosure of conversation with advocate, even though victim testified about the conversation, where victim did not provide any written consent to disclosure by advocate. State v. Forde 233 Ariz. 543, 315 P.3d 1200 (2014)

Ariz. Rev. Stat. § 13-4430(C)

  • Crime victim advocate knows that victim will give or has given perjured testimony.
  • Privileged records contain exculpatory evidence.  

Ariz. Rev. Stat. §§ 13-4401 and 13-4430

Arkansas^

No statutory privilege for communications between a rape crisis counselor and a sexual assault victim.

N/A

N/A

N/A

California^
  • A victim of a sexual assault has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault counselor, as long as the privilege is claimed by either (i) the holder of the privilege, (ii) a person who is authorized to claim the privilege by the holder of the privilege, or (iii) the sexual assault counselor to whom the communication was made, but that person may not claim the privilege if there is no holder of the privilege in existence or if the sexual assault counselor is otherwise instructed by a person authorized to permit the disclosure. The privilege exists whether or not the victim is a party to an action. Cal Evid. Code § 1035.8
  • City of Fresno v. Superior Court, 253 Cal. Rptr. 296, 304 (Cal. Ct. App. 1988); Cal. Evid. Code § 912
    • The holder of the privilege must actively claim the privilege in order to prevent disclosure.

Holder of Privilege:

  • Victim when there is no guardian or conservator, victim’s guardian or conservator if victim has a guardian or conservator, or the personal representative of a deceased victim. Cal. Evid. Code § 1035.6
  • The sexual assault counselor shall claim the privilege if he or she is present when the communication is sought to be disclosed and there is a holder of the privilege in existence and if not otherwise instructed by a person authorized to permit disclosure. Cal. Evid. Code § 1036

 

Waiver of Privilege:

  • Privilege waived if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or conduct indicating consent, including failure to claim the privilege in any proceeding.Cal. Evid. Code § 912(a)
  • Where two or more persons are joint holders of the privilege, a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. Cal. Evid. Code § 912(b)
  • A disclosure that is itself privileged is not a waiver of any privilege Cal. Evid. Code § 912(c)
  • A disclosure in confidence of a communication that is protected by the privilege, when disclosure is reasonably necessary for the accomplishment of the purpose for which the sexual assault counselor was consulted, is not a waiver of the privilege. Cal. Evid. Code § 912(d)

None specified.

CAL. EVID. CODE §§ 912 and 1035-1036.2

Colorado^

COLO. REV. STAT. § 13-90-107(k)(I)

  • A victim’s advocate cannot testify about any communications made between the victim and the victim’s advocate without the consent of the victim.
  • Covers in-person testimony and written records or reports.
  • People v. Turner, 109 P.3d 639, 642, 645 (Colo. 2005)
    • Privilege does not apply only to statements made by the victim to the victim's advocate, but also includes records of any assistance, advice or other communication provided by a victim's advocate. The privilege also extends to any services or assistance provided by a victim's advocate.

Holder of Privilege:

  • Only the victim may waive the privilege. COLO. REV. STAT. § 13-90-107(k)(I)

Waiver of Privilege:

  • People v. Turner, 109 P.3d 639, 645 (Colo. 2005)
    • The party seeking to overcome the privilege bears the burden of demonstrating that the privilege has been waived.
    • Waiver of a privilege can be express or implied and must be justified through an evidentiary showing.

None specified.

COLO. REV. STAT. § 13-90-107

Connecticut^

Conn. Gen. Stat. § 52-146k(b)

  • A sexual assault counselor may not disclose any confidential communications made to the sexual assault counselor by a victim in any civil, criminal, legislative, or administrative proceeding without the consent of the victim.
  • Although the statute states that under no circumstances may the location of the rape crisis center or the identity of the sexual assault counselor be disclosed in any civil or criminal proceeding, in In Re Robert H., 509 A.2d 475, 482 (Conn. 1986), the Connecticut Supreme Court held that the identity of the sexual assault counselor must be disclosed in order to determine whether the counselor meets the statutory training requirements.

Holder of Privilege:

  • Only victim may waive the privilege. Conn. Gen. Stat. § 52-146k(b)
  • Sexual Assault v. Connecticut Sexual Assault, No. 70196, 1994 LEXIS 830, at *4 (Conn. Super. Ct. Mar. 30, 1994)
    • A rape crisis center has standing to sue for a violation of the confidentiality of a sexual assault victim’s records.

Waiver of Privilege:

  • Only the victim may waive the privilege. Conn. Gen. Stat. § 52-146k(b)
  • If victim is deceased or incompetent, victim’s guardian or the executor of victim’s estate may waive the privilege. Conn. Gen. Stat. § 52-146k(c)
  • A minor may knowingly waive the privilege established by this section. In any instance where the minor is, in the opinion of the court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, provided such parent or guardian is not the defendant and does not have a relationship with the defendant such that he has an interest in the outcome of the proceeding. Conn. Gen. Stat. § 52-146k(d)

Conn. Gen. Stat. § 52-146k(e)(1)-(3)

  • In matters of proof concerning chain of custody of evidence.
  • In matters of proof concerning the physical appearance of the victim at the time of the assault.
  • Sexual assault counselor knows that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed.

Conn. Gen. Stat. § 52-146k

Delaware^

No statutory privilege for communications between a rape crisis counselor and a sexual assault victim. However, there is statutory protection regarding the disclosure of certain information pertaining to the victim (i.e. residential address, telephone number or place of employment). 11 Del. C. § 9403

N/A

N/A

11 Del. C. § 9403

District of Columbia^

There are two statutes that cover laws about private communications in the District of Columbia., both of which are listed seperately below.

D.C. Code §§ 7-1201.01 to 7-1207.02 District of Columbia Mental Health Information Act

  • No mental health professional (which includes rape crisis counselors and sexual abuse counselors who meet the training requirements outlined below) or mental health facility shall disclose or permit the disclosure of mental health information to anyone, including an employer, without the consent of the client. D.C. Code § 7-1201.02(a)
  • The personal notes of a rape crisis counselor regarding a client shall not be maintained as part of the client’s record of mental health information, and cannot be disclosed except to the degree that the personal notes or the information contained therein are needed in litigation brought by the client against the mental health professional on the grounds of professional malpractice or disclosure in violation of this section.  D.C. Code § 7-1201.03
  • There are civil and criminal penalties for violations of confidentiality.  D.C. Code § 7-1207.01 and 7-1207.02

D.C. Code § 14-307 and 312

  • A sexual assault victim advocate, as defined in D.C. Code § 24-312(a)(7), may not, without consent from the client or his legal representative, disclose any information, confidential in its nature, that he has acquired in attending a client in a professional capacity that was necessary to enable him to act in that capacity, whether the information was obtained from the client or from his family or from the person or persons in charge of him.  D.C. Code § 14-307(a)

There are two statutes that cover laws about private communications in the District of Columbia.

D.C. Code §§ 7-1201.01 to 7-1207.02 District of Columbia Mental Health Information Act

Holder of Privilege: D.C. Code § 7-1202.05(a) and (b)

  • Who may waive the privilege:
    • Client – if 18 years old or older,
    • Joint waiver of a client between ages 14 and 17 and the client’s parent or legal guardian, or
    • Parent or legal guardian of a client under 14.
  • However, if a minor client’s parent or legal guardian has not consented to the services the client is receiving from the rape crisis counselor, the privilege may be waived without authorization from the client’s parent or legal guardian.   
  • Note: provisions address power to authorize disclosures generally.

Waiver of Privilege:

  • Waiver must be written, signed, and must be given voluntarily.  D.C. Code §§ 7-1201.01 and 7-1202.02(a)(4)
  • Waiver must:
    • Specify the nature of the information to be disclosed, who is authorized to disclose, to whom such disclosure is authorized, and the specific purposes for which the information may be used both at the time of the disclosure and at any time in the future;
    • Advise the client of his right to inspect his record of mental health information;
    • State that the waiver is subject to revocation; and
    • Contain the date the authorization was signed and the date the authorization will expire, which must be no longer than 365 days after the date of authorization. D.C. CODE § 7-1202.02(a)
  • The person to whom the privileged information is disclosed may not re-disclose the information without further consent to do so. D.C. CODE § 7-1202.03
  • Waiver can be revoked by providing a written revocation to the recipient of the mental health information and the person authorized to disclose such mental health information; the revocation is effective upon receipt, although the mental health information previously disclosed may be used for the purpose stated in the authorization. D.C. CODE § 7-1202.04
  • Subject to certain notification requirements to the client, a rape crisis counselor has the authority to refuse to disclose or limit disclosure despite authorization by the client to disclose such information if the rape crisis counselor reasonably believes such refusal or limitation is necessary to protect the client from substantial risk of imminent psychological impairment or to protect the client or another person from substantial risk of imminent or serious physical injury.  D.C. Code § 7-1202.06
  • Note: provisions address power to authorize disclosures generally.

 

D.C. Code § 14-307 and 312

Holder of Privilege:

  • Brown v. United States, 567 A.2d 426, 427 (D.C. 1989)
    • The privilege belongs primarily to the client.

Waiver of Privilege

  • Waiver must be written and voluntarily given by the victim. D.C. Code § 14-312(b)
  • When a victim has been adjudicated incompetent by a court of competent jurisdiction for the purpose of asserting or waiving the privilege established by this section, or is decreased, the victim's parent, guardian, or personal representative may assert or waive the privilege. D.C. Code § 14-312(c)(1)
  • If the parent, guardian, or personal representative of the victim described above has been charged with an intrafamily offense, sexual assault, or has had a protection order or a neglect petition entered aganist him or her at the request of or on behalf of the victim, or otherwise has interests adverse to those of the victim with respect to the assertion or waiver of the privilege, the court shall appoint and attorney for purposes of asserting or waiving the privilege. D.C. Code § 14-312(c)(2)
  • Confidential communications are not waived by the presence of a sign language or foreign language interpreter. D.C Code § 14-312(b)(3)

There are two statutes that cover laws about private communications in the District of Columbia.

D.C. Code §§ 7-1201.01 to 7-1207.02 District of Columbia Mental Health Information Act

  • Client initiates a proceeding against the rape crisis counselor for professional malpractice. D.C. Code § 7-1201.03.
  • Disclosure to a third-party payor is allowed to determine the client’s entitlement to payment benefits for professional services rendered, but disclosure must be limited to administrative information, diagnostic information, whether the client is attending voluntarily or involuntarily, the reason for treatment, and a prognosis of the estimated time that treatment might continue. D.C. Code § 7-1202.07(a).
  • Disclosure to other individuals employed at the mental health facility, or to other participating providers is allowed to the extent necessary to deliver professional services to the client.  D.C. Code § 7-1203.01(a) and (b)
  • Mandatory reporting of child abuse or neglect. D.C. Code § 7-1203.02.
  • In an emergency, if necessary to seek emergency hospitalization or otherwise protect the client or another individual from a substantial risk of imminent and serious physical injury, disclosure is permitted to: (1) the victim’s spouse, parent or legal guardian; (2) a duly accredited officer or agent of D.C. in charge of public health; (3) the Department of Mental Health; (4) a mental health services provider; (5) the D.C. Pretrial Services Agency; (6) the Court Services and Offender Supervision Agency; (7) a court exercising jurisdiction over the client as a result of a pending criminal proceeding; (8) emergency medical personnel; (9) an officer authorized to make arrests in D.C.; or (10) an intended victim.  D.C. Code § 7-1203.03(a).
  • To qualified personnel for the purpose of conducting scientific research, management or financial audits, or program evaluation of the rape crisis counselor or the mental health facility, so long as the personnel does not directly or indirectly identify the client in any report.  D.C. Code § 7-1203.05.
  • To a law enforcement official having lawful custody of individual mental health information about the individual to facilitate the delivery of mental health services and mental health supports to the individual.  D.C. CODE § 7-1203.05a.
  • Disclosure is necessary to initiate or seek civil commitment proceedings.  D.C. Code § 7-1204.02.
  • In any civil or administrative proceeding in which the client asserts his mental or emotional condition as an element of the claim or defense.    D.C. Code § 7-1204.03.

D.C. Code § 14-307 and 312

  • Privileged information relates to the mental competency or sanity of an accused in a criminal trial where the accused raises the defense of insanity.
  • Privileged information relates to the mental competency or sanity of a child alleged to be delinquent, neglected, or in need of supervision in any proceeding before the Family Division of the Superior Court.
  • In any criminal or civil case where a person is alleged to have defrauded the District of Columbia or federal government in relation to receiving or providing medical assistance under the D.C. Medical Assistance Act authorized under the Social Security Act or a health care benefit program.
  • In a grand jury, criminal, delinquency, family, or domestic violence proceeding where a person is targeted for or charged with causing the death of or injuring a human being, or with attempting or threatening to kill or injure a human being, or a report has been filed with the police pursuant to mandatory reporting of firearms injuries and the disclosure is required in the interests of public justice.
  • In a criminal or delinquency proceeding where a person is charged with an impaired driving offense and where the person caused the death or injury to a human being, and the disclosure is required in the interest of public justice.
  • A sexual assault victim advocate may not disclose confidential information except (i) as required by statute or a court of law; (ii) as voluntarily authorized in writing by a victim; (iii) to other individuals employed by the DC SANE Program and third party providers to the extent necessary to facilitate the delivery of services to the victim; (iv) to a law enforcement agency to the extent necessary to protect the victim or another individual from a substantial risk of imminent and serious physical injury; (v) to compile statistical or anecdotal information, without personal identifying information; or (vi) for any confidential communications relevant to a claim or defense if the victim files a lawsuit against a sexual assault victim advocate or the DC SANE Program. D.C. Code § 14-312(b)

There are two statutes that cover laws about private communications in the District of Columbia.

  • D.C. Code §§ 7-1201.01 to 7-1207.02 District of Columbia Mental Health Information Act
  • D.C. Code § 14-307 and 312
Florida^

A victim may refuse to disclose, and prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or a trained volunteer, or any record made in the course of advising, counseling or assisting the victim, including any advice given by the sexual assault counselor or trained volunteer. The privilege includes any advice given by the sexual assault counselor or trained volunteer in the course of that relationship    Fla. Stat. § 90.5035(2)

Holder of Privilege:

  • Privilege may be claimed by the victim, victim’s attorney, a guardian or conservator of victim, a personal representative of a deceased victim, or the sexual assault counselor or trained volunteer on behalf of the victim.  Fla. Stat. § 90.5035(3)
  • The authority of a sexual assault counselor or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary.  Fla. Stat. § 90.5035(3)(d)

Waiver of Privilege:

  • Consent must be given in writing.  Fla. Stat. § 90.5035(2)

None specified.

Fla. Stat. § 90.5035

Georgia^
  • An agent of a program cannot be compelled to disclose any evidence in a judicial proceeding that the agent acquired while providing services to a victim, so long as such evidence was necessary to enable the agent to render services, unless the privilege has been waived or a court determines otherwise (as specified in the in camera review section below).  Ga. Code Ann. § 24-5-509(b)
  • The mere presence of a third party during communications between an agent and a victim does not void the privilege, provided the communications occurred in a setting when or where the victim had a reasonable expectation of privacy. Ga. Code Ann. § 24-5-509(f)

Holder of Privilege:

  • Victim.  Ga. Code Ann. § 24-5-509(b)
  • If the victim is or has been judicially determined to be incompetent, the victim’s guardian may waive the victim’s privilege. Ga. Code Ann. § 24-5-509(g)
  • The privilege terminates upon the death of the victim.  Ga. Code Ann. § 24-5-509(d)

Waiver of Privilege:

  • Victim can waive the privilege. Ga. Code Ann. § 24-5-509(b)
  • The agent was a witness or party to the family violence or sexual assault or other crime that occurred in the agent’s presence.  Ga. Code Ann. § 24-5-509(e)
  • Court makes a determination after a pre-trial hearing or an in camera review (as described below) that the evidence sought is subject to disclosure (based on one of the conditions noted below in the in camera review section). Ga. Code Ann. § 24-5-509(c)
    • If a party intends to compel evidence, it must file and serve notice of its intention on the opposing party at least ten days prior to trial, or as otherwise directed by the court.  The court will then hold a pretrial hearing and determine the issue.  Ga. Code Ann. § 24-5-509(h)

Ga. Code Ann., § 24-5-509

Guam^

There is no statutory privilege for communications between a rape crisis counselor and a sexual assault victim.  Guam recognizes a limited list of privileges including psychotherapist-patient privilege and physician-patient privilege.  Guam R. Evid. §§ 503, 504.

N/A

N/A

N/A

Hawaii^

Haw. Rev. Stat. § 505.5(b)

  • A victim may refuse to disclose and may prevent any other person from disclosing confidential communications made to a victim counselor during the course of counseling for the psychological or emotional effects of sexual assault, domestic violence, child abuse, or child neglect. 
  • A victim has a privilege to refuse to disclose evidence that would identify the name, location, or telephone number of a shelter or any facility that provided temporary emergency shelter to the victim.

Holder of Privilege:  Haw. Rev. Stat. § 505.5(c)

  • Privilege may be claimed by the victim, the victim’s guardian or conservator, or the personal representative of a deceased victim.
  • Privilege may be claimed by the victim counselor (who is presumed to have authority to claim the privilege), but only on behalf of the victim.    

Waiver of Privilege: Haw. Rev. Stat. § 505.5(b)

  • Only the victim may waive the privilege. 

Haw. Rev. Stat. § 505.5(d)(1)-(8)

  • Victim counselor reasonably believes that the victim has given perjured testimony and a party to the proceeding has made an offer of proof that perjury may have been committed.
  • In matters of proof concerning the physical appearance and condition of the victim at the time of the assault.
  • Communication is relevant to an issue of breach of duty by the victim counselor or victim counseling program to the victim.
  • Mandatory reporting of child abuse or neglect, domestic abuse, or abuse of a vulnerable adult.
  • Communication is relevant to an issue in proceedings to hospitalize the victim for mental illness or substance abuse, or to discharge a victim previously hospitalized for mental illness or substance abuse.
  • Court orders an examination of the physical, mental, or emotional condition of the victim.
  • Communication is relevant to the physical, mental, or emotional condition of the victim in any proceeding in which the condition is an element of the victim’s claim or defense, or after the victim’s death, if any party relies upon the condition as an element of the party’s claims or defense.
  • Victim initiates a proceeding (administrative or judicial) against the victim counselor or the victim counseling program, in which the competency or practice of the victim counselor or victim counseling program is at issue.  The identifying data of the victim whose records are admitted shall be kept confidential.  The administrative agency shall also close a portion of the proceedings, as necessary, to protect the confidentiality of the victim.

Haw. Rev. Stat. § 626-1, Rule 505.5

Idaho^

There is no statutory privilege for communications between a rape crisis counselor and a sexual assault victim.  Idaho recognizes a statutory privilege for licensed counselors, including licensed professional counselors, in addition to other entities. Idaho Rules of Evidence, Rule 517.

 

N/A

N/A

N/A

Illinois^
  • Generally, no rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the written consent of the victim (or a representative of the victim). 735 Ill. Comp. Stat. 5/8-802.1(d)
  • A rape crisis counselor who knowingly discloses any confidential communication in violation of the law commits a class C misdemeanor. 735 Ill. Comp. Stat. 5/8-802.1(f)

Holder of Privilege:

  • Only the victim, a personal representative of the victim, or a parent or guardian (whose interests are not adverse to the minor) may waive the privilege.  735 Ill. Comp. Stat. 5/8-802.1(c)

Waiver of Privilege:

  • Privilege is not waived by presence of a third person who further expresses the interests of the victim at the time of the communication; group counseling; or disclosure to third person with consent of victim, when reasonably necessary to accomplish purpose for which the counselor is consulted. 735 Ill. Comp. Stat. 5/8-802.1(c)(1)
  • Privilege is not waived when the victim inspects the records, or for victims less than 12 years old, the victim’s parent or guardian (whose interests are not adverse to the minor) inspects the records, or in the case of a minor who is 12 years or older, the victim’s parent or guardian (whose interests are not adverse to the minor) inspects the records with the victim’s consent.  The privilege is not waived in the case of an adult victim who has a guardian of his or her person, when the guardian inspects the records with the victim’s consent.  735 Ill. Comp. Stat. 5/8-802.1(c)(2)
  • When the victim is deceased or incompetent, the victim’s administrator or executor of the victim’s estate may waive the privilege unless the administrator or executor has an interest adverse to the victim. 735 Ill. Comp. Stat. 5/8-802.1(c)(4)
  • A minor victim over age 12 may knowingly waive the privilege. 735 Ill. Comp. Stat. 5/8-802.1(c)(4)
  • When the court decides that a minor victim over 12 is incapable of knowingly waiving the privilege, the victim’s parent or guardian may waive the privilege on behalf of the minor victim, unless the parent or guardian has an interest adverse to the minor victim. 735 Ill. Comp. Stat. 5/8-802.1(c)(4)
  • An adult victim who has a guardian of his or her person may knowingly waive the privilege established in this Section. When the victim is, in the opinion of the court, incapable of knowingly waiving the privilege, the guardian of the adult victim may waive the privilege on behalf of the victim, unless the guardian has been charged with a violent crime against the victim or otherwise has any interest adverse to the victim with respect to the privilege. 735 Ill. Comp. Stat. 5/8-802.1(c)(5)
  • If failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person, then any rape crisis counselor or rape crisis organization participating in good faith in the disclosing of records and communications will have immunity from any liability, civil, criminal, or otherwise, that might result from the action. 735 ILL COMP. STAT. 5/8-802.1(e)
  • In any proceeding, civil or criminal, arising out of a disclosure under this Section, the good faith of any rape crisis counselor or rape crisis organization who disclosed the confidential communication shall be presumed. 735 ILL. COMP. STAT. 5/8-802.1(e)

735 Ill. Comp. Stat. 5/8-802.1

Indiana^

Ind. Code § 35-37-6-9

  • No victim, victim advocate, or victim service provider can be compelled to give testimony or produce records concerning confidential communications in any judicial, legislative, or administrative proceeding. There is an excepton, however, in the case of a victim advocate or victim service provier, if a victim specifically consents to the disclosure in a written authorization with an expiration date. Sec. 9(a)    
  • No victim, victim advocate, or victim service provider can be compelled to give testimony in any judicial, legislative, or administrative proceeding that would identify the name, address, location, or telephone number of any facility that provided temporary emergency shelter to the victim of the offense that is the subject of the proceeding unless the facility is a party to the proceeding. Sec. 9(b)
  • A victim service provider or victim advocate may not require a victim to consent to the disclosure of information concerning confidential communications and confidential information as a condition of the victim receiving services. Sec. 9(c)

Holder of Privilege:

  • Only the victim may waive the privilege. Ind. Code § 35-37-6-11.

Waiver of Privilege:

  • A victim does not waive any privileges or confidentiality protections if the victim: (1) testifies about underlying acts of domestic violence, dating violence, sexual assault, or stalking; or (2) reveals that he or she used or attempted to use the services of a victim service provider or victim advocate.  Ind. Code § 35-37-6-14.
  • However, if a victim partially discloses the contents of a privileged communication while testifying, either party may request the court to rule that the privilege afforded by this statute be waived to the extent that the privilege applies to that portion of the communication.   Ind. Code §§ 35-37-6-10(a), 35-37-6-15.
  • Such a waiver applies only to the extent necessary to require any witness to respond to questions concerning the confidential communications that are relevant to the facts and circumstances of the case.  Ind. Code § 35-37-6-10(b).
  • The partial disclosure of confidential communication does not waive the privilege concerning the remainder of the confidential communication.  Ind. Code § 35-37-6-15.
  • If a victim brings a suit alleging malpractice against the victim advocate or the victim service provider, the victim advocate may testify or produce records regarding confidential communications with the victim. Ind. Code § 35-37-6-11
  • A victim may provide testimony concerning an offense.  Ind. Code § 35-37-6-9(d)
  • The consent to disclose information on behalf of an un-emancipated child who is less than eighteen years of age or an incapacitated victim may be made by a custodial parent, custodian, guardian, or guardian ad litem in a written authorization that contains the date the consent expires, provided the person giving the consent did not commit an offense against the victim.  Ind. Code § 35-37-6-9(e), (f).
  • A victim or, in the case of a deceased victim, the victim's personal representative may authorize a victim advocate or victim service provider to release confidential information or other information by signing a written authorization that specifies what information will be released, to whom the information will be released, and an expiration date.  A personal representative cannot give consent for release if the representative abused or killed, or assisted in abusing or killing, the victim.  Ind. Code § 35-37-6-13(a)-(d).
  • A victim service provider may disclose aggregate information that does not identify a victim regarding services and demographic information, in order to comply with federal and state data collection requirements. Ind. Code § 35-37-6-17.

Ind. Code §§ 35-37-6-1 to -17

Iowa^
  • A victim counselor may not be examined or be required to give evidence in any civil or criminal proceeding as to any confidential communication made by a victim to the victim counselor unless the victim waives the privilege or disclosure is compelled by a court. Iowa Code § 915.20A(2)
  • A clerk, secretary, or other employee who prepares or manages the confidential reports or working papers of a victim counselor may not be examined or compelled to produce evidence of any confidential communication unless the victim waives the privilege or disclosure is compelled by a court. Iowa Code § 915.20A(2)
  • Under no circumstances may the location of the crime victim center or the identity of the victim counselor be disclosed in any civil or criminal proceeding. Iowa Code § 915.20A(2)

Holder of Privilege:    

  • Only the victim may waive the privilege (information may also be disclosed by a court, see description of § 915.20A(7) below). Iowa Code § 915.20A(2)

Waiver of Privilege:

  • Victim must waive the privilege in writing. Iowa Code § 915.20A(2)
  • If a victim is deceased or incompetent, the privilege can be waived by the victim’s guardian or personal representative. Iowa Code § 915.20A(3)
  • A minor may waive the privilege if he is capable of knowingly and intelligently waiving the privilege. Iowa Code § 915.20A(4)
  • If a minor is not capable of knowingly and intelligently waiving the privilege in the opinion of the court, the minor’s parent or guardian may waive the privilege, unless the parent or guardian either (1) is the defendant, or (2) has an interest adverse to the minor. Iowa Code § 915.20A(4)
  • In matters of proof concerning the chain of custody of evidence.
  • In matters of proof concerning the physical appearance of the victim at the time of the injury or the counselor’s first contact with the victim after the injury.
  • Victim counselor has reason to believe that the victim has given perjured testimony, and defendant or state has made an offer of proof that perjury may have been committed. IOWA CODE § 915.20A(5)

Iowa Code § 915.20A

Kansas^

There are two statutes that cover private communications in Kansas.

Kan. Stat. Ann. § 65-5810

Licensed professional counselor privilege:  

Confidential communications between client and licensed professional and clinical counselor are protected at the same level as attorney-client privilege.  Kan. Stat. Ann. § 65-5810(a) and (b).

State v. Berberich, 978 P.2d 902 (1999)

    • Statutory counselor privilege is not applicable to unlicensed counselors.
    • Even if the client reasonably believes the counselor is licensed, the privilege will not extend to communications unless the counselor is actually licensed.

Kan. Stat. Ann. § 74-5323

Psychologist-client privilege:  

  • Confidential communications between client and licensed psychologist are protected at the same level as attorney-client privilege.  KAN. Stat. Ann. §74-5323(a)

There are two statutes that cover private communications in Kansas.

Kan. Stat. Ann. § 65-5810

N/A

Kan. Stat. Ann. § 74-5323

N/A

There are two statutes that cover private communications in Kansas.

Kan. Stat. Ann. § 65-5810

  • A licensed professional counselor is not prohibited from (1) testifying about adult abuse, adoption, child abuse, child neglect or other matters pertaining to the welfare of a child or (2) seeking collaboration or consultation with professional colleagues or administrative superiors, or both, on behalf of the client. Kan. Stat. Ann. § 65-5810(c)
  • No privilege exists for information required to be reported to a public official. Kan. Stat. Ann. § 65-5810(c)

Kan. Stat. Ann. § 74-5323

  • A licensed psychologist is not prohibited from (1) testifying about adult abuse, adoption, child abuse, child neglect or other matters pertaining to the welfare of a child or (2) seeking collaboration or consultation with professional colleagues or administrative superiors, or both, on behalf of the client. Kan. Stat. Ann. § 74-5323(b)
  • No privilege exists for information required to be reported to a public official. Kan. Stat. Ann. § 74-5323(b)

Kan. Stat. Ann. § 65-5810 and Kan. Stat. Ann. § 74-5323

Kentucky^
  • A client may refuse to disclose and prevent another from disclosing confidential communications between the client and her or his sexual assault counselor (and any other person present at the direction of the counselor), made for the purpose of counseling the client, including family members. Ky. R. Evid. 506(b)
  • All client records and reports of a rape crisis center that directly or indirectly identify a client or former client of the rape crisis center are confidential and shall not be disclosed by any person except as provided by law. Ky. Rev. Stat. § 211.608

Holder of Privilege

  • Client, client’s guardian or conservator, or the personal representative of a deceased client may claim the privilege.
  • Sexual assault counselor may claim the privilege in the absence of the client, but only on behalf of the client.KY. R. EVID. 506(c)

Waiver of Privilege: No procedure specified.

  • Client is asserting her physical, mental, or emotional condition as an element of a claim or defense. KY. R. EVID. 506(d)(1)
  • Any party is relying upon a deceased client’s physical, mental, or emotional condition as an element of a claim or defense. KY. R. EVID.506(d)(1)
  • Judicial finding of need, as outlined below under in camera review (i.e. private review by the judge). KY. R. EVID.506(d)(2)
  • Ky. R. Evid. 506
  • Ky. Rev. Stat. § 211.608
Louisiana^

There are two statutes that cover laws about private communications.

La. Code Evid. art. 510

  • Limited to civil proceedings only—a victim has a privilege to refuse to disclose and to prevent another person from disclosing any confidential communication made between the victim and his health care provider for the purpose of advice or treatment of the victim’s emotional, physical, or mental condition. La. Code Evid. art. 510(B)(1)
  • Limited to criminal proceedings only - provides a privilege for communications between patients (or patient's representative) and their physicians or psychotherapists (or patient's representative) for the purpose of advice, diagnosis or treatment. La. Code Evid. art. 510(C)(1)

La. Rev. Stat. §§ 46:2121-46:2128- Family Violence Shelters

  • No person shall be required to disclose, by way of testimony or otherwise, a privileged communication or to produce records or opinions relating to such privileged communication in any civil or criminal proceeding and by way of any discovery procedure. La. Rev. Stat. § 46:2124.1(B)                        

There are two statutes that cover laws about private communications.

La. Code Evid. art. 510

Holder of Privilege

  • Privilege may be claimed by the victim or by the victim’s legal representative. La. Code Evid. art. 510(D)
  • Sexual assault counselor or other health care providers or their representatives are presumed to have the authority to claim the privilege on behalf of the victim.  La. Code Evid. art. 510(D).     

Waiver of Privilege: No procedure specified.

  • The statutory exceptions to privilege specified below only waive the privilege as to testimony at trial or discovery of the privileged communications. La. Code Evid. art. 510(E).

 

La. Rev. Stat. §§ 46:2121-46:2128- Family Violence Shelters

Holder of Privilege: Not specified.

Waiver of Privilege: No procedure specified.

There are two statutes that cover laws about private communications.

La. Code Evid. art. 510(B)(2)(a)-(m); 510(C)(2)(a)-(f); 510(F)

  • Civil and Criminal: 
    • Victim relies upon her health condition as an element of her claim or defense. 
    • Communication made to the sexual assault counselor was intended to assist the patient or another person to commit or plan to commit a crime. 
    • Communication was made in the course of a court-ordered examination, under certain circumstances. 
    • Victim brings a malpractice suit against the sexual assault counselor. 
    • Communication is relevant to proceedings concerning custody or visitation (when patient is subject of proceeding or only in certain circumstances when the patient is a party), child abuse, elder abuse, or abuse of persons with disabilities or persons who are or incompetent adults. 
    • Communication regarding blood alcohol level or drugs taken from a patient. 
  • Civil only: 
    • Any party relying upon a deceased victim's health condition as an element of a claim or defense. 
    • Communication is relevant to a peer review committee or disciplinary proceeding to determine whether a health care provider has deviated from appropriate professional standards.
    • Victim is the subject of a commitment proceeding when victim has failed or refused to submit to an examination by a health care provider appointed by the court regarding issues relating to the interdiction or commitment proceeding, provided the patient has been informed of the appointment and consequences of not submitting to the examination.
    • Communication is relevant to a now deceased patient’s capacity to enter into a contract or execute any testament. 
    • Communications relevant in an action contesting any testament executed or claimed to have been executed by a deceased patient. 
  • Criminal only:
    • Communication in the form of a tangible object removed from the patient’s body, relevant to the crime charged. 
    • Communication is a record of the results of a test for blood alcohol level or drugs taken and patient is under arrest or was subsequently arrested for an offense related to the test 

La. Rev. Stat. §§ 46:2121-46:2128- Family Violence Shelters

None specified.

  • La. Code Evid. art. 510
  • La. Rev. Stat. §§ 46:2121-46:2128- Family Violence Shelters
Maine^
  • No sexual assault counselor may be required to testify in any civil or criminal proceeding about any information acquired during the provision of sexual assault counseling services without the consent of the victim of the sexual assault. Me. Rev. Stat. tit. 16, § 53-A (2)
  • A sexual assault counselor or a rape crisis center may not be required to disclose to the court any records, notes, memoranda, or documents containing confidential communications.  Me. Rev. Stat. tit. 16, § 53-A (2)

Holder of Privilege:  

  • Only the victim may waive the privilege.  Me. Rev. Stat. tit. 16, § 53-A(2)

Waiver of Privilege: No procedure specified.

  • Mandatory reporting or cooperation in an investigation of abuse or neglect of child or incapacitated/ dependent adult. Me. Rev. Stat. tit. 22 § 4011
  • Consent of the victim. Me. Rev. Stat. tit. 16, § 53-A(2)
  • Judicial determination of necessity.  Exception relates to information communicated to or otherwise learned by a sexual assault counselor in connection with the provision of sexual assault counseling services.  Applies if court determines that disclosure is necessary to the proper administration of justice. Me. Rev. Stat. tit. 16, § 53-A(2)  

Me. Rev. Stat. tit. 16, § 53-A

Maryland^

No statutory privilege for communications between a rape crisis counselor and a sexual assault victim, unless a rape crisis counselor qualifies as a licensed psychologist, psychiatrist or a licensed social worker.

N/A

N/A

N/A

Massachusetts^
  • A sexual assault counselor shall not disclose any confidential communication, without the prior written consent of the victim.
  • Confidential communications are not subject to discovery and are inadmissible in any criminal or civil proceeding without the prior written consent of the victim. Mass. Gen. Laws Ch. 233, § 20J
  • Commonwealth. v. Vega, 449 Mass. 227, 230, 866 N.E.2d 892, 894 (2007)
    • Although this provision does not contain the word “privilege,” it nonetheless has been held to create an evidentiary privilege.

Holder of Privilege

  • Only the victim may waive the privilege. Mass. Gen. Laws Ch. 233, § 20J  

Waiver of Privilege

  • Requires prior written consent.  Mass. Gen. Laws Ch. 233, § 20J
  • The victim’s testimony to the content of a privileged communication under this section does not constitute a waiver of the privilege unless the testimony is given with the knowledge of the privilege and the intent to waive it. Commonwealth v. Neumyer, 731 N.E.2d 1053, 1062 (Mass. 2000).

None specified.

Mass. Gen. Laws Ch. 233, §§ 20J, 20L

Michigan^

A confidential communication, or any report, working paper, or statement contained in a report or working paper, given or made in connection with a consultation between a victim and a sexual assault counselor, shall not be admissable as evidence in any criminal or civil proceeding without the prior written consent of the victim. Mich. Comp. Laws § 600.2157a(2)   

Holder of Privilege

  • Only victim may waive the privilege. Mich. Comp. Laws § 600.2157a(2) 

Waiver of Privilege

  • Written consent must be given prior to the proceeding. Mich. Comp. Laws § 600.2157a(2)
  • Bowman v. Rapelje, 2014 WL 3767805 (E.D. Mich. July 31, 2014)
    • Reports or statements given or made in connection with a consultation between a victim and a sexual assault counselor “shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim.”
    • A minor could not consent to the release of such privileged records.

Mandatory reporting of child abuse or neglect. Mich. Comp. Laws § 600.2157(a)(2)  

Mich. Comp. Laws § 600.2157a

Minnesota^

Sexual assault counselors may not be allowed to disclose any opinion or information received from or about the victim without consent of the victim. Minn. Stat. § 595.02(k)

Holder of Privilege:

  • Only victim may give consent to disclosure. Minn. Stat. § 595.02(k)

Waiver of Privilege: No procedure specified.

A counselor may be compelled to identify or disclose information in investigations or proceedings related to neglect or termination of parental rights if the court determines good cause exists. Minn. Stat. § 595.02(k)

Minn. Stat. § 595.02

Mississippi^

While there is no specific statutory privilege for communications between a rape crisis counselor and a sexual assault victim, Mississippi law does state that a licensed professional counselor may not disclose any information acquired during consultation with clients. Miss. Code. Ann.§ 73-30-17.

See also Jane Student 1 v. Williams, 206 F.R.D. 306, 308 (S.D. Ala. 2002), which recognizes Miss. Code Ann. § 73-30-17 a privilege that explicitly covers licensed (or certified or registered) professional counselors.

N/A

  • With the written consent of the client or, in the case of death or disability or in the case of a minor, with the written consent of the parent, legal guardian or conservator, or other person authorized by the court to file suit. Miss. Code. Ann.§ 73-30-17. 
  • When a communication reveals the contemplation of a crime or harmful act, or intent to commit suicide. Miss. Code. Ann.§ 73-30-17.
  • When a person waives the privilege by bringing charges against a licensed professional counselor for breach of privileged communication, or any other charges. Miss. Code. Ann.§ 73-30-17.

Miss. Code. Ann.§ 73-30-17.

Missouri^

Any person employed by or volunteering services to a rape crisis center for victims of sexual assault shall be incompetent to testify concerning any confidential information that would identify individuals served by the center and any information or records that are directly related to the advocacy services provided to such individuals, unless the confidentiality requirements are waived in writing by the individual served by the center. MO. ST. 455.003 (1) and (2)

Holder of Privilege:

  • Only the individual served by the rape crisis center may waive the privilege. MO. ST. 455.003(2)

Waiver of Privilege:

  • Requires written waiver.  MO. ST. 455.003(2)

None specified.

MO. ST. § 455.003 (V.A.M.S. 455.003)

Montana^
  • An advocate may not be examined as to any communication made to the advocate by a victim and may not divulge records kept during the course of providing shelter, counseling or crisis intervention services. Mont. Code Ann. § 26-1-812(1)
  • The privilege continues even if the victim is unreachable and it terminates upon the death of the victim. Mont. Code Ann. § 26-1-812(2)

Holder of Privilege:

  • Privilege belongs to the victim. Mont. Code Ann. § 26-1-812(2)

Waiver of Privilege:

  • Privilege can only be waived by express consent of the victim.   Mont. Code Ann. § 26-1-812(2)
  • Privilege is not waived just because victim is unreachable. Mont. Code Ann. § 26-1-812(2)
  • “Unless a report is otherwise required by law.”  Mont. Code Ann. § 26-1-812(1)
  • After the death of the victim. Mont. Code Ann. § 26-1-812(2)

Mont. Code Ann. § 26-1-812

Nebraska^
  • A victim, any third party necessary to facilitate communication or the advocacy process (and which is disclosed to the advocate for the purpose of overcoming the adverse effects of domestic violence or sexual assault) or an advocate without the consent of the victim, or a minor or incapacitated victim without the consent of a custodial guardian or a guardian ad litem appointed by application of either party, shall not be compelled to give testimony or to produce records concerning a confidential communication for any purpose in any criminal, civil, legislative, administrative or other proceeding.    Neb. Rev. Stat. § 29-4303(1)
  • Unless the facility is a party to the proceeding, a victim, victim advocate or any third party necessary to facilitate communication or the advocacy process cannot be compelled to provide testimony in any criminal, civil, legislative, administrative or other proceeding that would identify the name, address, location, or telephone number of a safe house, abuse shelter or other facility that provided temporary emergency shelter to the victim of the offense that is the subject of the proceeding.   Neb. Rev. Stat. § 29-4303(2)

Holder of Privilege:

  • Only a victim may consent to disclosure. Neb. Rev. Stat. § 29-4304(2) and Neb. Rev. Stat. § 29-4303(1)
  • A custodial guardian or a guardian ad litem appointed by application can consent on behalf of a minor or incapacitated victim. Neb. Rev. Stat. § 29-4303(1)

Waiver of Privilege:

  • A victim does not waive the privilege by testifying in court about the crime, except if such victim partially discloses the contents of a confidential communication while testifying, then either party may request the court to rule that the privilege afforded by this statute be waived to the extent that the privilege applies to that portion of the communication.    Neb. Rev. Stat. § 29-4304(1)(a)
  • Any waiver shall apply only to the extent necessary to require any witness to respond to counsel's questions concerning a confidential communication that is relevant to the case. Neb. Rev. Stat. § 29-4304(1)(b)
  • An advocate cannot waive the protections afforded a victim.  Neb. Rev. Stat. § 29-4304(2)
  • In camera review (i.e. private review by the judge). Neb. Rev. Stat. § 29-4303(1)(a)-(b)
  • Mandatory reporting of adult or child abuse or neglect, as well as suspected adult or child abuse or neglect. Neb. Rev. Stat. § 29-4304(3)
  • Any other legal duty to report a criminal or unlawful act. Neb. Rev. Stat. § 29-4304(3)
  • If the victim brings suit against an advocate or an agency, business or organization in which the advocate was employed or served as a volunteer at the time of the advocacy relationship, then the advocate may testify or produce records regarding confidential communications with the victim. Neb. Rev. Stat. § 29-4304(2)

Neb. Rev. Stat. § 29-4302 to § 29-4304

Nevada^
  • A victim who seeks advice, counseling or assistance from a victim’s advocate has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications.  Nev. Rev. Stat. § 49.2547

Holder of Privilege: Nev. Rev. Stat. § 49.2548

  • Privilege may be claimed by the victim, the guardian or conservator of the victim, the personal representative of a deceased victim, or the victim’s advocate ( but only on behalf of the victim).
  • The authority of the victim’s advocate to claim the privilege will be presumed absent evidence to the contrary.

Waiver of Privilege: No procedure specified.

Nev. Rev. Stat. § 49.2549(1)-(4)

  • The purpose of the victim in seeking services from a victim’s advocate is to enable or aid any person to commit or plan to commit what the victim knows or reasonably should have known is a crime or fraud.
  • Communication concerns a report of abuse or neglect of a child, older person or vulnerable adult, but only as to that portion of the communication.
  • Communication is relevant to an issue of breach of duty by the victim’s advocate to the victim or by the victim to the victim advocate.
  • Disclosure is otherwise required by law.

Nev. Rev. Stat. §§ 49.2541-49.2549

New Hampshire^
  • A victim has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to a sexual assault counselor, including any record made in the course of support, counseling or assistance of the victim, in all civil, administrative and criminal legal proceedings, including discovery proceedings. N.H. Rev. Stat. § 173-C:2, C:3
  • The privilege and confidentiality extends to (i) a third person present to assist communication with the victim, (ii) a third person present to assist a victim who is physically challenged and (iii) co-participants in support group counseling the victim. N.H. Rev. Stat. § 173-C:2
  • The location and address of a rape crisis center are absolutely privileged. N.H. Rev. Stat. § 173-C:6

Holder of Privilege:

  • Victim, an attorney on the victim’s behalf, the guardian of an incompetent victim, or a minor victim who is emancipated, married, or over the age of 15 (unless such person is incapable of knowingly waiving the privilege). N.H. Rev. Stat. § 173-C:3

Waiver of Privilege:

  • Waiver must be in writing, and must be given prior to a proceeding. N.H. Rev. Stat. § 173-C:2(I)
  • A minor victim who is emancipated, married, or over the age of 15 may waive the privilege unless the court finds that the minor is incapable of knowingly waiving the privilege. N.H. Rev. Stat. § 173-C:3(c)
  • Waiver as to a specific portion of a confidential communication does not constitute a waiver of the entire communication. N.H. Rev. Stat. § 173-C:4
  • Sexual assault counselor knows that the victim has given perjured testimony and when the defendant has made an offer of proof that there is probable cause to believe that perjury has been committed.   N.H. Rev. Stat. § 173-C:7
  • Mandatory reporting of child abuse or neglect. N.H. Rev. Stat. § 173-C:10
  • Privilege terminates upon the death of the victim. N.H. Rev. Stat. § 173-C:2 (I)

N.H. Rev. Stat. §§ 173-C:1 to 173-C:10

New Jersey^

N.J. Stat. Ann. § 2A:84A-22.15

  • A victim counselor has a privilege not to be examined as a witness in a civil or criminal proceeding with regard to any confidential communication.
  • A victim counselor or victim cannot be compelled to provide testimony that would identify the name, address, location, or telephone number of a shelter that provided temporary emergency shelter to the victim of the offense that is the subject of the proceeding, unless the facility is a party to the proceeding..    
  • State v. J.G., 619 A.2d 232, 236 (N.J. Super. Ct. App. Div. 1993)
    • The privilege is broad enough to encompass both direct and indirect victims of crimes of violence.
    • The person whose statements are protected under this privilege does not have to be the individual upon whom the crime was perpetrated.

Holder of Privilege:

  • Privilege must be claimed by the victim counselor, unless otherwise instructed by prior written consent of the victim. N.J. Stat. Ann. § 2A:84A-22.15

Waiver of Privilege:   N.J. Stat. Ann. § 2A:84A-22.15

  • Waiver must be in writing, and must be given prior to a proceeding.
  • Victim, an incompetent victim’s guardian, or a deceased victim’s executor or administrator may waive the privilege, unless the victim’s guardian, executor or administrator is the defendant or has an interest adverse to the victim.  
  • Privilege may be knowingly waived by a juvenile.
  • If a minor victim is incapable of knowingly waiving the privilege, the victim’s parent or guardian may waive the privilege, unless the victim’s parent or guardian is the defendant or has an interest adverse to the victim.               
  • State v. J.G., 619 A.2d 232, 238 (N.J. Super. Ct. App. Div. 1993)
    • The power to waive the privilege rests solely with the victim.
    • Mistaken release of the confidential files by the victim counselor does not constitute a waiver of the privilege.
  • Disclosure to a defendant of statements or information given by a victim to a victim-witness coordinator, where such disclosure is required by the State or Federal Constitution. N.J. Stat. Ann. § 2A:84A-22.16
  • A person waives his or her right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or she or any other person while the holder thereof has (a) contracted with anyone not to claim the privilege or (b) without coercion and with knowledge of his or her right or privilege, made disclosure of any part of the privileged matter or consented to such disclosure by anyone. N.J. Stat. Ann. § 2A:84A-29

N.J. Stat. Ann. §§ 2A:84A-22.13 to 2A:84A-22.16, 22.29

New Mexico^
  • A victim or victim counselor without consent of the victim (or without consent of a custodial guardian or guardian ad litem if a minor or incapacitated victim) shall not be compelled to provide testimony or produce records concerning confidential communications for any purpose in any criminal action or other judicial, legislative or administrative proceeding.
  • A victim counselor or a victim shall not be compelled to provide testimony in any civil or criminal proceeding that would identify the name, address, location or telephone number of a safe house, abuse shelter or other facility that provided temporary emergency shelter to the victim of the offense or occurrence that is the subject of a judicial, legislative or administrative proceeding unless the facility is a party to the proceeding.  N.M. Stat. § 31-25-3.
  • Statements made to counselors at Albuquerque Rape Crisis Center were held by the New Mexico Supreme Court to be privileged much the same way statements made to a psychiatrist are privileged under Jaffe v. Redmond, 518 U.S. 1, 10-12 (1996).  Albuquerque Rape Crisis Center v. Blackmer, 138 N.M. 398 (N.M. 2005)

Holder of Privilege:

  • The victim, the victim’s custodian guardian, or the victim’s guardian ad litem holds the privilege.  N.M. Stat. § 31-25-3(A)

Waiver of Privilege:

  • Victim or the custodial guardian (or guardian ad litem) of a minor or incapacitated victim may give consent to disclosure.  N.M. Stat. § 31-25-3(A)
  • A victim does not waive the privilege by testifying in court about the crime, however, if a victim partially discloses the contents of a privileged communication while testifying, either party may request the court rule that the privilege afforded by this statute be waived to the extent that the privilege applies to that portion of the communication.   Waiver shall apply only to the extent necessary to require any witness to respond to questions concerning the confidential communication that are relevant to the facts and circumstances of the case.  N.M. Stat. § 31-25-4(A)
  • A victim counselor shall not have authority to waive the protections afforded to a victim under the Victim Counselor Confidentiality Act; provided that if a victim brings suit against a victim counselor or the agency, business or organization in which the victim counselor was employed or served as a volunteer at the time of the counseling relationship and the suit alleges malpractice during the counseling relationship, the victim counselor may testify or produce records regarding confidential communications with the victim without liability for those actions.  N.M. Stat. § 31-25-4(B)
  • Mandatory reporting of suspected child abuse or neglect as set forth in N.M. Stat. § 32A-4-3 and N.M. Stat. § 31-25-5.
  • Victim counselor knows that victim is about to commit a crime.  N.M. Stat. § 31-25-5
  • Victim brings a malpractice suit against a victim counselor or the organization in which the victim counselor worked or volunteered at the time of the counseling relationship.  N.M. Stat. § 31-25-4(B)
  • Communications with a victim advocate affiliated with a law enforcement agency or the office of a district attorney are not privileged.  N.M. Stat. § 31-25-2(E).  Nevertheless, because “victim advocates are part of the prosecution team,” their work is protected by work product doctrine.  Brandenburg v. Blackmer, 137 N.M. 258, 263 (N.M. 2005).  Accordingly, statements made to the victim advocate are discoverable, but the victim advocate’s own impressions, statements or questions to the victim, conclusions, etc. are not. 

N.M. Stat. §§ 31-25-1 to -6

New York^
  • A rape crisis counselor or victim shall not be required to disclose a communication made by a victim or advice given by the rape crisis counselor in the course of the counselor’s services.
  • A rape crisis counselor or victim shall not be required to disclose any records made in the course of the services given to the client.
  • Persons working for a rape crisis counselor or for the same program as the rape crisis counselor (e.g., clerk, stenographer, etc.) shall not be allowed to disclose any communication made by a victim or advice given by the rape crisis counselor in the course of the counselor’s services.
  • Persons working for a rape crisis counselor or for the same program as the rape crisis counselor (e.g., clerk, stenographer, etc.) shall not be allowed to disclose any records made in the course of the services given to the client. 

Holder of Privilege:

  • Only the victim, the personal representative of a deceased victim, or the conservator of an incompetent victim may waive the privilege. N.Y. CPLR § 4510(c)

Waiver of Privilege:

  • A victim who authorizes disclosure of any privileged communication to an employee of victim services or an insurance representative in order to obtain compensation from an insurance company or under article 22 of the executive law shall not be deemed to have waived the privilege created by this section. N.Y. CPLR § 4510(d)

N.Y. CPLR § 4510(b)(1)-(3)

  • Victim authorizes disclosure.
  • Victim reveals the intent to commit a crime or harmful act in the course of counseling.
  • Victim institutes charges against the rape crisis counselor or rape crisis program for malpractice which concern the confidential communications.

Case Law Exception:

  • Although there are no cases discussing the rape crisis counselor privilege under N.Y. CPLR § 4510, People v. Bridges, 142 Misc. 2d 789, 538 N.Y.S.2d 701 (N.Y. Co. Ct. 1989) held that because a rape crisis volunteer was not a “certified social worker” under N.Y. CPLR § 4508, the communications with the victim were not privileged. By analogy, if a volunteer is not a certified “Rape Crisis Counselor” as defined in N.Y. CPLR § 4510(a)(2), then communications between the volunteer and the victim would likely not be privileged either.

N.Y. CPLR § 4510

North Carolina^

N.C. Gen. Stat. § 8-53.12(b)

  • No agent of a center shall be required to disclose any information which the agent acquired during the provision of services to a sexual assault victim or domestic violence victim and which information was necessary to enable the agent to render the services;
  • Does not apply when the victim waives the privilege conferred.
  • Privilege terminates upon the death of the victim.   

Holder of Privilege

  • Only victim may waive the privilege.  N.C. Gen. Stat. § 8-53.12(b)
  • Mandatory reporting of abuse or neglect of a child or disabled adult. N.C. Gen. Stat. § 8-53.12(c)
  • Any resident or presiding judge in the district in which the action is pending shall compel disclosure, either at the trial or prior thereto, if the court finds, by a preponderance of the evidence, a good faith, specific and reasonable basis for believing that:
    • The records or testimony sought contain information that is relevant and material to factual issues to be determined in a civil proceeding, or is relevant, material, and exculpatory upon the issue of guilt, degree of guilt, or sentencing in a criminal proceeding for the offense charged or any lesser included offense,
    • The evidence is not sought merely for character impeachment purposes, and
    • The evidence sought is not merely cumulative of other evidence or information available or already obtained by the party seeking the disclosure or the party's counsel.  N.C. Gen. Stat. § 8-53.12(b).
  • Upon such a determination, in camera review is required (see below).

N.C. Gen. Stat. § 8-53.12 

North Dakota^
  • All agents, employees, and volunteers participating in a domestic violence sexual assault program shall maintain the confidentiality of:
    • The address, telephone number, and other identifying information of a shelter, safe home and place of emergency safe housing.  N.D. Cent. Code § 14-07.1-18(1)(a)
    • The name, address, telephone number, personally identifying information, and case file or history of any client receiving services from a sexual assault or domestic violence program.  N.D. Cent. Code § 14-07.1-18(1)(b)
    • The name, address, telephone number, and other identifying information of an agent, employee, or volunteer providing services through a sexual assault program.  N.D. Cent. Code § 14-07.1-18(1)(c)
  • A violation of this privilege is an infraction.  N.D. Cent. Code § 14-07.1-18(3)

Holder of Privilege

  • Only the victim may waive the privilege.  N.D. Cent. Code § 14-07.1-18(2)(a) 

Waiver of Privilege

  • A victim may only consent to the release of information that relates to the victim or the victim’s dependents. N.D. Cent. Code § 14-07.1-18(2)(a)   
  • Consent of the client.  N.D. Cent. Code § 14-07.1-18(2)(a)
  • Disclosure of the information is necessary for the efficient and safe operation of a sexual assault program, or for the safety of an employee, agent, volunteer, or client of a sexual assault program, or for the protection of a third party reasonably thought to be in need of protection. N.D. Cent. Code § 14-07.1-18(2)(b)
  • An agent, employee, or volunteer has knowledge or reasonable cause to suspect a child has been abused or neglected. N.D. Cent. Code § 14-07.1-18(2)(d)

N.D. Cent. Code § 14-07.1-18

Ohio^

There is no statutory privilege for communications between a rape crisis counselor and a sexual assault victim.

N/A

N/A

N/A

Oklahoma^
  • The case records, case files, case notes, client records, or similar records of a domestic violence or sexual assault program certified by the Attorney General or of any employee or trained volunteer of such a program about any victim who has utilized the services of the domestic violence/sexual assault program or counselor shall be confidential and shall not be disclosed.  Okla. Stat. tit. 74, § 18p-3(B.1)
  • The location of any victim seeking services from a domestic violence or sexual assault program is confidential and shall not be disclosed.  Okla. Stat. tit. 74, § 18p-3(C)
  • The home address, personal telephone number, and social security numbers of staff and volunteers at certified sexual assault programs are confidential information and may not be disclosed.  Okla. Stat. tit. 74, § 18p-3(D)
  • A sexual assault program must have a written policy and procedures for keeping victim information confidential.  Okla. Admin. Code §§ 75:15-5-4(6)(a); 75:15-5-4.1(d)
  • When a client record is established, the program shall discuss the confidentiality requirements with each client and maintain documentation in the client record that they have reviewed the circumstances under which confidential information may be revealed.  Okla. Admin. Code § 75:15-5-4.1(d)
  • Client records shall be maintained in a locked and secure manner.  Okla. Admin. Code § 75:15-5-5

Holder of Privilege:

  • Only the victim or the personal representative of a deceased or disabled victim may waive the privilege.  Okla. Stat. tit. 74, § 18p-3(B.3)   

Waiver of Privilege:

  • Waiver must be in writing.  Okla. Stat. tit. 74, § 18p-3(B.3)
  • Waiver limited to specific information victim allows in the release; victim chooses when, how and what personal information will be shared, or not shared, and with whom. Okla. Admin. Code § 75:15-5-4.1(a)(6)
  • For a waiver of confidentiality to be valid, it must:
    • Be voluntary;
    • Relate only to the participant or the participant's dependents;
    • Clearly describe the scope and any limitations of the information to be released;
    • Include an expiration date; and
    • Inform the participant that consent can be withdrawn at any time, orally or in writing. Okla. Admin. Code § 75:15-5-4.1

The case records, case files, or case notes of programs specified in paragraph 1 of this subsection shall be confidential and shall not be disclosed except with the written consent of the individual, or in the case of the individual's death or disability, of the individual's personal representative or other person authorized to sue on the individual's behalf or by court order for good cause shown by the judge in camera.  Okla. Stat. tit. 74, § 18p-3(B.3)

  • Okla. Stat. tit. 74, §§ 18p-1 to 18p-3
  • Okla. Admin. Code §§ 75:15-2-5; 75:15-5-4 to -5
Oregon^

There is no privilege for communications between a rape crisis counselor and a sexual assault victim, but Or. Rev. Stat. §409.273(2)(b) provides that all information relating to clients that is maintained by a sexual assault crisis center or crisis line be confidential.  Because this statute refers to crisis centers or crisis lines that receive funding from, are contracted with, or otherwise approved by the State of Oregon, it likely would not apply to RAINN. 

N/A

N/A

N/A

Pennsylvania^
  • A sexual assault counselor may not disclose the victim’s confidential oral or written communications to the counselor or consent to be examined in any court or criminal proceeding without the written consent of the victim.  42 Pa. Cons. Stat. § 5945.1(b)(1);accord Commonwealth v. Davis, 674 A.2d 214, 216 (Pa. 1996)
  • Also includes an interpreter or coparticipant who is present during counseling. 42 Pa. Cons. Stat. § 5945.1(b)(2)

Holder of Privilege:

  • Only victim may waive the privilege.  42 Pa. Cons. Stat. § 5945.1(b)(1)

Waiver of Privilege:

  • Consent to disclosure must be in writing.  42 Pa. Cons. Stat. § 5945.1(b)(1)
  • V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325 (Pa. Super. Ct. 1998)
    • Although foster child testified about facts surrounding her abuse by her father in criminal trial, this did not result in the waiver of confidentiality of information otherwise protected under the sexual assault counselor privilege (such as confidential records) because waiver of those privileges must be in writing.
  • Commonwealth v. Askew, 666 A.2d 1062, 1065 (Pa. Super. Ct. 1995)
    • The sexual assault counselor-victim privilege was not waived when a minor victim’s mother allowed the sexual assault counselor to report allegations of child abuse to the police, as the sexual assault counselor has a statutory duty to make this report.
    • The privilege was also not waived when a sexual assault counselor reported allegations of child abuse and disclosed statements made by the victim during the counseling sessions to the Commonwealth’s medical expert—again, the sexual assault counselor has a duty to report suspected child abuse to cause medical tests to be performed on the child, and the report to the medical expert was only in furtherance of this goal.
  • Commonwealth v. Davis, 674 A.2d 214, 215 (Pa. 1996)
    • Privilege is waived when the victim allows the prosecution to have access to the protected records.
  • Commonwealth v. Gibbs, 642 A.2d 1132, 1135 (Pa. Super. Ct. 1994)
    • Because the prosecution called the counselor as a witness, defendant was entitled to confront his accuser and access the counselor’s records.
  • Because of the mandatory reporting statute, the statutory privilege between sexual assault counselors and victims does not apply in situations involving known or suspected child abuse.  23 Pa. Cons. Stat. § 6311(a)
  • Commonwealth v. Askew, 666 A.2d 1062, 1065 (Pa. Super. Ct. 1995)
    • Sexual assault counselors have a statutory duty to report allegations of child abuse to the police.  The court held that the victim had not waived her statutory privilege when the counselor reported the victim’s allegations to the police and a medical professional.

42 Pa. Cons. Stat. § 5945.1

Puerto Rico^
  • Any victim of a crime, whether or not a party to the action, has the privilege to refuse to disclose or to prevent another from disclosing a confidential communication between the victim and the counselor, if any one of them reasonably believed such communication to be necessary for the treatment and help required.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A (B).
  • Neither a counselor or a victim, whether or not a party to the action, shall be required to give the name, address, location or telephone number of a help center, shelter, or another facility that gives temporary shelter to a crime victim, unless the facility in question is a party to the action. P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A(C).
  • The privilege may be claimed not only by the holder thereof, but also by a person authorized by the victim, a legal counsel or by the counselor who received the communication.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A (B).
  • All communications between the persons attended to in the Women’s Advocate Office and its personnel shall be privileged and shall be protected by the confidentiality privilege established in the Rules of Evidence of Puerto Rico.  P.R. Laws Ann. tit. 8, § 652.
  • All communications between a victim of domestic violence and any other public entity or body, which renders services to victims of domestic abuse, shall enjoy the same privilege and confidentiality, in harmony with Rule 26-A of the Rules of Evidence of Puerto Rico and the Bill of Rights of Victims and Witnesses of Crime.  P.R. Laws Ann. tit. 8, § 652.
  • The privilege may be claimed not only by the holder thereof, but also by a person authorized by the victim, a legal counsel or by the counselor who received the communication.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A(B).

 

  • The fact that a victim testifies in court regarding the crime does not constitute a waiver of the privilege.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A (D).
  • If, as part of testimony given in court, the victim reveals part of the confidential communication, it shall be understood as a waiver of the privilege with respect to that portion of the testimony only.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A (D)(1).
  • The victim cannot waive the privilege through her legal counsel.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A (E).
  • If the victim files an action for professional malpractice against the counselor or against the help and counseling center where the counselor is employed or serves as a supervised volunteer, said counselor’s testimony is not subject to the privilege.  P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A (E)

P.R. Laws Ann. tit. 32 Ap. IV, Rule 26-A ; 

P.R. Laws Ann. tit. 8, § 652

Rhode Island^

No privilege for communications between a rape crisis counselor and a sexual assault victim.

However, the Rhode Island Supreme Court has determined that an absolute privilege protecting communications between sexual assault counselors and victims would be unconstitutional and that, if enacted, a sexual assault counselor-victim privilege must include the possibility of in camera review (i.e. private review by the judge). 

N/A

N/A

N/A

South Carolina^

No statutory privilege for communications between a rape crisis counselor and a sexual assault victim.

N/A

N/A

N/A

South Dakota^

No statutory privilege for communications between a rape crisis counselor and a sexual assault victim -

unless the rape crisis counselor is a "licensed professional counselor" or "liscensed professional counselor - mental health". There is a privilege for communications with a licensed professional counselor under S.D. Codified Laws § 36-32-27. Under this provision of South Dakota law, licensed professional counselors are prohibited from disclosing any information they may have acquired from a person receiving services from them that was necessary to enable the rendering of professional services. 

N/A

There are limited exceptions to privilege protection under S.D. Codified Laws § 36-32-27, including:

  • If written consent is obtained from the person or the person’s personal representative, in the case of death or disability, of the person’s own personal representative, other person authorized to sue, or the beneficiary of an insurance policy on the person’s life, health, or physical condition;
  • If the communication reveals the contemplation or the commission of a crime or harmful act;
  • If the person is a minor and the information indicates that the minor was a victim or subject of a crime, then the licensed professional counselor may be required to testify in a proceeding in which the commission of such crime is the subject of the inquiry; and
  • If the person waives the privilege by bringing charges against the licensed professional counselor.

N/A

Tennessee^

The records of domestic violence shelters and rape crisis centers shall be treated as confidential by the records custodian of such center unless the individual to whom the records pertain authorizes their release.  Tenn. Code § 36-3-623(1)

Holder of Privilege:

  • Only the individual to whom the records pertain may authorize the release of the records. Tenn. Code § 36-3-623(1)

Waiver of Privilege: No procedure specified.

None specified.

Tenn. Code § 36-3-623

Texas^
  • A communication between an advocate and a survivor, or a person claiming to be a survivor, that is made in the course of providing sexual assault advocacy services to the survivor is confidential and may not be disclosed except as provided otherwise. Tex. Gov’t Code § 420.071(a)
  • A record of the identity, personal history, or background information of a survivor, or information concerning the victimization of the survivor that is created by or provided to an advocate or maintained by a sexual assault program is confidential and may not be disclosed except as provided otherwise. Tex. Gov’t Code § 420.071(b)
  • A person who receives information from a confidential communication or record may not disclose it except to the extent that disclosure is consistent with the authorized purposes for which the information was obtained. Tex. Gov’t Code § 420.071(c)
  • The privilege exists regardless of when the sexual assault survivor received the services of the advocate or sexual assault program. Tex. Gov’t Code § 420.071(d)
  • An intentional or knowing violation of the privilege is a Class C misdemeanor. Tex. Gov’t Code § 420.075

Holder of Privilege:

  • Survivor, parent or guardian of a minor survivor, a legal guardian of an incompetent survivor, an attorney ad litem appointed for the survivor or a personal representative of a deceased survivor may waive the privilege. Tex. Gov’t Code § 420.072(a)(2); § 420.073(a)

Waiver of Privilege:

  • Consent for disclosure must be in writing and signed by the survivor, a parent or legal guardian if the survivor is a minor, a legal guardian if the survivor has been adjudicated incompetent to manage the survivor’s personal affairs, an attorney ad litem appointed for the survivor, or a personal representative if the survivor is deceased, and must specify:
    • The information or records covered by the release,
    • The reason or purpose for the release, and
    • The person to whom the information is to be released. Tex. Gov’t Code § 420.073(a)(1)-(3)
  • A survivor or other person authorized to consent may withdraw consent to the release of information by submitting a written notice of withdrawal to the person or sexual assault program to which consent was provided.  Withdrawal of consent does not affect information disclosed before the date written notice of the withdrawal was received. Tex. Gov’t Code § 420.073(b)
  • There are different consent requirements for the release of evidence contained in an evidence collection kit. Tex. Gov’t Code § 420.0735
  • Sexual assault survivor brings a proceeding against an advocate or a sexual assault program.  Tex. Gov’t Code § 420.072(a)(1)
  • Disclosure may take place in a court or administrative proceeding that is either a criminal proceeding or a certificate revocation proceeding in which disclosure is relevant to claims or defenses of the advocate or sexual assault program.  Tex. Gov’t Code § 420.072(a)(1)
  • Advocate may disclose to medical or law enforcement personnel if the advocate determines that there is a probability of imminent physical danger to any person for whom the communication or record is relevant. Tex. Gov’t Code § 420.072 (b)(1)
  • Advocate may disclose to medical or law enforcement personnel if the advocate determines that there is a probability of immediate mental or emotional injury to the survivor. Tex. Gov’t Code § 420.072 (b)(1)
  • Disclosure to a governmental agency is permitted if such reporting is required or authorized by law. Tex. Gov’t Code § 420.072 (b)(2)
  • Disclosure to a qualified person to the extent necessary to complete a management audit, financial audit, program evaluation, or research is permitted, but any report completed under this provision may not directly or indirectly identify a sexual assault survivor. Tex. Gov’t Code § 420.072 (b)(3)
  • Advocate may disclose to a person who has the written consent of the survivor, a parent or legal guardian if the survivor is a minor, a legal guardian if the survivor has been adjudicated incompetent to manage the survivor’s personal affairs, an attorney ad litem appointed for the survivor, or a personal representative if the survivoror is deceased. Tex. Gov’t Code § 420.072 (b)(4)
  • The information may also be disclosed to an advocate or a person under the supervision of a counseling supervisor who is participating in the evaluation or counseling of the survivor. Tex. Gov’t Code § 420.072 (b)(5)
  • Disclosure is not permitted to a parent or legal guardian of a minor survivor if advocate or program knows or has reason to believe that the parent or legal guardian is a suspect in the sexual assault of the survivor. Tex. Gov’t Code § 420.072 (c)
  • Disclosure is required in response to a subpoena issued in accordance with the law in any criminal investigation or proceeding.  Tex. Gov’t Code § 420.074

Tex. Gov’t Code § 420.003, § 420.011, § 420.051 and 420.071-420.075

Utah^

The confidential communication between a victim and a sexual assault counselor cannot be disclosed to a third person without consent. Utah Code § 77-38-204

Holder of Privilege: Utah Code § 77-38-204(2) and (3)

  • Victim or the parents or guardian of a minor victim may waive the privilege. 
  • If the victim is a minor, the counselor may disclose the confidential communications to the victim’s parents if believed to be in the best interests of the victim.

Waiver of Privilege:

  • A victim who is not a minor may consent to disclosure, but in such a case, the sexual assault counselor may only disclose a confidential communication if the counselor believes the disclosure is necessary to accomplish the desired result of counseling. Utah Code § 77-38-204(3)
  • The parents or guardian of a minor victim may waive the privilege if the sexual assault counselor has made representations that it is in the best interest of the minor victim to disclose the contents of the confidential communication. Utah Code § 77-38-204(2)
  • If the victim is a minor, the sexual assault counselor may disclose the confidential communication to the victim’s parents if the sexual assault counselor believes that it is in the best interest of the victim to do so. Utah Code § 77-38-204(1)
  • Mandatory reporting of suspected or actual child abuse or neglect. Utah Code § 77-38-204(4)

Utah Code §§ 77-38-201 to 77-38-204 (“Confidential Communications for Sexual Assault Act”)

Vermont^

A victim receiving direct services from a crisis worker has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to the crisis worker, including any record made in the course of providing support, counseling or assistance to the victim. Vt. Stat. tit. 12, § 1614(b)

Holder of Privilege:

  • Victim or crisis worker, on behalf of the victim, may claim the privilege.  A crisis worker is presumed to have authority to claim the privilege on behalf of the victim. Vt. Stat. tit. 12, § 1614(b)

Waiver of Privilege:

  • No procedure specified.

None specified.

Vt. Stat. tit. 12, § 1614

Virgin Islands^

No statutory privilege for communications between a rape crisis counselor and a sexual assault victim.

N/A

N/A

N/A

Virginia^

In order to ensure the safety of adult, youth, and child victims of domestic violence, dating violence, sexual assault, or stalking, and their families, programs and individuals providing services to victims of sexual violence may not disclose any personally identifying information or individual information collected in connection with services requested, utilized, or denied  through sexual or domestic violence programs, or reveal individual client information.Va. Code § 63.2-104.1(A) and (B)(1) and (2) 

Holder of Privilege:

  • The victim, or in the case of an unemancipated minor victim, the minor and the parent or guardian, or the guardian of an incapacitated victim may waive the privilege related to individual client information unless that person is the abuser of the minor, incapacitated person, or the abuser of the other parent of the minor.  Va. Code § 63.2-104.1(B)(2)

Waiver of Privilege:

  • Consent to disclosure must be informed, written, and reasonably time-limited.  Va. Code § 63.2-104.1(B)(2)

Va. Code § 63.2-104.1(D)(1)-(3)

  • In order to comply with federal, state, tribal, or territorial reporting, evaluation, or data collection requirements, sexual assault programs and individuals providing services to victims of sexual or domestic violence may share nonpersonally identifying aggregate data regarding services to their clients and nonpersonally identifying demographic information.
  • For protection order enforcement purposes, sexual assault programs and individuals providing services to victims of sexual or domestic violence may share court- and law enforcement-generated information contained in secure governmental registries.
  • Sexual assault programs and individuals providing services to victims of sexual or domestic violence may share information necessary for law enforcement and prosecution purposes.
  • Applicability of Mandatory Reporting of Child Abuse and Neglect to Sexual Assault Advocates, Op. Va. Att’y Gen. 09-097, 2010 WL 132545 (Jan. 5, 2010).  Generally, advocates working in sexual assault crisis centers are not statutorily mandated to report child abuse and neglect.  Exceptions:
    • If advocate performs activities placing him in Va. Code § 63.2-1509(A) categories, he is required to report suspected child abuse or neglect.
    • Va. Code § 1509(A) categories include doctors, hospital residents and interns, nurses, social workers and family-services specialists, probation officers, teachers and other public or private school employees, child care providers, emergency medical services personnel, mental health professionals, law enforcement officers, and court-appointed special advocates.

Va. Code § 63.2-104.1

Washington^

Wash. Rev. Code § 5.60.060(7)

A sexual assault advocate may not, without consent of the victim, be examined as to any communication made between the victim and the sexual assault advocate.  Wash. Rev. Code § 5.60.060(7)

Wash. Rev. Code § 70.125.030 and § 70.125.065  (“Victims of Sexual Assault Act”)

Records maintained by a community sexual assault program and underserved populations provider shall not be made available to any defense attorney as part of discovery in a sexual assault case.  Wash. Rev. Code § 70.125.065

Wash. Rev. Code § 5.60.060(7)

Holder of Privilege:

  • The victim is the holder of the privilege.  Wash. Rev. Code § 5.60.060(7)

Waiver of Privilege: No procedure specified.

Wash. Rev. Code § 70.125.030 and § 70.125.065  (“Victims of Sexual Assault Act”)

Holder of Privilege: Not specified.

Waiver of Privilege:

  • State v. Gregory, 147 P.3d 1201, 1220 (Wash. 2006)
    • Mention of the fact that counseling occurred, without divulging the content of the counseling record, does not waive the privilege. 
  • State v. Espinosa, 733 P.2d 1010, 1012-13 (Wash. Ct. App. 1987)
    • The presence of an investigating police officer during an interview with a sexual assault victim did not waive the privilege established under this statute because the police officer’s presence during the interview was not casual, and instead, it was the rape counselor who was present as observer during the officer’s interview with the victim and the officer was a necessary party to the communication.
    • The presence of third persons during an interview with a sexual assault victim, when desired by the victim, does not necessarily waive the privilege.

Wash. Rev. Code § 5.60.060(7)

  • If failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. 
  • Any sexual assault advocate participating in good faith in the disclosing of records and communications shall have immunity from any liability, civil, criminal, or otherwise, that might result from the action.
  • Good faith of sexual assault advocate who disclosed the confidential communication will be presumed. 

Wash. Rev. Code § 70.125.030 and § 70.125.065  (“Victims of Sexual Assault Act”)

See "In Camera Review" below.

In Camera Review: Provided for by statute. 

  • Records maintained by a community sexual assault program and underserved populations provider shall not be made available to any defense attorney as part of discovery in a sexual assault case unless:
    • A written pretrial motion is made by the defendant to the court stating that the defendant is requesting discovery of the community sexual assault program or underserved populations provider records;
    • The written motion is accompanied by an affidavit or affidavits setting forth specifically the reasons why the defendant is requesting discovery of the community sexual assault program or underserved populations provider records;
    • The court reviews the community sexual assault program or underserved populations provider records in camera (i.e. private review by the judge) to determine whether the community sexual assault program or underserved populations provider records are relevant and whether the probative value of the records is outweighed by the victim’s privacy interest in the confidentiality of such records taking into account the further trauma that may be inflicted upon the victim by the disclosure of the records to the defendant; and
    • The court enters an order stating whether the records or any part of the records are discoverable and setting forth the basis for the court’s findings. Wash. Rev. Code § 70.125.065(1)-(4)
  • State v. Espinosa, 733 P.2d 1010, 1012 (Wash. Ct. App. 1987)
    • The trial court is not required to balance on the record the probative value of the rape crisis center’s records against the victim’s interest in the confidentiality of such records because such a rule would defeat the purpose of the statute by requiring the disclosure of information that is presumptively privileged.

Standard for In Camera Review:

  • State v. Kalakosky, 852 P.2d 1064, 1077 (Wash. 1993)
    • Before a court will conduct an in camera review (i.e. private review by the judge) of records privileged under this statute, the defendant must make a particularized factual showing that such records are likely to contain material relevant to the defense; the possibility of finding exculpatory material is insufficient to lift the privilege.
  • State v. Espinosa, 733 P.2d 1010, 1011 (Wash. Ct. App. 1987)
    • When a privileged record contains nothing inconsistent with any evidence to which the defendant was given access or with the victim’s trial testimony, disclosure of the privileged records is not required.
  • State v. Ahlfinger, 749 P.2d 190, 195 (Wash. Ct. App. 1988)
    • Defendant will not gain access to rape crisis counseling notes simply because a witness for the prosecution used those notes to refresh his memory before testifying—the notes are still subject to the balancing analysis described above before disclosure can be compelled.
  • Wash. Rev. Code § 5.60.060(7)
  • Wash. Rev. Code § 70.125.030 and § 70.125.065  (“Victims of Sexual Assault Act”)
West Virginia^

No program licensed pursuant to the Domestic Violence Act may disclose, reveal, or release or be compelled to disclose, reveal or release, any written records or personal or personally identifying information about a program participant created or maintained in providing services, regardless of whether the information has been encoded, encrypted, hashed, or otherwise protected.  W. Va. Code § 48-26-701(a)

Holder of Privilege:

  • Only the person seeking or who has sought services from the program may waive the privilege.  W. Va. Code § 48-26-701(a)(1)

Waiver of Privilege:

  • Generally, waiver must be in writing and must be signed by the client, but oral consent is allowed in emergency situations defined by legislative rule.  W. Va. Code § 48-26-701(a)(1); W. Va. Code § 48-26-701(f)
  • A victim of domestic violence, dating violence, sexual assault, or stalking shall not be required to provide consent to release his or her personally identifying information as a condition of eligibility for the services, nor may any personally-identifying information be shared in order to comply with federal or state reporting, evaluation, or data collection requirements.  W. Va. Code § 48-26-701(g)
  • The statute includes detailed information about how batterer intervention and prevention program participants can authorize the release of information by signing certain releases, but this is not directly relevant to records of rape crisis centers.  W. Va. Code § 48-26-701(b)

 W. Va. Code § 48-26-701(a)(1)-(6)

  • In an action against any person having custody or control over a child or incapacitated adult to abate any abuse or neglect of the child or incapacitated adult.
  • Mandatory reporting of abuse or neglect of a child or incapacitated adult, or in an action to abate an emergency situation requiring immediate remedial treatment.
  • Upon a court order, as provided below.
  • To protect against a clear and substantial danger of imminent injury by a person receiving services to himself or herself or another.

W. Va. Code § 48-26-208, § 48-26-214 and § 48-26-701

Wisconsin^

A victim has a privilege to refuse to disclose and to prevent anyone else from disclosing confidential communications made or information obtained or disseminated among the victim, the victim’s advocate acting in the scope of his or her duties as an advocate, and persons providing counseling, assistance, or support services under an advocate’s direction, if the communication was made or the information was obtained or disseminated for the purpose of providing counseling, assistance or support services to the victim. Wis. Stat. § 905.045(2)

Holder of Privilege:  Wis. Stat. § 905.045(3)

  • Privilege may be claimed by the victim, the victim’s guardian or conservator, the personal representative of a deceased victim, or the victim’s advocate on the victim’s behalf. 
  • An advocate’s authority to claim the privilege in this statute is presumed in the absence of evidence to the contrary. 

Waiver of Privilege: No procedure specified.

Mandatory reporting of child abuse or neglect. Wis. Stat. § 905.045(4)

Wis. Stat. § 905.045

Wyoming^
  • A sexual assault victim’s advocate may not testify concerning a confidential communication made by a victim in the course of their counseling relationship in any civil, criminal, legislative, or administrative proceeding.  Wyo. Stat. § 1-12-116(b)(i)
  • Any employee of a family violence and sexual assault program who has access to confidential communication may not testify except in those circumstances where the advocate may testify.  Wyo. Stat. § 1-12-116(b)(ii)
  • Only the victim may waive the privilege.  Wyo. Stat. § 1-12-116(b)(i)(A)(I)
  • Consent to disclosure must be express.  Wyo. Stat. § 1-12-116(b)(i)(A)(I)
  • Mandatory reporting of child abuse or neglect.Wyo. Stat. § 1-12-116(b); Wyo. Stat. § 14-3-205(a)

Wyo. Stat. § 1-12-116




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