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Confidentiality Laws

Last Updated: April 2023
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 the 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 that provided 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 (or with respect to a minor or incapacitated victim, a custodial guardian or a guardian ad litem).   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, 336-337 (Ala. Crim. App. 1992)
    • Although the victim may subjectively intend not to abandon the privilege, if victim’s conduct, viewed objectively, manifests a purpose not to insist on the privilege, then the privilege should fairly be deemed to have been waived.
  • Limited to criminal proceedings (except for testimony concerning the name, address, location, or phone number of a facility that provided temporary emergency shelter to the victim unless the facility is a party to the proceeding is also privileged in a civil proceeding, as described above).   Ala. Code § 15-23-42(a), (b)
  • Mandatory reporting of suspected child abuse or neglect.   Ala. Code § 15-23-45
  • Any evidence that the 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 at the time of the counseling relationship, 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 provide testimony in a civil, criminal, or administrative proceeding that would identify the name, address, location, or telephone number of a safe house or abuse shelter or other facility that provided temporary emergency shelter to the victim of the offense or transaction that is the subject of the proceeding unless the court or hearing officer determines that the information is necessary and relevant to the facts of the case. Alaska Stat. § 18.66.200(c)
  • A victim or victim counselor cannot be compelled to provide testimony civil, criminal, or administrative proceeding 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 facts of 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 authorized to give consent under § 18.66.200. Alaska Stat. § 18.66.220(b)

Waiver of Privilege:

  • A victim does not waive the privilege by testifying in a civil, criminal, or administrative proceeding 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 testifyingin a civil, criminal, or administrative proceeding, either party may request the court or hearing officer 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 and only to the extent they are relevant to the facts of 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 incompetent 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 suspected 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 vicim counselor of a duty arising out of the victim-victim counselor relationship.    
  • Communication is admissible hearsay under the excited utterance hearsay exception in the Alaska Rules of Evidence.
  • Proceeding concerns whether to place a child into the
    custody of the state.
  • A communication made during the victim-victim counselor relationship if the services of the victim counselor were sought, obtained or used in order to enable anyone to commit (or plan) a crime or escape detection or apprehension after the commission of the crime.
  • A criminal proceeding concerning criminal
    charges against a victim where the victim is charged
    with a crime against a minor.
  • A criminal proceeding concerning criminal
    charges against a victim where the 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 her-/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 shall not disclose records, notes, documents, correspondence, reports, or memoranda that contain opinions, theories, or information made while advising, counseling or assisting the victim, or that are 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. Ariz. Rev. Stat. § 13-4430(A), (B)
    • 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. § 13-4401(19)

Waiver of Privilege:

  • Victim must waive the privilege in writing. Ariz. Rev. Stat. § 13-4430(A), (B)
  • If the crime victim advocate, with the written or verbal consent of the victim, discloses to the prosecutor or a law enforcement agency any privileged communication between the crime victim advocate and the victim, including any records, notes, documents, correspondence, reports or memoranda, the prosecutor or law enforcement agent 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, 557, 315 P.3d 1200 , 1214 (2014)

Ariz. Rev. Stat. § 13-4430(C)

  • Crime victim advocate knows that victim will give or has given perjured testimony.
  • The privileged communication contains exculpatory evidence.  

Ariz. Rev. Stat. §§ 13-4401, 13-4430, 12-2239 and 12-2240

Arkansas

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

N/A

N/A

Shelters (Ark. Code § 9-4-106(5))

Licensed Counselors (Ark. Code § 17-27-301, 302, and 311)

Licensed Social Workers (Ark. Code § 17-103-107)

Domestic Violence Advocate  (Ark. Code § 9-6-112)

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 any of the following: (a) the holder of the privilege, (b) a person who is authorized to claim the privilege by the holder of the privilege, or (c) the sexual assault counselor at the time the confidential 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:

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

Waiver of Privilege:

  • Privilege is 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 of the holder of the privilege indicating consent, including failure to claim the privilege in any proceeding in which the holder has legal standing and opportunity to claim such privilege. 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 1035-1037.8

Colorado

Confidentiality between victim’s advocate and victim

COLO. REV. STAT. § 13-90-107(k)(I)

  • A domestic violence or sexual assault victim’s advocate cannot testify about any communications made by the victim to the victim’s advocate (but see below) 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

Confidentiality between victim and sexual assault counselor

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 or criminal case or proceeding or any 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 the parent or guardian is not the defendant and does not have a relationship with the defendant such that the parent or guardian 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 by the victim.

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 a victim (i.e. residential address, telephone number or place of employment). 11 Del. C. § 9403

N/A

N/A

11 Del. C. § 9403; 24 Del. C. § 3913

District of Columbia

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

D.C. Code §§ 7-1201.01 to 7-1207.03 and D.C. Code § 7-1207.01 to7-1207.02:  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 § 14-312

  • A sexual assault counselor, as defined in D.C. Code § 14-312(a)(7), may not, without consent from the client or the client’s 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,
    • For a client between ages 14 and 17, the client and the client’s parent or legal guardian, or
    • For a client under age 14, only the parent or legal guardian.
  • 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 §§ 7-1202.01 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, except where an authorization is executed in connection with a client's obtaining a life or noncancellable or guaranteed renewable health insurance policy, in which case the authorization shall be specific as to its expiration date which shall not exceed 2 years from the date of the policy; or where an authorization is executed in connection with the client's obtaining any other form of health insurance in which case the authorization shall be specific as to its expiration date which shall not exceed 1 year from the date of the policy;
    • Be signed by the person or persons authorizing the disclosure; 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 § 14-312

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 intra-family offense, sexual assault, or has had a protection order or a neglect petition entered against 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, or disclosure to, a sign language or
    foreign language interpreter, third party participating in
    group counseling with the sexual assault victim; or
    third party with the consent of the victim where
    reasonably necessary to accomplish the purpose for
    which the sexual assault counselor is consulted. D.C. Code § 14-312(b)(3)
  • Notwithstanding § 4-1321.02, sexual assault
    counselors are exempt from mandatory reporting of
    any crime disclosed in a confidential communication
    unless the sexual assault counselor has actual
    knowledge that the crime disclosed to the sexual
    assault counselor involves: (A) A victim under the age
    of 13; (B) A perpetrator or alleged perpetrator with
    whom the sexual assault victim has a significant
    relationship, as that term is defined in § 22-3001(10);
    or (C) A perpetrator or alleged perpetrator who is more
    than 4 years older than the sexual assault victim. D.C
    Code § 14-312(b)(4)
  • The presence of a sexual assault counselor does not
    waive any privilege otherwise guaranteed by law. D.C
    Code § 14-312(b-1)

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

  • If and to the extent the mental health professional’s personal notes or the information contained therein is needed in litigation if the 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)
  • 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 correctional institution or 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(a)

D.C. Code § 14-307 and § 14-312

  • With respect to confidential information acquired by a physician or surgeon or mental health professional, or a domestic violence counselor, or a human trafficking counselor, or a sexual assault counselor while attending to a client in a professional capacity, the following exceptions apply under D.C. Code § 14-307(b):
    • 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.
    • Information that relates to the mental competency or sanity of an accused in a criminal trial where the accused raises the defense of insanity.
    • Information that 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, or where a person is alleged to
      have violated § 22-933.01 (financial exploitation
      of a vulnerable adult or elderly person).
    • 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 counselor 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 counselor 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 § 14-312
Florida

Confidentiality between sexual assault counselor/ trained volunteer/ domestic violence advocate and victim:

  • 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:

  • Must be prior written consent. Fla. Stat. § 90.5035(2)

None specified.

Fla. Stat. § 90.5035

Georgia

Confidentiality between an agent and a victim

  • 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 by a preponderance of the evidence (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 (i.e. private review by the judge, 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)
    • In criminal proceedings, 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 attorney-client privilege, clergyman-penitent privilege, psychotherapist-patient privilege, and physician-patient privilege.  Guam R. Evid. §§ 503, 504.

N/A

N/A

N/A

Hawaii

Confidentiality between victim counselor and victim

HRS § 626-1, Rule 505.5

  • 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 safe house, abuse shelter or any facility that provided temporary emergency shelter to the victim.

Holder of Privilege:  HRS § 626-1, Rule 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: HRS § 626-1, Rule 505.5(b)

  • Only the victim may waive the privilege. 

HRS § 626-1, Rule 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.

HRS § 626-1, Rule 505.5

Idaho

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

Idaho Rules of Evidence recognizes a privilege for licensed counselors, including licensed professional counselors, in addition to other entities. Specifically, a client has a privilege in any civil or criminal action to which the client is a party to refuse to disclose and to prevent any other person from disclosing confidential communications made in the furtherance of the rendition of licensed counseling services to the client, among the client, the client's licensed counselor, and persons who are participating in the licensed counseling under the direction of the licensed counselor including members of the client's family. Idaho Rules of Evidence, Rule 517.

The privilege may be claimed by the client, or for the client through the client's licensed counselor, lawyer, guardian or conservator, or the personal representative of a deceased client. The authority of the licensed counselor, lawyer, guardian, conservator or personal representative to do so is presumed in the absence of evidence to the contrary. Idaho Rules of Evidence, Rule 517.

There is no privilege under this rule for:

(1) Civil Action. In a civil action, case or proceeding by one of the parties to the confidential communication against the other.

(2) Proceedings for Guardianship, Conservatorship or Hospitalization. As to a communication relevant to an issue in proceedings for the appointment of a guardian or conservator for a client for mental illness or to hospitalize the client for mental illness.

(3) Child Related Communications. In a criminal or civil action or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child, including, but not limited to, the abuse, abandonment or neglect of a child.

(4) Licensing Board Proceedings. In an action, case or proceeding under Idaho Code § 54-3404.

(5) Contemplation of Crime or Harmful Act. If the communication reveals the contemplation of a crime or harmful act.

Idaho Rules of Evidence, Rule 517.

N/A

Illinois

Confidentiality between rape crisis counselor and victim

  • 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

Confidentiality between victim advocate/service provider and victim

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 exception, however, in the case of a victim advocate or victim service provider, 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

Confidentiality between victim counselor and victim

  • 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

Neither holder of privilege nor procedure for waiver of privilege specified.

Kan. Stat. Ann. § 74-5323

Neither holder of privilege nor procedure for waiver of privilege specified.

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

Confidentiality between counselor and client

  • 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. Ky. R. Evid. 506(c)
  • 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 private communications.

Healthcare provider and victim

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 or her 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)

Confidentiality between representatives/employees of community shelter and victim

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 their health condition as an element of their 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

Confidentiality between sexual assault counselor/ advocate/rape crisis center and victim

  • 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. Mass. Gen. Laws Ch. 233, § 20J.
  • 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.
  • Commonwealth v. Jones, 478 Mass. 65, 71, 82 N.E.3d 1013, 1018 (2017).
    • Defendant is not entitled to pretrial inspection of statutorily privileged psychiatrist and counseling center records pertaining to victim.  Acceptance of such an argument would destroy the rape crisis center counselor privilege because presumably any records of confidential discussion with a rape crisis counselor would contain information relevant to sexual assault allegations.

Holder of Privilege

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

Waiver of Privilege

  • Requires prior written consent of the victim.  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 admissible as evidence in any criminal or civil proceeding without the prior written consent of the victim. Mich. Comp. Laws § 600.2157a(2)

Under Mich. Comp. Laws § 600.2157a, privilege extends “to communications between a victim and a sexual assault or domestic assault counselor.” People v. Bell, No. 342753, 2019 WL 4732615, at *2 (Mich. Ct. App. Sept. 26, 2019)   

Holder of Privilege

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

Waiver of Privilege

  • Written consent must be given by the victim 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 records.
  • People v. Cowles, No. 336178, 2018 WL 3480685, at *4 (Mich. Ct. App. July 19, 2018).
    • Defendant failed to show via concrete, articulable facts, that the victim's psychological records were necessary and material to his defense, and therefore, his due process rights were not violated.

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

Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to the Child Protection Law. A clergy member is not relieved from reporting suspected child abuse or child neglect if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity.  Mich. Comp. Laws Ann. § 722.631.

  • Mich. Comp. Laws Ann. § 722.631 abrogates privileges in communications other than those between attorney and client, or priest and penitent, in child protective proceedings. See In re Blakeman, 326 Mich. App. 318, 333, 926 N.W.2d 326, 334–35 (2018)  

Mich. Comp. Laws § 600.2157a

Minnesota

Sexual assault counselors may not 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 sexual assault 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.

Holder of Privilege:

  • Privilege is held by the client. Miss. Code. Ann.§ 73-30-17.

Waiver of Privilege:

  • Requires written consent of the client or, in the case of death or disability or in the case of a minor, 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.
  • Privilege is waived by a person bringing charges against a licensed professional counselor for breach of privileged communication, or any other charges. Miss. Code. Ann.§ 73-30-17.
  • 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)
    • “[O]therwise required by law” includes provision for release of records pursuant to a Subpoena under interpretation by the Court.  Johnston v Gallatin County Sheriff's Office, No. DV 14-634A, 2015 WL 13620441, at *1 (Mont.Dist. Nov. 23, 2015)
  • 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) without the consent of the victim 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 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)

There is no privilege if:

  • 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 in violation of Nev. Rev. Stat. §§ 200.508 or 200.5093, 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.
  • Parent could not waive child’s victim-counselor privilege when parent had interest adverse to the child. State v. C.E.L., No. A-5783-13T1, 2018 WL 4167729, at *21 (N.J. Super. Ct. App. Div. Aug. 31, 2018)
  • 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; NJ R EVID N.J.R.E. 530

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. N.M. Stat. § 31-25-3.
  • 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 counselor without the consent of the victim or a minor or incapacitated victim without the consent of the victim’s custodial 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 afforded by the Victim Counselor Confidentiality Act by testifying in court about the crime, however, if a victim partially discloses the contents of a confidential communication while testifying, either party may request the court rule that justice requires the protections 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. 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 “District attorney's 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, domestic violence advocate or victim shall not be required to disclose a communication made by a victim or advice given by the rape crisis counselor or domestic violence advocate in the course of the counselor’s services. N.Y. CPLR § 4510(b)
  • A rape crisis counselor, domestic violence advocate or victim shall not be required to disclose any records made in the course of the services given to the client. N.Y. CPLR § 4510(b)
  • Persons working for a rape crisis counselor or domestic violence advocate or for the same program as the rape crisis counselor or domestic violence advocate (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. N.Y. CPLR § 4510(b)
  • Persons working for a rape crisis counselor or domestic violence advocate or for the same program as the rape crisis counselor or domestic violence advocate (e.g., clerk, stenographer, etc.) shall not be allowed to disclose any records made in the course of the services given to the client. N.Y. CPLR § 4510(b)

Holder of Privilege:

  • Only the victim, the personal representative of a deceased victim, or the conservator of an incompetent victim may waive the privilege by providing the rape crisis counselor or domestic violence advocate with informed, written and reasonably time-limited consent. 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)-(4)

  • With respect to a rape crisis counselor or domestic violence advocate, the victim authorizes disclosure, reveals the intent to commit a crime or harmful act in the course of counseling or institutes charges against the rape crisis counselor or rape crisis program for malpractice which concern the confidential communications.
  • With respect to a domestic violence advocate, the victim reveals a case of suspected child abuse or maltreatment.

Case Law Exception:

  • Although there are no cases discussing the rape crisis counselor or domestic violence advocate 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; N.Y. Crim. Proc. § 60.76; N.Y. Exec § 108

North Carolina
  • 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. N.C. Gen. Stat. § 8-53.12(b)
  • Does not apply when the victim waives the privilege conferred. N.C. Gen. Stat. § 8-53.12(b)
  • Privilege terminates upon the death of the victim.  N.C. Gen. Stat. § 8-53.12(b)

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 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 domestic violence or sexual assault 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)

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 domestic violence or sexual assault program, or for the safety of an employee, agent, volunteer, or client of a domestic violence or 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)
  • Court ordered disclosure (see below). N.D. Cent. Code § 14-07.1-18(2)(c)
  • An agent, employee, or volunteer working with a domestic violence or sexual assault program 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, 14-07.1-01, 44-04-17.1

Ohio

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

N/A

N/A

Ohio Rev. Code. Ann. § 2317.02, 4732.19

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 address of any domestic violence shelter 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 board members, 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 written policies and procedures for keeping victim information confidential.  Okla. Admin. Code § 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.  The sexual assault program must have written policies and procedures to protect the record against loss, theft, defacement, tampering, or unauthorized access or use. 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;
    • Inform the participant that consent can be withdrawn at any time, orally or in writing;
    • Programs may only share the specific information the client allows in the release;
    • Even when a court mandate requires the program to disclose or release information about the client, the program may only share the minimum information necessary to meet the statutory or court mandate; and 
    • The program/agency shall notify the victim of any disclosure and continue taking steps to protect the victim’s safety and privacy. Okla. Admin. Code § 75:15-5-4.1(a)

The case records, case files, or case notes 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; 75:15-13-25
Oregon

A victim has a privilege to refuse to disclose and to prevent any other person from disclosing:

  • Confidential communications made by the victim to a certified advocate in the course of safety planning, counseling, support or advocacy services.
  • Records that are created or maintained in the course of providing services regarding the victim. Or. Rev. Stat. § 40.264
  • The victim holds the privilege. Or. Rev. Stat. § 40.264
  • A certified advocate or a qualified victim services program may not disclose confidential communications with a victim or records created in the course of providing services regarding the victim without the written, informed consent of the victim that is reasonably limited in duration. Or. Rev. Stat. § 147.600
  • The privilege is not waived by disclosure of the communications by the certified advocate to another person if the disclosure is reasonably necessary to accomplish the purpose for which the certified advocate is consulted. Or. Rev. Stat. § 40.264
  • A certified advocate or qualified victim services program may disclose confidential communications or records without the victim’s consent only to the extent necessary for defense in any civil, criminal or administration action that is brought against the certified advocate or qualified victim services program by or on behalf of the victim, or as otherwise required by law. Or. Rev. Stat. § 147.600
  • The disclosure of aggregate, nonpersonally identifying data is not prohibited. Or. Rev. Stat. § 147.600

Or. Rev. Stat. §§ 40.264, 147.600, 409.273

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. Ann. § 5945.1(b)(1); But see also, Commonwealth v. Davis, 674 A.2d 214, 216 (Pa. 1996) (holding that the victim waived the applicable privilege when he and his family gave the prosecution access to the confidential information)
  • A domestic violence counselor/advocate may not disclose the victim’s confidential communications made to or by the counselor/advocate by or to the victim.
  • Also includes an interpreter or coparticipant who is present during counseling. 42 Pa. Cons. Stat. Ann. § 5945.1(b) and 23 Pa. Cons. Stat. Ann. § 6116
  • The privilege created by the statute governing confidential communications with sexual assault counselors is an absolute privilege, which is not overcome even by the constitutional rights of a criminal defendant. See Commonwealth v. Segarra, 228 A.3d 943 (Pa. 2020)

Holder of Privilege:

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

Waiver of Privilege:

  • Consent to disclosure must be in writing.  42 Pa. Cons. Stat. Ann. § 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. Ann. § 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. Ann. § 5945.1, 23 Pa. Cons. Stat. Ann. §§ 6116 and 6311

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).
  • 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).
  • 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).
  • 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.

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

In order to receive state funding, sexual assault and domestic violence shelters, services, and programs are required to keep communications with victims confidential. All state-funded domestic violence or sexual assault shelters or service programs are required by law to keep confidential the following: the identity, location, records, and information pertaining to any person to whom services are or were provided. S.D. Codified Laws § 25-10-28. 

As for crisis counselors themselves, South Dakota only affords statutory privileges to communications between victims and specified licensed professionals. Communications between a sexual assault victim and a licensed certified social worker, social worker, social work associate, licensed professional counselor, or licensed professional counselor - mental health (each, a “Licensed Professional”) are privileged. S.D. Codified Laws § 36-26-30 (social workers) and § 36-32-78 (professional counselors). This privilege extends to the social worker’s/counselor’s employees and associates.  

Communications with a “clergyman” are also privileged, a category that the law defines to include any minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him. The general rule of the privilege is that a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser. S.D. Codified Laws § 19-19-505. 

Similarly, communications between a patient and a “physician” or “psychotherapist” are privileged, and a “psychotherapist” includes a person authorized to practice medicine in any state or nation (or reasonably believed by the patient to be so) while engaged in the diagnosis or treatment of a mental or emotional condition, or a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.  S.D. Codified Laws § 19-19-503(a)(3). This privilege entitles the patient to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction, among himself, physician, or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family. S.D. Codified Laws § 19-19-503(b).

With respect to communications with a Licensed Professional, the person receiving treatment from a Licensed Professional, consulting the licensee in a professional capacity, holds the privilege. The person receiving treatment may waive the privilege by providing his/her written consent.  S.D. Codified Laws § 36-26-30 and § 36-32-78.

With respect to communications with a clergyman, the privilege may be claimed by the person making the communication to the clergyman, by his or her guardian or conservator, or by his or her personal representative if he or she is deceased.  The clergyman may also claim the privilege on behalf of the communicant. S.D. Codified Laws § 19-19-505.

The physician/psychotherapist privilege may be claimed by the patient, his/her guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the patient. S.D. Codified Laws § 19-19-503(c). The privilege can be waived if the patient files a lawsuit placing his/her medical condition at issue. Sacred Heart Health Servs. v. Midwest Med. Ins. Co., No. 4:20-CV-04149-LLP, 2021 WL 2118321, at *3 D.S.D. Feb. 23, 2021) (citing S.D. Codified Laws § 19-19-503). 

Communications with Licensed Professionals are not privileged under the following circumstances:

  • If mandated by state law or authorized under the Health Insurance Portability and Accountability Act of 1996, as amended to January 1, 2020 (exception applies to licensed professional counselors);
  • If written consent is obtained from the person or, in the case of death or disability, the person’s personal representative, other person authorized to sue, or the beneficiary of an insurance policy on the person’s life, health, or physical condition (exception applies to both licensed professional counselors and social workers);
  • If the communication reveals the contemplation of a crime or harmful act (exception applies to social workers);
  • If the information is necessary to prevent or mitigate a serious and imminent threat to the health or safety of a person or to the public and the disclosure is made to a person reasonably able to prevent or mitigate the threat, including the target of the threat (exception applies to both licensed professional counselors and social workers);
  • If the person is a minor and the information indicates that the minor was a victim or subject of a crime, then the licensed social worker or counselor may be required to testify in any examination, trial, or other proceeding in which the commission of such a crime is the subject of inquiry (exception applies to social workers);
  • If the person waives the privilege by bringing charges against the social worker or professional counselor (exception applies to both licensed professional counselors and social workers);
  • If the licensed professional counselor or professional counselor--mental health is a party defendant to a civil, criminal, or disciplinary action arising from the counselor's professional capacity, in which case any waiver of the privilege is limited to that action (exception applies to licensed professional counselors); or
  • If the client is a defendant in a criminal proceeding and the use of the privilege would violate the defendant’s right to a compulsory process or right to present testimony and evidence (exception applies to both licensed professional counselors and social workers).

S.D. Codified Laws § 36-26-30 and § 36-32-78.

Under the general physician/psychotherapist privilege, the following exceptions apply:

(1) Proceedings for hospitalization. There is no privilege for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

(3) Discovery. The privilege as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient is waived at trial or for the purpose of discovery under chapter 15-6 in any proceeding in which the condition is an element of the patient’s claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of a claim or defense.

S.D. Codified Laws § 19-19-503(d).

Additionally, the privileges covering communications with licensed social workers and physicians/psychotherapists are expressly prohibited from being claimed in any judicial proceeding involving an alleged abuse or neglected child or resulting from the giving or causing the giving of any such report concerning abuse or neglect of a child. S.D. Codified Laws § 26-8A-15.

S.D. Codified Laws § 25-10-28

S.D. Codified Laws § 36-26-30

S.D. Codified Laws § 36-32-78

S.D. Codified Laws § 19-19-503

S.D. Codified Laws § 19-19-505

S.D. Codified Laws § 19-19-508.1

S.D. Codified Laws § 26-8A-8

S.D. Codified Laws § 26-8A-15

Tennessee

Tennessee law recognizes several relevant privileges.

Crisis intervention communications: Subject to the exceptions noted in the statute (and set forth below), no person, whether a team member, team leader or group participant, providing or participating in a crisis intervention shall be required to testify or divulge any information obtained solely through such crisis intervention. Tenn. Code § 24-1-204(c). All communications between a team member or team leader providing, and a group participant or person participating in, a crisis intervention shall be considered confidential and no such person shall be required to disclose any such communication unless otherwise required by law or rule of court. Tenn. Code § 24-1-204(b).

Psychiatrist-patient: Communications between a patient and a licensed physician when practicing as a psychiatrist in the course of and in connection with a therapeutic counseling relationship (regardless of whether the therapy is individual, joint, or group) are privileged in proceedings before judicial and quasi-judicial tribunals. Subject to the exceptions noted in the statute (and set forth below), neither the psychiatrist nor any member of the staff may testify or be compelled to testify as to such communications or otherwise reveal them in such proceedings without consent of the patient. Tenn. Code § 24-1-207(a).

Licensed psychologists/psychological examiners or certified psychological assistants: The confidential relations and communications between licensed psychologist or psychological examiner or senior psychological examiner or certified psychological assistant and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed. Tenn. Code § 63-11-213.

Licensed marital and family therapist, licensed professional counselor, and certified clinical pastoral therapist: The confidential relations and communications between licensed marital and family therapists, licensed professional counselors or certified clinical pastoral therapists and clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this part of the Tennessee Code shall be construed to require any such privileged communication to be disclosed. However, nothing contained within this section of the Tennessee Code shall be construed to prevent disclosures of confidential communications in proceedings arising under title 37, chapter 1, part 4 concerning mandatory child abuse reports. Tenn. Code § 63-22-114.

Licensed social worker: The confidential relations and communications between a client and licensed social worker as defined in this chapter of the Tennessee Code, are placed upon the same basis as those provided by law between licensed psychologists, licensed psychological examiners, licensed senior psychological examiners, certified psychological assistants and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed. However, this shall not be construed to prevent disclosure of confidential communications in proceedings arising under title 37, chapter 1, part 4, concerning mandatory child abuse reports. Tenn. Code § 63-23-109(a), (b).

In addition, there are confidentiality provisions, including one specifying that the records of domestic violence shelters, human trafficking service providers, and rape crisis centers must be kept confidential by the shelters, providers, and centers (“Support Centers”). Tenn. Code § 36-3-623.

Holder of Privilege:

  • Psychiatrist-patient: The patient holds the privilege. See Long v. Coopertown, No. 3:09–cv–00900, 2011 WL 253173, at *3 (M.D. Tenn. Jan. 25, 2011).
  • Support Centers (confidentiality): The individual to whom the confidential records pertain holds the right. Tenn. Code § 36-3-623(a)(1).

Waiver of Privilege:

  • Psychiatrist-patient: The patient can waive the psychotherapist-patient privilege, including by placing his/her mental health at issue in a case. See Long v. Coopertown, No. 3:09–cv–00900, 2011 WL 253173, at *3 (M.D. Tenn. Jan. 25, 2011).
  • Licensed psychologists/psychological examiners or certified psychological assistants: The psychologist-patient privilege (Tenn. Code § 63-11-213) is not absolute and may be waived by the patient. Bottorff v. Bottorff, No. M201900676COAR3CV, 2020 WL 2764414, at *9 (Tenn. Ct. App. May 27, 2020). The Bottorff court explained that “if the patient ‘divulges the communications he seeks to protect, then he has waived’ the privilege.’” Id. (citations omitted).
  • Support Centers (confidentiality): The individual to whom the records pertain may authorize their release. Tenn. Code § 36-3-623(a)(1). Also, each shelter program is required to have its own written policy specifying the procedure for releasing a program participant’s information, but in all cases (except the exceptions listed below) prior written consent from the program participant is required. Tenn. Comp. R. & Regs. 0620-03-06-.07(5)(a).
  • Crisis intervention communications: The testimonial privilege described in Tenn. Code § 24-1-204(c) shall not apply if (1) the communication indicates the existence of a danger to the individual who receives crisis response services or to any other person or persons; (2) the communication indicates the existence of past or present child abuse or neglect of the individual, abuse of an adult as defined in title 71, chapter 6 or family violence as defined in title 71, chapter 6, part 2; (3) the communication indicates the existence of past or present acts constituting an intentional tort or crime; provided, that the applicable statute of limitation has not expired on the act indicated; or (4) all parties involved in the crisis intervention, including the individual or individuals who received crisis response services, expressly waive the privilege and consent to the testimony. Tenn. Code § 24-1-204(d).
  • Psychiatrist-patient: The privilege does not apply in proceedings (1) in which the patient raises the issue of the patient’s mental or emotional condition; (2) for which the psychiatrist was ordered by the tribunal to examine the patient if the patient was advised that communications to the psychiatrist would not be privileged, but testimony as to the communications is admissible only on issues involving the patient’s mental or emotional condition; and (3) to involuntarily hospitalize the patient in accordance with statute, if the psychiatrist decides that the patient is in need of care and treatment in a residential facility. Unless otherwise ordered by the court, the exception is limited to disclosures necessary to establish that the patient poses a substantial likelihood of serious harm requiring involuntary hospitalization. Tenn. Code § 24-1-207(a)(1)-(3).

Additionally, privileged communications between a patient and a licensed physician when practicing as a psychiatrist in the course of and in connection with a therapeutic counseling relationship, regardless of whether the therapy is individual, joint, or group, may be disclosed without consent of the patient if: (A) the patient has made an actual threat to physically harm an identifiable victim or victims; and (B) the treating psychiatrist makes a clinical judgment that the patient has the apparent capability to commit such an act and that it is more likely than not that in the near future the patient will carry out the threat. The psychiatrist may disclose patient communications to the extent necessary to warn or protect any potential victim. No civil or criminal action shall be instituted, nor shall liability be imposed due to the disclosure of otherwise confidential communications by a psychiatrist pursuant to this subsection. Tenn. Code § 24-1-207(c).

Finally, a separate statute expressly provides that the psychiatrist-patient privilege is not a ground for excluding evidence regarding harm or the cause of harm to a child in any dependency and neglect proceeding resulting from a report of such harm under § 37-1-403 or a criminal prosecution for severe child abuse. Tenn. Code § 37-1-411.

  • Licensed psychologists/psychological examiners or certified psychological assistants: A separate statute expressly provides that the psychologist-patient privilege is not a ground for excluding evidence regarding harm or the cause of harm to a child in any dependency and neglect proceeding resulting from a report of such harm under § 37-1-403 or a criminal prosecution for severe child abuse. Tenn. Code § 37-1-411. Note also that “the psychologist-patient privilege ‘is not designed to specifically protect [a] psychotherapist’s own opinion, observations, diagnosis, or treatment alternatives, particularly when such information finds its way beyond [a] patient's personal file.’” Bottorff v. Bottorff, No. M201900676COAR3CV, 2020 WL 2764414, at *9 (Tenn. Ct. App. May 27, 2020) (citations omitted).
  • Licensed marital and family therapist, licensed professional counselor, and certified clinical pastoral therapist: Nothing contained within this statute shall be construed to prevent disclosures of confidential communications in proceedings arising under title 37, chapter 1, part 4 concerning mandatory child abuse reports. Tenn. Code § 63-22-114.
  • Licensed social workers: Nothing contained in the statute shall be construed to prevent disclosure of confidential communications in proceedings arising under title 37, chapter 1, part 4, concerning mandatory child abuse reports. Tenn. Code § 63-23-109(b).
  • Support Centers (confidentiality): The records of domestic violence shelters, rape crisis centers, and human trafficking service providers may be disclosed if a court approves a subpoena for the records, subject to such restrictions as the court may impose. Tenn. Code § 36-3-623(a)(2).

Information about a program participant can be disclosed without prior written consent under four conditions:

  1. Disclosure for medical emergency;
  2. Disclosure to legal guardian of a program participant who has been legally declared incompetent;
  3. Disclosure for reporting of child abuse or adult abuse; and
  4. Disclosure required by subpoena or for monitoring and auditing purposes.

            Tenn. Comp. R. & Regs. 0620-03-06-.07(5)(b).

Tenn. Code § 24-1-204 

Tenn. Code § 24-1-207 

Tenn. Code § 37-1-411 

Tenn. Code § 36-3-623 

Tenn. Code § 63-23-109 

Tenn. Code § 63-22-114 

Tenn. Code § 37-1-605 

Tenn. Code § 36-3-601 

Tenn. Code § 37-1-403 

Tenn. Code § 10-7-504 

Tenn. Code § 37-1-409 

Tenn. Comp. R. & Regs. 0620-03-06-.07

Texas
  • A communication (oral or written) between an advocate and a survivor that is made in the course of advising, counseling, or assisting the survivor is confidential and may not be disclosed except as expressly provided by the Texas Code (which exceptions are described below). Tex. Gov’t Code § 420.071(a).
  • Any record created by, provided to, or maintained by an advocate is confidential if the record relates to the services provided to a survivor or contains the identity, personal history, or background information of a survivor, or information concerning the victimization of the survivor, and the confidential record(s) may not be disclosed except as expressly provided by the Texas code (which exceptions are described below). Tex. Gov’t Code § 420.071(b).
  • In any civil, criminal, administrative, or legislative proceeding, a survivor has a privilege to refuse to disclose and to prevent another from disclosing for any purpose, a communication or record that is confidential. Tex. Gov’t Code § 420.071(c).
  • The unauthorized disclosure of a portion of a confidential communication or record does not constitute a waiver of the privilege; a court or administrative hearing officer may determine that the privilege has been waived only if (1) the disclosed portion is relevant to a disputed matter, and (2) the waiver is necessary for a witness to respond to questioning concerning the disclosed portion.  Tex. Gov’t Code § 420.071(c-1).
  • 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 disclosure of a communication, record, or evidence that is confidential (as described above) in 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, an attorney ad litem, guardian ad litem or other legal agent appointed for the survivor, or a personal representative of a deceased survivor, holds the privilege. Tex. Gov’t Code § 420.072(a)(2); § 420.073(a).

Waiver of Privilege:

Consent For the Release of Certain Confidential Information (Other Than Evidence Contained in an Evidence Collection Kit) (Tex. Gov’t Code § 420.073)

  • Consent for the release of confidential information (other than evidence contained in an evidence collection kit) must be in writing and signed by the survivor (or one of the above holders of the privilege), and must specify:
    • The information or records covered by the release;
    • The reason or purpose for the release;
    • The person to whom the information is to be released; and
    • A reasonable time limitation during which the information or records may be released. Tex. Gov’t Code § 420.073(a)
  • 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. However, any information already disclosed before the written notice of withdrawal was received will not be affected by the withdrawal. Tex. Gov’t Code § 420.073(b).

Consent For the Release of Evidence Contained in an Evidence Collection Kit (Tex. Gov’t Code § 420.0735)

  • Consent for the release of evidence contained in an evidence collection kit must be in writing and signed by:
    • The survivor, if the survivor is 14 years old or older (even if the survivor is an adult survivor with a guardian that has been appointed, irrespective of whether the guardian signs the release); if the adult survivor with an appointed guardian agrees to the release but is unable to provide a signature and the guardian, guardian ad litem, or other legal agent is unavailable or declines to sign the release, then the investigating law enforcement officer may sign the release);
    • The survivor’s parent or guardian or an employee of the Department of Family and Protective Services, if the survivor is younger than 14 years old; or
    • The survivor’s personal representative, if the survivor is deceased. Tex. Gov’t Code § 420.0735(a).
  • The written consent must specify:
    • The evidence covered by the release;
    • The reason or purpose for the release; and
    • The person to whom the evidence is to be released. Tex. Gov’t Code § 420.0735(d).
  • 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. However, any information already disclosed before the written notice of withdrawal was received will not be affected by the withdrawal.  Tex. Gov’t Code § 420.0735(e).
  • A confidential communication, record, or evidence may only be disclosed if:
    • The communication or record is relevant to the claims or defense of an advocate or sexual assault program in a proceeding brought by the survivor against the advocate or sexual assault program;
    • The survivor has waived the privilege with respect to the communication or record;
    • The survivor or other appropriate person consents in writing to the disclosure (as provided in Tex. Gov’t Code § 420.073 or 420.0735, summarized in the waiver of privilege section above);
    • An advocate determines that unless the disclosure is made, there is a probability of:
      • imminent physical danger to any person; or
      • immediate mental or emotional injury to the survivor;
    • The disclosure is necessary to comply with the Family Code or Human Resources Code, or for a management audit, financial audit, program evaluation, or research (except that a report of the audit, evaluation, or research may not directly or indirectly identify a survivor);
    • The disclosure is made to an employee or volunteer of the sexual assault program after an advocate or a person under the supervision of a counseling supervisor who is participating in the evaluation or counseling of or the provision of services to the survivor determines the disclosure is necessary to facilitate the provision of services to the survivor; or
    • The communication or record is in the possession, custody, or control of the state and a court, after conducting an in camera review of the communication or record, determines it is exculpatory, provided that the disclosure is limited to the specific portion of the communication or record that was determined to be exculpatory in relation to a defendant in a criminal case.  (Tex. Gov’t Code § 420.072(a)(1)-(7)). 
  • Disclosure is not permitted to a parent or legal guardian of a minor survivor or an adult survivor for whom a guardian is appointed if an advocate or program knows or has reason to believe that the parent or legal guardian is a suspect or accomplice in the sexual assault of the survivor. This is true even if there is written consent by the parent or legal guardian. Tex. Gov’t Code § 420.072(b). 
  • Disclosure in a criminal proceeding is governed by Section 420.074, which outlines the steps to be taken to introduce the privileged communication or record.  No later than the 30th day before a trial, a defendant in a criminal proceeding can make a motion for disclosure of a privileged communication or record, and that motion must include a supporting affidavit showing reasonable grounds to believe the communication or record contains exculpatory evidence. In that process, the court shall review the communication or record under seal and examine it in camera if the court finds by a preponderance of the evidence that: (1) there is a good-faith, specific, and reasonable basis for believing that the privileged communication or record is relevant, material, and exculpatory upon the issue of guilt for this offense charged; and (2) the privileged communication or record would not be duplicative of other evidence.  Tex. Gov’t Code § 420.074. 
  • A professional (defined as an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children) having reasonable cause to believe that a child has been abused or neglected, may be abused or neglected, or is a victim of a crime involving indecency with a child, shall make a report within 48 hours. This reporting requirement applies even to a professional whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, or an employee of a clinic or health care facility that provides reproductive services. The identity of the reporting individual is confidential unless waived by the person making the report and disclosed only in limited circumstances. Tex. Fam. Code § 261.101.

Tex. Gov’t Code § 420.003

Tex. Gov’t Code § 420.011

Tex. Gov’t Code § 420.051

Tex. Gov’t Code § 420.071

Tex. Gov’t Code §420.072

Tex. Gov’t Code § 420.073

Tex. Gov’t Code § 420.074

Tex. Gov’t Code § 420.075

Tex. Gov’t Code § 420.0735

Tex. Fam. Code § 261.101

Tex. Fam. Code § 261.201

1 Tex. Admin. Code §§ 62.50-57

Texas C.C.P. Art. 56.045

Utah

Confidential communications are afforded protection under Utah law. “Confidential communication” means information given to a sexual assault counselor by a victim and includes reports or working papers made in the course of the counseling relationship. Utah Code §§ 77-38-203 & 77-38-204.

Holder of Privilege:

  • The victim holds the privilege, so long as the victim is not a minor. However, while the victim holds the privilege, waiving it requires input from the sexual assault counselor (see waiver of privilege below).
  • When the victim is a minor, the counselor may disclose confidential communications to the victim’s parents or guardians if the counselor believes it is in the best interest of the victim (see exceptions to the privilege below).
  • For a victim that is a minor, the victim’s parents or guardians hold the privilege and can consent to disclosure of a confidential communication to a third party based on representations made by the counselor that it is in the best interest of the minor victim to make such disclosure (again, while the victim’s parents or guardians hold the privilege, waiving it requires input from the sexual assault counselor) (see waiver of privilege below).

Waiver of Privilege:

  • There are three requirements before a victim herself or himself may waive the privilege: (1) the victim must be an adult; (2) the victim must give consent; and (3) the sexual assault counselor must believe the disclosure is necessary to accomplish the desired result of counseling. Utah Code § 77-38-204(3).
  • When the victim is a minor, and the counselor believes it is in the best interest of the victim to disclose the confidential communication to the victim’s parents, the counselor can make that information available to the parents. Utah Code § 77-38-204(1).
  • When the victim is a minor, the parents or guardian of the victim may waive the privilege and consent to disclosure, but only if the sexual assault counselor has made representations that it is in the best interest of the victim to disclose the confidential communication. Utah Code § 77-38-204(2).
  • When the counselor has an obligation under Title 80, Chapter 2, Child Welfare Services, or Title 80, Chapter 2a, Removal and Protective Custody of a Child, to report information transmitted in the confidential communication. Utah Code § 77-38-204(4).

The confidential communication between a victim and a sexual assault counselor is available to a third person only when:

  • the victim is a minor and the counselor believes it is in the best interest of the victim to disclose the confidential communication to the victim’s parents or guardian;
  • the victim is a minor and the minor’s parents or guardian have consented to disclosure of the confidential communication to a third party based upon representations made by the counselor that it is in the best interest of the minor victim to make such disclosure;
  • the victim is not a minor, has given consent, and the counselor believes the disclosure is necessary to accomplish the desired result of counseling; or
  • the counselor has an obligation under Title 62A, Chapter 4a, Child and Family Services, to report information transmitted in the confidential communication (see below).

Utah Code § 77-38-204(1)-(4).

If the victim is a minor and the sexual assault counselor has reason to believe that the victim is being or has been subjected to abuse or neglect, or observes that the victim is being subjected to circumstances which would reasonably result in abuse or neglect, the counselor must immediately notify the nearest peace officer or law enforcement agency. This requirement does not apply to a member of the clergy with regard to any confession made directly to him/her while functioning in his/her ministerial capacity if the member of the clergy is, under canon law or church doctrine or practice, bound to maintain the confidentiality of the confession, but if the member of the clergy received the information from a source other than confession that member is required to report that information.  The reporting requirement also does not apply to an attorney or an individual employed by the attorney, gained from the representation of the client, unless the attorney is permitted to reveal the abuse or neglect to prevent reasonably certain death or substantial bodily harm.  Utah Code § 77-38-204(4) and § 80-2-602.

Utah Code § 77-38-201

Utah Code § 77-38-203

Utah Code § 77-38-204

Utah Code § 62A-4a-403

Utah Code § § 53B-28-201 

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. 12 V.S.A. § 1614(b).

Separately, the “Patient’s Privilege” statute provides that, unless the patient waives the privilege or unless the privilege is waived by an express provision of law, medical professionals including a person authorized to practice medicine, a registered professional or licensed practical nurse, or a mental health professional as defined in 18 V.S.A. § 7101(13) shall not be allowed to disclose any information acquired in attending a patient in a professional capacity, including joint or group counseling sessions, and which was necessary to enable the provider to act in that capacity. 12 V.S.A. § 1612(a).

Under the Vermont Rules of Evidence, a patient has a privilege to refuse to disclose and to prevent any other person, including a person present to further the interest of the patient in the consultation, examination or interview, from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, dental, or emotional condition, including alcohol or drug addiction, among himself, his physician, dentist, nurse, or mental health professional, and persons who are participating in diagnosis or treatment under the direction of a physician, dentist, nurse, or mental health professional, including members of the patient's family. Vt. R. Evid. 503(b).

Holder of Privilege:

  • 12 V.S.A. § 1614(b): The victim holds the privilege. Both the victim and the crisis worker may claim the privilege, but the crisis worker may only claim the privilege on behalf of the victim.
  • Vt. R. Evid. 503(c): The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician, dentist, nurse, or mental health professional at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

Waiver of Privilege:

  • 12 V.S.A. § 1614: No procedure specified.
  • 12 V.S.A. § 1612(a): The privilege applies “unless the patient waives the privilege or unless the privilege is waived by an express provision of law.” See “Exceptions to the Privilege,” discussed below.
  • In Rose v. Vermont Mut. Ins. Co., 2007 WL 3333394 (D. Vt. Nov. 8, 2007), a federal district court analyzing 12 V.S.A. § 1612 and Vt. R. Evid. 503 took a broad view of waiver with respect to the psychotherapist-patient privilege, holding that the plaintiff had waived the privilege by bringing a personal injury action and claiming damages for lost income, lost earning capacity, activity impairment, and emotional distress.

12 V.S.A. § 1614(a)(2): A communication is confidential only if it was not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendering of services to the victim or those reasonably necessary for the transmission of the communication. The person to whom the communication was made may also be subject to mandatory reporting requirements (see below), which under Vermont law automatically override most privileges and confidentiality rights.

12 V.S.A. § 1612: There are several exceptions to the privileges afforded under the statute:

  • Identification by dentist; crime committed against patient under 16. A dentist shall be required to disclose information necessary for identification of a patient. A physician, dentist, chiropractor, or nurse shall be required to disclose information indicating that a patient who is under the age of 16 years has been the victim of a crime.
  • Mental or physical condition of deceased patient.
    • A physician, chiropractor, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under the statute, except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived: (a) by the personal representative, or the surviving spouse, or the next of kin of the decedent; or (b) in any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or (c) if the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.
    • A physician, dentist, chiropractor, mental health professional, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subsection (a) of this section upon request to the Chief Medical Examiner.

Vt. R. Evid. 503: There are several exceptions to the privileges afforded under the rule:

  • Mental Health Proceedings. There is no privilege under this rule in proceedings under that part of Title 18 of Vermont Statutes Annotated on mental health for any communications to or from a mental health professional while he is attending the patient.
  • Examination by Order of Court. If the court orders an examination of the physical, mental, or emotional condition of a patient whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise or unless the state seeks to admit communications obtained in an examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.
  • Condition an Element of Claim or Defense. Communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, unless the state seeks to admit information obtained in the examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.
  • Dental Identification. Information acquired by a dentist that is necessary for the identification of a patient.
  • Victims of Crime Under the Age of 16. Information indicating that a patient who is under the age of 16 years has been the victim of a crime.
  • Required Reports. Reports of a patient's medical condition required to be made by statute.
  • Risk of Harm to a Child. In any proceeding under Rules 4.0-4.3 of the Vermont Rules for Family Proceedings to determine parental rights or responsibilities or parent-child contact, and in any proceeding under Chapter 55 of Title 33, Vermont Statutes Annotated, there is no privilege under this rule if the court, after hearing, finds on the basis of evidence other than that sought to be obtained, that: (1) in any such case lack of disclosure of the communication would pose a risk of harm to the child as defined in 33 V.S.A. § 4912, or in a proceeding to terminate parental rights the communication would be relevant under 33 V.S.A. § 5540(3); (2) the probative value of the communication outweighs the potential harm to the patient; and (3) the evidence sought is not reasonably available by any other means.

12 V.S.A. § 1612

12 V.S.A. § 1614

33 V.S.A. § 4913

33 V.S.A. § 4914

Vt. R. Evid. 503

Virgin Islands

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

N/A

N/A

N/A

Virginia

Confidentiality between programs and individuals providing services to victims of sexual assault or domestic violence and victims

  • In order to ensure the safety of adult and child victims (and their families) of domestic violence, dating violence, sexual assault, or stalking, or victims of abduction with intent to extort money or for immoral purposes, prostitution, human trafficking, or commercial sex trafficking, programs and individuals providing services to such victims must protect the confidentiality and privacy of persons receiving services. Va. Code § 63.2-104.1(A)
  • Programs and individuals providing services to victims may not disclose any personally identifying information or individual information collected in connection with services requested, utilized, or denied  through programs for victims of domestic violence, dating violence, sexual assault, stalking, abduction with intent to extort money or for immoral purposes, prostitution, human trafficking, or commercial sex trafficking, or reveal individual client information. Code § 63.2-104.1 (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; provided that waiver may not be given by a person that is the abuser or alleged abuser of the minor or incapacitated person, or the abuser or alleged 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)

  • Sexual assault programs and individuals providing services to victims of domestic violence, dating violence, sexual assault, or stalking, or victims of abduction with intent to extort money or for immoral purposes, prostitution, human trafficking, or commercial sex trafficking may share:
    • nonpersonally identifying aggregate data regarding services to their clients and nonpersonally identifying demographic information, in order to comply with federal, state, tribal, or territorial reporting, evaluation, or data collection requirements;
    • court- and law enforcement-generated information contained in secure governmental registries for protection order enforcement purposes; and
    • 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.
  • Patient-counselor privilege.  Virginia law providing that programs and individuals providing services to victims of sexual assault shall protect the confidentiality and privacy of persons receiving services did not create a patient-counselor privilege that protected a university student's communications with a university official, who was head of the university's sexual misconduct board, and the university, concerning the student's alleged gang rape at a fraternity house.  Eramo v. Rolling Stone LLC, 2016, 314 F.R.D. 205.  But further case law suggests that (i) the court in Eramo did not find that no patient-counselor privilege existed, but rather that it was waived through the voluntary disclosure of information, and (ii) communications between sexual assault victims and their advocates are privileged because they promote sufficiently important interests that outweigh the need for probative evidence, but the privilege can be overcome if a court determines that the theoretical relevance of the communications outweighs the public policy in favor of keeping them confidential. Doe v. Old Dominion University, 2018, 289 F.Supp.3d 744.

Va. Code § 63.2-104.1

Washington

Confidentiality between victim and sexual assault advocate.

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, 1219-20 (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)

  • A sexual assault advocate may disclose a confidential communication without the consent of the victim 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 and/or the failure to produce such records would impair the defendant's right of confrontation; 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, even if intended to cross-examine or impeach the victim.
  • State v. Ahlfinger, 749 P.2d 190, 194-95 (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 § 5.60.060(8)
  • Wash. Rev. Code § 70.125.030
  • Wash. Rev. Code § 70.125.065
West Virginia

Confidentiality between domestic violence program/shelter and victim

  • No program licensed pursuant to the West Virginia 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 program participant whose information is being disclosed, 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 to abate any abuse or neglect of the child or over an incapacitated adult to abate any abuse, neglect or financial exploitation of the incapacitated adult.
  • Mandatory reporting of abuse or neglect of a child of or abuse, neglect, or financial exploritation of an incapacitated adult, or in an action to abate an emergency situation requiring immediate remedial treatment.
  • Upon a court order, if the court determines that the privileged information is sufficiently relevant to the proceeding to outweigh the importance of maintaining the confidentiality of the records.
  • To protect against a clear and substantial danger of imminent injury by a person receiving services to himself or herself or another.

Va. Code § 48-26-701(g)

  • A program will not be prohibited from reporting suspected abuse or neglect when the program is mandated by law to report suspected abuse or neglect. W. Va. Code § 48-26-701(g)

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

Wisconsin

Confidentiality between victim and domestic violence/ sexual assault advocate

  • 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 a victim advocate, and persons who are participating in providing counseling, assistance, or support services under a victim 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. 
  • A victim advocate’s authority to claim the privilege (on behalf of the victim) is presumed in the absence of evidence to the contrary. 

Waiver of Privilege: Privilege may be waived by any person that holds the privilege against disclosure if the person or his or her predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. Wis. Stat. § 905.11

The privilege does not apply to the following:

  • Mandatory reporting of child abuse or neglect by a victim advocate to the extent the victim advocate has reasonable cause to suspect that a child seen by the advocate in the course of professional duties has been abused or neglected or has reason to believe that a child seen by the advocate in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur.  Wis. Stat. § 905.045(4); Wis. Stat. § 48.981(2)
  • Mandatory reporting of a threat of violence in or targeted at a school if a victim advocate believes in good faith, based on a threat made by an individual seen in the course of professional duties, that there is a serious and imminent threat to the health or safety of a student or school employee or the public.  Wis. Stat. § 905.045(4); Wis. Stat. § 175.32

Wis. Stat. § 48.981(2)
Wis. Stat. § 175.32
Wis. Stat. §, 905.04(2)
Wis. Stat. §  905.045
Wis. Stat. §  905.11

Wyoming

Confidentiality between victim and family violence/sexual assault advocate

  • 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 by express consent or by voluntarily testifying.  Wyo. Stat. § 1-12-116(b)(i)(A)(I)
  • Consent to disclosure must be express (provided that if the victim voluntarily testifies, the advocate may testify regarding the same subject matter without express consent).  Wyo. Stat. § 1-12-116(b)(i)(A)(I)
  • In a situation otherwise covered by the privilege described herein, an advocate: (a) may testify (i) with the express consent of the victim, or (ii) if the victim voluntarily testifies, provided the advocate’s testimony is limited to the same subject matter, and (b) may be compelled to testify if the victim is unable to testify due to death or incompetence. Wyo. Stat. § 1-12-116(b)(i)
  • Any person who knows or has reasonable cause to believe or suspect that a child has been abused or neglected or who observes any child being subjected to conditions or circumstances that would reasonably result in abuse or neglect, shall immediately report it to the child protective agency or local law enforcement agency or cause a report to be made, and the privilege described herein will not apply to such communications. Wyo. Stat. § 1-12-116(b); Wyo. Stat. § 14-3-205(a); Wyo. Stat. § 14-3-210

Wyo. Stat. § 1-12-116
Wyo. Stat. § 14-3-205(a)
Wyo. Stat. § 14-3-210




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