Laws about Private Communications
Kentucky

Last Updated: December 2017
Question Answer

What relationships qualify for privileged communications and how is "privilege" defined?

  • 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

Is the privilege qualified or absolute?

Qualified by statute and judicial decision.

Who holds the privilege and has the right to waive it? What are the standards for waiver of the privilege? 

Holder of Privilege

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

Waiver of Privilege: No procedure specified.

Are there any exceptions to the privilege?

  • 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)

When and how may a judge review case documents in private?

Provided for by statute: Ky. R. Evid. 506(d)(2)

  • A court may compel disclosure of confidential communication if the judge finds that the following conditions are satisfied after conducting an in camera hearing of the requested information:
    • The substance of the communication is relevant to an essential issue in the case;
    • There are no available alternate means of obtaining the communication or a substantial equivalent; and
    • The need for the information outweighs the interest protected by the privilege.   
  • Brown v. Com., 2008 WL 1850618 (Ky. Apr. 24, 2008)
    • Applies standard that may be relevant to rape crisis communications. 
    • If psychotherapist records of a crucial prosecution witness contain evidence relevant to that witness’ ability to recall, comprehend, and accurately relate the subject matter of testimony, then defendant’s right to compel disclosure of those records must prevail over the psychotherapist-patient privilege. 
    • In connection with such disclosure, certain processes must be followed: only upon a preliminary showing of “evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence” are such records subject to production.  Even then, disclosure is limited to in camera inspection (i.e. private review by the judge) by the trial court to determine whether the records, in fact, contain exculpatory evidence relevant to the witness’ credibility.
  • Covington v. Com. 2006 WL 1650698, (Ky., June 15, 2006)
    • Appellate court affirmed the procedures used by trial court in conducting in camera review of communications between rape victim and counselors
    • Trial court required party seeking to compel disclosure of records to “present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.”
    • Following review, court ordered release of limited set of pages (only those containing potentially exculpatory evidence).

What other definitions are important to know?

Client:   

  • A person who consults or is interviewed or assisted by a counselor for the purpose of obtaining professional or crisis response services.   Ky. R. Evid. 506(a)(2)

Confidential Communication:  

  • Any communication not intended to be disclosed to third persons, except persons present to further the interest of the client in the consultation or interview, persons reasonably necessary for the transmission of the communication, or persons present during the communication at the direction of the counselor, including members of the client’s family.  Ky. R. Evid. 506(a)(3)

Rape Crisis Center:  

  • An organization that provides services that include, but are not limited to, crisis counseling, mental health and related support services, advocacy, consultation, public education, and the provision of training programs for professionals.    Ky. Rev. Stat. § 211.600(3).  
  • Note: this definition is based upon a provision addressing the qualifications for designation of a regional rape crisis center.  Such designation also requires appointment by the Kentucky Cabinet for Health and Family Services.

Sexual Assault Counselor:   

  • A person engaged in a rape crisis center working under the control of a supervisor of a rape crisis center, whose primary purpose is giving advice, counseling, or assistance to victims of sexual assault. Ky. R. Evid. 506(a)(1)(B)

Training Requirements for Sexual Assault Counselors:  

  • 40 hours of training. Ky. R. Evid. 506 (a)(1)(B)

Anything else I should know?

N/A

Statutory citation(s):

  • Ky. R. Evid. 506
  • Ky. Rev. Stat. § 211.608



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