Laws about Private Communications
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)

Confidentiality Between Certain Health-Care Providers and Patients

• Under Wisconsin law, a patient has statutory privilege to refuse to disclose confidential communications made to licensed physicians, psychotherapists, social workers, and counselors. S. v. Schwensow, E.D.Wis.1996, 942 F.Supp. 402.
• A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's naturopathic doctor, the patient's podiatrist, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor. Wis. Stat. Ann. § 905.04(2).

 Husband-wife and domestic partner privilege

 A person has a privilege to prevent the person's spouse or former spouse or domestic partner or former domestic partner from testifying against the person as to any private communication by one to the other made during their marriage or domestic partnership. As used in this section, “domestic partner” means a domestic partner under ch. 770. Wis. Stat. Ann. § 905.05

Communications to clergy

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as a spiritual adviser. Wis. Stat. Ann. § 905.06(2). A “member of the clergy” is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting the individual. Wis. Stat. Ann. § 905.06(1)(a)

Qualified by statute.

Privilege between domestic violence or sexual assault advocate and victim:

• 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. Wis. Stat. § 905.045(3) 
• A victim advocate’s authority to claim the privilege (on behalf of the victim) is presumed in the absence of evidence to the contrary. Wis. Stat. § 905.045(3) 

Privilege between certain health-care providers and patients):

• Privilege may be claimed by the patient, by the patient's guardian or conservator, or by the personal representative of a deceased patient. The person who was the physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor may claim the privilege but only on behalf of the patient. The authority so to do is presumed in the absence of evidence to the contrary. Wis. Stat. § 905.04(3).

Husband-wife and domestic partner privilege

• The privilege may be claimed by the person or by the spouse or domestic partner on the person's behalf. The authority of the spouse or domestic partner to do so is presumed in the absence of evidence to the contrary. Wis. Stat. § 905.05(2)

Communications to clergy

• The privilege may be claimed by the person, by the person's guardian or conservator, or by the person's personal representative if the person is deceased. The member of the clergy may claim the privilege on behalf of the person. The member of the clergy's authority so to do is presumed in the absence of evidence to the contrary. Wis. Stat. § 905.06(3)

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 between domestic violence or sexual assault advocate and victim 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.  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. Stat. § 905.045(4); Wis. Stat. § 175.32.

The patient-healthcare provider privilege under Wis. Stat. § 905.04 does not apply in the following scenarios:

• Proceedings for commitment, guardianship, protective services, or protective placement or for control, care, or treatment of a sexually violent person. There is no privilege under this rule as to communications and information relevant to an issue in probable cause or final proceedings to commit the patient for mental illness under s. 51.20, to appoint a guardian in this state, for court-ordered protective services or protective placement, for review of guardianship, protective services, or protective placement orders, or for control, care, or treatment of a sexually violent person under ch. 980, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of commitment, guardianship, protective services, or protective placement or control, care, and treatment as a sexually violent person. Wis. Stat. § 905.04(4)(a).
• Proceedings for guardianship. There is no privilege under this rule as to information contained in a statement concerning the mental condition of the patient furnished to the court by a physician or psychologist under s. 54.36(1) or s. 880.33(1), 2003 stats. Wis. Stat. § 905.04(4)(am).
• Examination by order of judge. If the judge orders an examination of the physical, mental or emotional condition of the patient, or evaluation of the patient for purposes of guardianship, protective services or protective placement, communications made and treatment records reviewed in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise. Wis. Stat. § 905.04(4)(b).
• Condition an element of claim or defense. There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as 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 the party's claim or defense. Wis. Stat. § 905.04(4)(c).
• Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide. Wis. Stat. § 905.04(4)(d).
• Abused or neglected child or abused unborn child. There is no privilege for information contained in a report of child abuse or neglect that is provided under Wis. Stat. § 48.981(3). Wis. Stat. § 905.04(4)(e).
• There is no privilege in situations where the examination of the expectant mother of an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. Wis. Stat. § 905.04(3).
• School violence. There is no privilege for information contained in a report of a threat of violence in or targeted at a school that is provided under W.S.A. 175.32(3). Wis. Stat. § 905.04(3)(em).
• Tests for intoxication. There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in s. 340.01(1v). Wis. Stat. § 905.04(3)(f).
• Paternity proceedings. There is no privilege concerning testimony about the medical circumstances of a pregnancy or the condition and characteristics of a child in a proceeding to determine the paternity of that child under subch. IX of ch. 767. Wis. Stat. § 905.04(3)(g).
• Reporting wounds and burn injuries. There is no privilege regarding information contained in a report under s. 255.40 pertaining to a patient's name and type of wound or burn injury. Wis. Stat. § 905.04(3)(h).
• Providing services to court in juvenile matters. There is no privilege regarding information obtained by an intake worker or dispositional staff in the provision of services under s. 48.067, 48.069, 938.067 or 938.069. An intake worker or dispositional staff member may disclose information obtained while providing services under s. 48.067 or 48.069 only as provided in s. 48.78 and may disclose information obtained while providing services under s. 938.067 or 938.069 only as provided in s. 938.78. Wis. Stat. § 905.04(3)(i)

Husband-wife and domestic partner privilege does not apply:

• If both spouses or former spouses or domestic partners or former domestic partners are parties to the action.
• In proceedings in which one spouse or former spouse or domestic partner or former domestic partner is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.
• In proceedings in which a spouse or former spouse or domestic partner or former domestic partner is charged with a crime of pandering or prostitution.
• If one spouse or former spouse or domestic partner or former domestic partner has acted as the agent of the other and the private communication relates to matters within the scope of the agency. Wis. Stat. § 905.05(3)

Communications to clergy:

There is no privilege under this section concerning observations or information that a member of the clergy, as defined in Wis. Stat. § 48.981(1)(cx), is required to report as suspected or threatened child abuse under Wis. Stat. § 48.981(2)(bm) or as a threat of violence in or targeted at a school under Wis. Stat. § 175.32. Wis. Stat. § 905.06

Court-ordered in camera review of a victim's privately-held, privileged health records upon a criminal defendant's motion remains privileged and there is no exceptions to this privilege.  State v. Johnson 407 Wis.2d 195, 2023 WI 39, 990 N.W.2d 174

Victim Advocate:

• Employee of or volunteer for an organization the purpose of which is to provide free counseling, assistance, or support services free of charge to victims. Wis. Stat. § 905.045(1)(e)

Abusive Conduct:

• Abuse of a child, interspousal battery, domestic abuse, sexual exploitation by a therapist, sexual assault, human trafficking involving a commercial sex act, or child sexual abuse (in each case, as further defined in the Wisconsin statutes). Wis. Stat. § 905.045(1)(a)

Confidential Communication:

• Any communication or information not intended to be disclosed to third persons other than persons present to further the interest of the person receiving counseling, assistance, or support services, persons reasonably necessary for the transmission of the communication or information, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, including family members of the person receiving counseling, assistance, or support services and members of any group of individuals with whom the person receives counseling, assistance, or support services.  Wis. Stat. § 905.045(1)(c)

Professional counselor:

• An individual who is licensed as a professional counselor, an individual who is exercising the privilege to practice, as defined in Wis. Stat. § 457.50(2)(s), in Wisconsin, or an individual reasonably believed by the patient to be a professional counselor. Wis. Stat. § 905.04(1)(dm)

Victim:

• An individual who has been the subject of abusive conduct or who alleges that he or she has been the subject of abusive conduct. The abusive conduct does not have to be reported to any government agency. Wis. Stat. § 905.045(1)(d).

• If any information or communication that is subject to the privilege described herein (between a victim and domestic violence/ sexual assault advocate) is also privileged under Wisconsin’s statutes governing physician-patient privilege (including social worker-patient and counselor-patient privileges), the privilege governing physician-patient privilege will supersede the privilege described herein.  Generally, Wisconsin’s statutes governing physician-patient privilege provide that a patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's podiatrist, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.  Wis. Stat. § 905.045(5); Wis. Stat. § 905.04(2).
• Under Wisconsin law, privilege which protects communications made to psychotherapist or counselor by patient protects only “confidential communications,” or all information learned by psychotherapist or counselor during treatment that is necessary for treatment.  S. v. Schwensow, E.D.Wis.1996, 942 F.Supp. 402.
• While “confidential information” is that which is meant to be kept secret, “privilege” is broader concept, which includes legal right not to provide certain data when faced with valid subpoena. State v. Johnson, 2023 WI 39, 407 Wis. 2d 195, 990 N.W.2d 174

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

Wis. Stat. §, 905.05
Wis. Stat. §, 905.06
Wis. Stat. §  905.11