Confidentiality Laws
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Introduction
The recent trend of protecting the confidential communications between sexual assault counselors and sexual assault victims is a step forward in promoting victim recovery and expanding the scope of a rape victim’s rights. Similar to the more well-known evidentiary privileges between psychotherapists and patients, husbands and wives, and clergy members and penitents, a majority of state legislatures has, in recent years, enacted legislation privileging the communication between rape crisis counselors and sexual assault victims transmitted during the course of the counseling relationship. Keeping such information confidential allows for the development of a trustful and healing relationship between a sexual assault victim and a counselor and cultivates the type of connection necessary for recovery to occur. While many state legislatures have recognized the need to foster the victim counseling relationship by enacting privilege statutes, the scope of the privilege varies widely between states. What follows is a short explanation of the policy reasons behind enacting a sexual assault counselor-victim privilege, the current status of such statutory privileges, and a short summary of each state’s victim counseling privilege, including any case law interpreting the language of the statute.
Rationale for the Privilege
Victim counselors serve an essential function for survivors of sexual assault and other violent crimes. Because sexual assault is such an extreme violation of one’s privacy, rape victims often suffer a wide range of psychological and emotional trauma in the aftermath of an attack.1 Studies have shown that rape victims suffer a degree of trauma “far beyond that experienced by victims of other crimes.”2 As a result, victims seek the services of rape crisis centers and counselors in order to facilitate recovery through crisis intervention, follow-up counseling, and medical and legal advocacy.3 However, the effectiveness of the counseling relationship depends upon the confidentiality of the communications between crime victims and their counselors.4 Without a guarantee of confidentiality, sexual assault victims may not be willing to disclose personal information for fear that their innermost thoughts and feelings will later be scrutinized by defense counsel and used against them during a trial.5 Holding back relevant information decreases the effectiveness of counseling, and victims who suppress their thoughts do not benefit fully from the counseling relationship.6 Without a sexual assault counselor-victim privilege, repeated disclosure of such private confidences serves to undermine the very purpose of victim counseling, which depends upon the development of a trusting victim-counselor relationship in order to reach the ultimate goal of helping a rape victim “understand and resolve [their] feelings about the event."7
In addition, regular disclosure of communications between sexual assault victims and their counselors may serve to inhibit other victims from seeking counseling in the first place.8 Lastly, sexual assault victims are more likely to report the crime and prosecute the offender if they are receiving psychological support.9 Because sexual crimes too often go unreported, the states have an interest in fostering effective victim-counselor relationships in order to encourage more victims to file the initial police report and, in turn, prevent future instances of sexual assault.10 In the interest of victim recovery and continued trust in the capabilities of rape crisis counselors, a sexual assault counselor-victim privilege statute is a necessity.
Many courts have also justified the sexual assault counselor-victim privilege on the grounds that communications between psychotherapists and their patients are already statutorily privileged in most states. Because of the critical function that counseling serves in the aftermath of a sexual assault, courts have expressed an interest in encouraging anyone who needs counseling to seek it out, whether it is carried out by a licensed psychiatrist or by a counselor at the local rape crisis center.11 According to the New Mexico Supreme Court, “[i]t would make little sense for victims of rape to be deprived of the privilege because they seek help from victim counselors at rape crisis centers, while victims with the resources to seek help from a licensed psychologist would benefit from the privilege”.12 Therefore, because sexual assault counselors often provide counseling services to victims who may not be able to afford those of a licensed psychotherapist, the sexual assault counselor-victim privilege serves a similar function as the well-known and less controversial psychotherapist-patient privilege.13
Status of Privilege Laws Today
To date, at least 40 states have enacted some form of privilege statute preventing disclosure of communications between sexual assault counselors and victims. While some of the privilege statutes protect only written records maintained by rape crisis counselors and centers,14 other states have enacted broader privileges that encompass both written records and oral testimony of both victims and victim counselors.15 In either form, the widespread enactment of such statutes demonstrates a recognition by a majority of state legislatures that the sexual assault counseling relationship serves a valuable societal function in helping victims recover from the traumatic experience of a sexual assault.
The sexual assault counselor-victim privilege statutes vary widely from state to state. However, there are certain categories of information that tend to appear in the privilege statutes of most states. Sexual assault counseling privilege statutes generally set forth the scope of the privilege, and list any circumstances in which the privilege would not apply. One of the most widely listed of such exceptions is the duty of a sexual assault counselor to report any child abuse or neglect revealed during the course of the counseling relationship.16 Such mandatory reporting obligations tend to override the evidentiary privilege protecting victim counseling communications. In addition, privilege statutes generally identify the holder of the privilege, and describe the procedure for waiving the privilege. Lastly, most statutes include a section for definitions, which identifies of the types of communications that fall under the privilege, describes what qualifies as a rape crisis or victim counseling center, and lists any minimum training requirements a sexual assault counselor must undergo in order for the privilege to apply.
Certain state privilege statutes operate only under very narrow circumstances. Such limiting circumstances are generally listed under the ‘Notes’ category in the following database. In some states, the sexual assault counselor-victim privilege applies only in certain types of proceedings. In Alabama, for instance, an evidentiary privilege between victims and sexual assault counselors exists only in criminal proceedings,17 while the Louisiana statute pertains only to civil proceedings.18 Several states, including Oklahoma, protect only the written records of rape crisis centers and fail to indicate whether sexual assault counselors may be compelled to testify orally during a trial.19 Lastly, a handful of states require a rape crisis center or a sexual assault counselor training program to be certified by a state administrative entity in order for the privilege to apply.20
Role of the Courts in Defining the Scope of Privilege Statutes
The courts have played an important role in interpreting the language of sexual assault counselor-victim privilege statutes. For instance, courts in several states have provided further guidelines for waiving the victim counseling privilege. In Alabama, for example, the state’s Court of Criminal Appeals concluded that, in order for waiver of the sexual assault counselor-victim privilege to occur, the victim must have objectively manifested the intent to waive it.21 In addition, some courts have clarified the scope of the privilege. In Connecticut, for example, the state’s Supreme Court ruled that a sexual assault counselor’s identity must be disclosed in order to determine whether the counselor has undergone the minimum training as required by the privilege statute.22 Less frequently, a court will further clarify a definition contained in the language of the privilege. For example, the Pennsylvania Superior Court determined that a complainant still qualified as a victim pursuant to the state’s privilege statute even though the sexual assault counselor had determined conclusively that she was fabricating her complaint against the defendant.23
The most significant contribution courts have made to the development of sexual assault counselor-victim privilege statutes, however, is determining whether or not a defendant is entitled to have a victim’s rape crisis counseling records inspected for any relevant or exculpatory material. Such an inspection, called an in camera review, is conducted by the trial judge in private. Generally, the trial judge reviews the confidential records and provides the defense with any portion of the communication that is deemed relevant or exculpatory, employing a balancing test to determine whether the value to the defendant in disclosing such records outweighs any detriment to the victim caused by the disclosure. Instead of completely barring a criminal defendant’s access to confidential information, providing for judicial in camera review allows a defendant to view the privileged records only after the judge concludes that they are relevant to his defense. However, permitting a trial judge to inspect rape crisis center records in camera intrudes on a sexual assault victim’s expectation of privacy and goes against the policy reasons for privileging victim counseling records in the first place.24
Three Types of Sexual Assault Counselor-Victim Privilege Statutes
Several states have enacted sexual assault counselor-victim privilege statutes that expressly provide for the possibility of in camera review of the privileged records as long as the defendant makes a threshold showing that the confidential records contain material relevant to his defense. The privilege statutes in these states are classified as ‘qualified by statute’ in the following database. As an example, New Hampshire’s privilege statute provides that a trial judge may conduct an in camera review of privileged records only after the defendant has demonstrated by a preponderance of the evidence that the probative value of the requested information outweighs it prejudicial effect on the victim’s recovery, that the requested information is unavailable from any other source, and that failure to disclose the confidential records will likely inhibit the defendant’s right to a fair trial.25 Generally, the constitutionality of these types of statutes is uncontested, as defendants are given a fair chance to access privileged counseling records as long as they can make the threshold showing.
Many state legislatures, however, have enacted an absolute privilege protecting the communications between victims and sexual assault counselors. In these states, the sexual assault counselor-victim privilege statute contains no language suggesting that judicial in camera review of confidential records is a possibility. The constitutionality of these absolute privilege statutes tends to be challenged more often because defendants are denied access to an entire class of potentially useful evidence. Courts in a few states, such as Pennsylvania26 and Colorado,27 have upheld the absolute nature of the privilege nonetheless, holding that “the strong public policy underlying the statute requires that records of assistance or services offered to victims be kept confidential.”28 For these states, the privilege is classified as ‘absolute’ in the following database.
Courts in other states with seemingly absolute privilege statues, however, have determined that, upon a threshold showing, judicial in camera inspection of the privileged information is necessary in order to preserve a defendant’s constitutional rights to due process and confrontation. In each of these states, the statute is classified as ‘qualified by judicial decision’ in the following database. While victims in these states fare better than those without any sexual assault counselor-victim privilege, allowing for in camera review of privileged records disregards the substantial public interest in maintaining the confidentiality of such highly personal information.29 For instance, while Michigan’s privilege statute is absolute on its face, the state’s Supreme Court held that the statutory privilege must yield when a defendant’s constitutional rights are compromised.30 As a result, a trial judge in Michigan will conduct an in camera review of privileged rape crisis records if the defendant can demonstrate that there is a reasonable probability that the records contain material information necessary to the defense.31 Similarly, in Connecticut, a trial judge will not inspect the confidential records in camera unless the defendant has shown that there is good reason to believe that failure to produce the privileged information will impair his right to confrontation.32 In Massachusetts, a recent case went further in disregarding a victim’s privacy interest by granting defense counsel direct access to the privileged information in order to conduct its own in camera review.33
The following database provides an in-depth look into the status of sexual assault counselor-victim privilege statutes in the fifty states and the District of Columbia. The state-by-state summaries include a description of the privilege statute in each state and include any judicial decisions affecting the scope of the privilege or further clarifying the language in the statute.
