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Privacy of Victims' Counseling Communications

NCJ Number
Date Published
November 2002
8 pages
Publication Series
This paper reviews the types of victim-counselor privilege laws, the court role in defining victim-counselor privilege laws, the rationale for the privilege, and the future of victim-counselor privilege.
All crime victims must be able to communicate freely with their counselors. Not only is counseling helpful in moving victims toward recovery from the impact of the crime, it may be essential in enabling a victim to escape an abusive relationship or to assist in the investigation and prosecution of a crime. Because of the sensitive nature of sexual assault crimes and the need to protect domestic violence victims from future harm, most of the legislation that extends testimonial privileges to counselors has been limited to these two victim populations. More than half of the States have passed laws that extend privilege to sexual assault/rape crisis and domestic-violence counselor. A few States' privilege laws apply to victim counselors in general. In most States, counselors must complete a specified number of training hours to qualify for the privilege. Some States, like Florida and Pennsylvania, have enacted statutes that provide an absolute privilege that prohibits disclosure of confidential counseling records and communications under any circumstances without the victim's consent. Other States, including Alaska, Hawaii, and New Jersey, specify exceptions to the victim-counselor privilege within their respective statutes. Under these laws, disclosure is authorized in limited situations when the information is in the public interest. The most common exceptions involve reporting of the abuse or neglect of a child or vulnerable adult, perjured testimony, evidence of the victim's intent to commit a crime, or malpractice proceedings against the counselor. The remaining States, such as Arizona, California, and New Hampshire, have a qualified privilege that authorizes disclosure if a court finds it appropriate under the facts of the case. In making this determination, a court must use a balancing test, weighing the value of the evidence to the defendant against the victim's need to keep the communication confidential. Although State courts have generally upheld absolute sexual assault victim counselor privileges in the face of defendant claims of constitutional entitlement, courts in a few States have limited the absolute privilege established by statute. In States with qualified privilege laws, counselors cannot assure victims that their communications will remain confidential, because courts determine whether there are grounds for disclosure in each case. The likelihood that victims will forego the counseling they need may increase with their uncertainty about whether their communications will be kept confidential. In the case of Jaffee v. Redmond (1981), the U.S. Supreme Court recognized a psychotherapist privilege for the first time. The Court was able to establish the privilege pursuant to Rule 501 of the Federal Rules of Evidence, which "authorizes Federal court to define new privileges...by interpreting common law principles in the light of reason and experience." The Court found the four elements traditionally viewed as necessary to establish a privilege to apply to the psychotherapist-patient privilege. So far, the Court's rulings support the recognition of an absolute rather than a qualified privilege. Although the Supreme Court has not ruled directly on any qualified privilege laws, its rejection of the balancing component of such laws indicated that they are likely to be struck down if presented to the Court for review. 47 notes

Date Published: November 1, 2002