Chapter 4 - §12. Sexual-assault counselor-victim privilege

• Jurisdiction: United States

§12. Sexual-assault counselor-victim privilege

§12.1. Overview. A victim of sexual assault, whether or not a party to the action, has a privilege to refuse to disclose (and to prevent another person from disclosing) a confidential communication between the victim and a sexual-assault counselor. Evid. C. §1035.8. The public-policy purposes of the sexual-assault counselor-victim privilege are (1) to protect confidences disclosed to a sexual-assault counselor by a person who believes she has been victimized by a sexual assault for the purpose of receiving advice and guidance about physical or mental conditions caused by a sexual assault and (2) to encourage victims of sexual assault to openly come forward and fully report any incidents of abuse so they can receive assistance. People v. Gilbert (6th Dist.1992) 5 Cal.App.4th 1372, 1391. The privilege therefore alleviates the victim's apprehension that such information will be disclosed to other persons without the victim's consent. See id.

§12.2. Elements of sexual-assault counselor-victim privilege. For the sexual-assault counselor-victim privilege to apply, there must be (1) a sexual-assault counselor-victim relationship and (2) a confidential communication. See Evid. C. §1035.4.

1. Sexual-assault counselor-victim relationship. The sexual-assault counselor-victim relationship is established when a victim of sexual assault transmits confidential information to a sexual-assault counselor. See Evid. C. §1035.4.

(1) Sexual-assault counselor. A sexual-assault counselor is a person (1) who is engaged in an office, hospital, institution, or center, commonly referred to as a rape crisis center, including a psychotherapist as defined under Evid. C. §1010, (2) who is engaged in a program on the campus of a public or private institution of higher education with the primary purpose of providing advice or assistance to sexual-assault victims and who has received the required training as set out under Evid. C. §1035.2(b), or (3) who is employed by any organization providing the programs specified in Pen. C. §13835.2 for the purpose of counseling and assisting sexual-assault victims and who meets the requirements set out under Evid. C. §1035.2(c). Evid. C. §1035.2.

(2) Victim. A victim is any person who consults with a sexual-assault counselor for the purpose of obtaining advice or assistance relating to a mental, physical, or emotional condition caused by a sexual assault. Evid. C. §1035. For purposes of the privilege, sexual assault includes the following offenses...