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Understanding Privilege for Victim

Advocates

Colorado Organization for Victim Assistance

COVAChristine R. Harms MSTraining Coordinator

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Topics Covered Legal Privilege

Waivers of Privilege

Exceptions to Privilege

Policies and Procedures

The Importance of Legal Counsel

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What This Training Cannot Do For You Provide legal advice

Make you an expert in these issues

Develop your agency policy

Mandate changes in agency practice

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Legal Disclaimer This is a brief review of Colorado law

and practice related to crime victim privilege and confidentiality

The training is not meant to be used as a definitive statement of law or a particular statute

Contact your attorney for all legal questions you may have

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Privilege vs. Confidentiality

Are privilege and confidentiality the same thing?

Does confidentiality come with legal obligations?

Does privilege come with legal obligations?

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Confidentiality Advocates have a professional duty to refrain

from speaking to others about certain matters

Not clearly defined and often used incorrectly

Advocates should keep information confidential unless the situation warrants otherwise: Mandatory Reporting Safety Need to Know

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Privilege Created by statute (law)

Protects certain communications

Addresses who cannot be compelled to testify in court

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Legal Privilege Do victims or advocates have privilege?

Do all victims have privilege?

Can all advocates protect privilege?

What is discovery and how is it relevant to privilege?

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Colorado Statutory Privilege(C.R.S. § 13-90-107) Statutory Protection - who may not

testify without consent

Domestic violence and sexual assault victim advocates added to law in 1994 “Without the victim’s consent, a victim’s

advocate shall not be examined as to any communication made to such victim advocate by a victim of domestic violence…, or a victim of sexual assault.”

Victims hold the privilege – Advocates protect the privilege

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Who Qualifies Advocates with legal ability to

protect privilege are defined as: a person at a battered women’s shelter

or rape crisis organization or a comparable community-based advocacy program for victims of domestic violence or sexual assault and does not include an advocate employed by any law enforcement agency

But those aren’t the only requirements…

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Who Qualifies A victim advocate must also be a person:

Whose primary function is to assist victims of domestic violence or sexual assault

Who has undergone at least 30 hours of training for sexual assault advocates and at least 15 hours of training for domestic violence advocates

Who supervises a program, administers a program, or is supervised by someone in a program

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Document Your Training Be able to prove you’ve had

appropriate training (not specified in law)

Clearly document all training

Agency policies defining curriculum and documentation procedures Agency letter signed by supervisor

certifying training topics and hours

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What Privilege Applies To Privilege applies to spoken and

written communication Conversations Notes Records Reports

These items are not typically subject to discovery – however a judge can order otherwise

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Law Offers Strong Protection Geared to prevent defense attorney

“fishing expeditions”

Good legislative history

Good case law People v. Turner, 109 P.3d 639 (Colo.

2005)

No in camera review

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People v. Turner

” “We hold that the victim-advocate privilege attaches to records of

assistance provided by the victim advocate because those records are a part of ‘any communication’ made to

such advocate by the victim of domestic violence.”

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People v. Turner“We conclude that the underlying purpose of

the victim-advocate privilege and the plain language of the statute forbid the disclosure of records or reports of assistance provided the victim by the Alliance in this case. We

recognize that the strong public policy underlying the statute requires that the

records of assistance or services offered to victims be kept confidential. To interpret the

statute otherwise would betray that clear intent.”

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Who Cannot Protect Privilege? Law enforcement advocates

Attorney General’s Office, DA’s Offices, City Attorney’s Offices, Sheriffs, Police, State Patrol and Marshals

Community-based advocates Working with non-DV or SA crime victims Without appropriate training

Crime victims other than DV and SA

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Why All Advocates Cannot Protect Privilege Discovery – defendants are

constitutionally entitled to: Any and all evidence favorable to the

defendant and suggests innocence

Any and all evidence of “material importance” to the defendant – meaning evidence which, when examined in light of the entire record, likely would affect the trial’s outcome

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What This Means

Conversations, notes, records and reports of advocates who don’t qualify to protect privilege may

be discoverable in an investigation and subsequent

court case

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Note-taking for All Advocates Assume the worst – the defense

will see your notes

Use objective, not subjective, language

Stick to the facts

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Dual Roles What are dual roles?

Can advocates operating in dual roles protect a victim’s privilege?

Is there law or precedent for advocates operating in dual roles?

Is this ever a good idea?

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Addressing Dual Roles This is an unclear area of the

law

In dual role situations it is most likely that privilege will be compromised

The best solution is to have no dual agency or advocate roles

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Addressing Dual Roles Ensure everyone has clarity about

the different roles in any given intervention situation

Lack of clarity can irreparably harm victims

If your agency works in dual roles it is always best to have WRITTEN AGREEMENTS about the differing roles

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Addressing Dual Roles Generally, without written

agreements and policies, your roles are determined by four things: What agency are you representing?

What your role is in relation to the victim?

Who pays your salary?

Who provides your supervision?

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Addressing Dual Roles If your agency operates in dual roles,

never have the same advocate operate in both capacities with the same victim

Different advocates for each role Law enforcement only advocates Community based only advocates

Advocate must clarify their role with each victim and document that clarification

This may not ensure privilege

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Dual Roles and Discovery Caution – You should assume

that the conversations, notes, records and reports of a community-based victim advocate working under contract or memorandum of understanding (MOU) for law enforcement are discoverable

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Some Privilege Examples

Columbine – no privilege

Denver Center for Crime Victims – advocate privilege by registering as unlicensed therapists

DVERT – Lopez case (dual roles)

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Legal Privilege – Important Points to Remember DV and SA victims hold the privilege

Only victim advocates who meet specific statutory criteria can protect privilege

Be aware of discovery – particularly when taking notes

Dual roles are a gray area – assume the worst

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Waivers of Privilege Can privilege be waived?

When is it appropriate to waive privilege?

How should privilege waivers be handled?

What constitutes an accidental waiver?

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Waivers of Privilege Waiver: giving up part or all of

one’s right to privileged communication

Privilege can be waived only by victim

Waivers should be done through a written release

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Proper Waiver Procedures Authorization to Release

Information: Must be in writing, signed & dated

Should be time limited

Should specifically identify to whom the information is being released

Should specifically identify what information is being released

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Critical Issues About Waiving Privilege

A victim should never disclose privileged information or sign a release assuming only law enforcement or the prosecutor will see the information

Assume that any information released to any criminal justice system employee will be discoverable by the defendant

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Accidental Waivers or Violations of Privilege Victim contact with defense

Third party conversations

Medical exams

Other situations – be wary Dual Roles Hallway conversations Media

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Victim Contact with Defense Victims are not required to have any contact

with the defense attorney except in court

Defense investigators represent defendant’s best interests – not the victim’s

Important that victims require identification/ clarification before talking to anyone about their case

Advocates need to advise victims about risk

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Presence of Third PartiesDuring Conversations May inadvertently waive privilege

Advocate who can protect privilege and a system-based advocate Not privileged

Two persons who can protect privilege Probably privileged but not certain

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Presence of Third PartiesDuring Conversations Parents with minors

Only privileged in some circumstances

Privileged when parent & minor are in the presence of:

Attorney representing the child Physician or mental health professional

who has confidential relationship with child Clergy with confidential relationship

Victim advocates are not covered

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Medical Issues Be aware of who is in the

examining room

Medical vs. forensic exam

Two persons who can protect privilege Probably privileged

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Privilege Waivers – Important Points to Remember Waivers can only be granted by the

victim – it’s their decision

Waivers must be written & limited

Assume that any information given to law enforcement will be given to the defendant

Privilege can be accidentally waived – be careful

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Exceptions to Privilege Is privilege absolute or are there

exceptions?

Do victim advocates have to report child abuse in all cases? Are there penalties for failure to report?

Are criminal justice records private or open?

Are victim compensation records private or open?

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Important Privilege Exceptions Mandatory Reporting of Child Abuse

Victim advocates are required to report “Child” is person under 18 years old

Criminal Justice Records

Victim Compensation Records

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Mandatory Reporters of Child Abuse or NeglectC.R.S § 19-3-304

Test for mandatory reporting: Any specified person “who has reasonable

cause to know or suspect that a child has been subjected to abuse or neglect, or …

Who has observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect

“Shall immediately report or cause a report to be made.”

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Definition of Child Abuse or NeglectC.R.S § 19-1-103

Includes, among other things: Physical abuse, malnutrition, or

conditions not justifiably explained

“Any case in which a child is subjected to sexual assault or molestation, sexual exploitation, or prostitution.”

“Any case in which a child is subject to emotional abuse.”

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Where to Make the Report Reports made to law enforcement

or DSS, depending on type of abuse

General rule: Intra-familial abuse or neglect to

county DSS 3rd party abuse or neglect to law

enforcement

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Mandatory Reporters Failure to report may result in:

Criminal prosecution

Civil liability for damages

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Immunity from LiabilityC.R.S § 19-3-309

Good faith is presumed for mandatory reporters

Any person, except the perpetrator, who makes a report in good faith is immune from liability Courts must find willful, wanton or

malicious behavior to overcome immunity

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Advocate Responsibilities as a Mandatory Reporter

Inform clients you are a mandatory reporter

It is not your responsibility to investigate or determine abuse or risk of potential harm

Immediate reporting means immediately

You are responsible for making a report even if the client self reports

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Criminal Justice RecordsC.R.S § 24-72-304

Inspection of criminal justice records General Rule: criminal justice

records open to inspection

Important exception: name of a victim of a sexual assault or an alleged sexual assault

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Criminal Justice Records C.R.S § 24-72-304

Name of any sexual assault victim must be deleted from any criminal justice record prior to release to any individual or agency other than a criminal justice agency

Does not limit victim or victim’s family’s ability to view pre-sentence report, at DA’s discretion

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Victim Compensation Records C.R.S § 24-4.1-107.5 Victim compensation records are

legally considered confidential, but are subject to in camera review

Be aware – the court can review the record and decide the material is necessary to the case, thus making it discoverable

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Privilege Exceptions –Important Points to Remember Mandatory reporting of child abuse is an

absolute exception to privilege

Reports must be made immediately upon knowing or suspecting

Advocates must inform victims about reporting requirements in advance

Criminal justice records are open records – except for name of sexual assault victims

Victim compensation records are subject to in camera review

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Policies and Procedures Does your agency provide

education and awareness regarding privilege and confidentiality?

Does your agency have written policies clearly defining roles and responsibilities?

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Agency Responsibilities Agencies need to create an environment

that ensures: Appropriate training for all staff and

volunteers

Documentation of all training for staff and volunteers

Appropriate response regarding confidentiality, privilege and medical privacy issues

Access to additional resources for clients and the agency when necessary

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Agency Responsibilities Establish written policies

Address roles and boundaries on job applications and at screening interviews

Clearly define staff and volunteer roles and boundaries in all agency interactions

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Other Agency Options Some community based victim

advocacy programs provide victim confidentiality through other means: Register staff as unlicensed therapists

with the Department of Regulatory Agencies

Providing staff with direct clinical supervision by a licensed professional (Psychologist, PhD, PsyD, or EdD; LCSW, LPC, LMFT or CNS) under whom they provide services

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Policies and Procedures – Important Points Agencies should provide appropriate

information and access to training for advocates regarding privilege

Agencies should have written policies and procedures addressing individual training, roles, responsibilities and agency interactions

Agencies have some options regarding obtaining privilege for advocates

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Importance of Legal Counsel Does your agency have an attorney?

Are all office personnel educated about procedures for handling a subpoena?

Has your agency had any conversations with the district attorney regarding victim privilege?

Do advocates understand the relationship between a court order and privilege?

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Critical Point

Get an attorney for your agency before this issue

arises

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Subpoenas Oh no! I’ve just been subpoenaed to

testify and bring my records, what do I do? Don’t panic! Document how and when the subpoena arrived Get legal advice Notify your agency’s attorney Notify the District Attorney (criminal cases) Notify the victim Be prepared to assert privilege on behalf of

victim

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Asserting Privilege Someone needs to assert the privilege on

the victim’s behalf

Victim advocate should be prepared to assert privilege if the DA will not Discuss issue with DA prior to any specific case

Case law supports DA standing to assert privilege People v. District Court 719 P.2d 722 (Colo. 1986) People v. Turner, 109 P.3d 639 (Colo. 2005)

When speaking to the DA, advocates should speak in broad terms or hypotheticals so as not to violate privilege

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Court Orders On very rare occasions a court

may order someone to testify despite the privilege

Important to not make any promises to the victim

Explain to victim: this information is privileged and cannot be disclosed unless a judge orders it disclosed

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Legal Counsel – Important Points to Remember

Have access to an attorney who understands privilege issues

Document receiving all subpoenas and be prepared to assert privilege on behalf of the victim

Court orders supercede privilege – make no promises to victims

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Advocate Responsibilities Know The System

Advocates should know and understand the criminal justice system

Advocates should also have a basic understanding of the civil legal system as it applies to victims (i.e. restraining orders, child custody, restitution, etc.)

Knowing the justice system will help you be prepared for, not surprised by, unpredictability

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Advocate Responsibilities Know Your Limitations You are not an expert in all areas

of victim services

Seek assistance from other advocates

Explore options/resources

Know your own and your agency’s limitations

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Agencies and Advocates Victim advocates have a

responsibility to Do No Harm

Advocates have the responsibility to advocate for the victim and for an appropriate criminal justice system response

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Contact Information Colorado Organization for Victim

Assistance 1-800-261-2682; 303-861-1160 www.coloradocrimevictims.org

Colorado Coalition Against Domestic Violence 1-888-778-7091; 303-831-9632 www.ccadv.org

Colorado Coalition Against Sexual Assault 1-877-372-2272; 303-861-7033 www.ccasa.org

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Pre/Post Test1. False: Privilege and confidentiality are

NOT the same thing2. True: Victim advocates must always

treat client’s information with confidentiality Except…

3. False: Only certain ones4. False: Never5. False: Must have specified,

documented training, license or supervised by licensed

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Pre/Post6. True7. False: only victims can waive8. True: only victims can waive9. True10. True11. True: authorities will investigate12. False: get help!13. True14. True

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Thank you for the work that you do and for

attending this training!

COVAChris Harms

Covatraining@aol.com