DOJ recommended that its 1995 report on victim-counselor confidentiality and proposed model legislation be disseminated to governors, attorneys general, and legislators in states that do not have privilege laws for sexual assault and domestic violence victims and their counselors.34 In addition, states already providing protection were encouraged to examine how the privilege works in practice, review court decisions, and consider amendments to provide the maximum confidentiality protection possible. To date, relatively little legislative activity has addressed victim-counselor confidentiality issues. Only a few states with existing privilege laws amended those laws, and Montana passed a victim-counselor privilege law for the first time in 1997.35
Anecdotal reports from victim advocates and victim service providers in the field indicate that unwanted disclosure of counseling records has generally been avoided by informal (i.e., other than legislative) means.36 Victim service providers who counsel victims have adjusted their policies and procedures to conform with the confidentiality limitations in their states. For example, they take fewer notes to avoid having records subpoenaed.
One issue that has yet to be adequately addressed in several states is the need to extend the available privilege to include interpreters who sit in on counseling sessions. A few states, like Georgia and Colorado, have resolved this issue legislatively. Under Georgia law, [w]henever a hearing impaired person communicates with any other person through the use of an interpreter and under circumstances which make such communications privileged, the presence of the interpreter shall not vitiate such privilege and the interpreter shall not be required to disclose the contents of such communication.37 In Colorado, [i]f a qualified interpreter is called upon to interpret privileged communications, the interpreter shall not testify without the written consent of the person who holds the privilege.38
To protect the confidentiality of counseling communications, some prosecutors employ a dont ask/dont tell policy.39 Even in Pennsylvania, which offers a statutory absolute privilege, the courts have held that the voluntary release of counseling records by a victim to the prosecution constitutes a waiver of the privilege.40 The following proposed model language outlines circumstances under which a victim waives the privilege:
The threat of disclosure may be especially problematic for victims when they obtain services from advocates and service providers within the criminal justice system, who are precluded from coverage under counselor privilege laws because of their connection with the government. Ordinarily, a defendants access to confidential information is limited to information that has been obtained by prosecutors and other government employees. Some experts recommend that prosecutors be discouraged from inquiring whether a victim has undergone counseling so as not to have counseling records in their custody, potentially making the records subject to disclosure requests by defense attorneys. A more realistic solution might be to encourage prosecutors to seek a protective order to ensure that any counseling records of which they become aware will not be subject to disclosure.
Although little recent legislative activity has related to victim-counselor privilege, the U.S. Supreme Court reviewed the issue in 1996. In the case of Jaffee v. Redmond,42 the Supreme Court recognized a psychotherapist privilege for the first time. Although no federal psychotherapist-patient privilege law was in effect, the Court was able to establish the privilege pursuant to Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to define new privileges . . . by interpreting common law principles in the light of reason and experience.43 In the course of its opinion, the Court found the four elements traditionally viewed as necessary to establish a privilege to apply to the psychotherapist-patient privilege. Those elements, as formulated by Dean Wigmore, are 1) communication must originate in a confidence that it will not be disclosed; 2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; 3) the relationship must be one that the community believes ought to be fostered; and 4) the injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit that would be gained thereby for the correct disposal of the litigation.44
More significantly, the Court extended the privilege to a clinical social worker, finding that the reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker. . . . Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist . . . but whose counseling sessions serve the same public goals.45
This ruling is extremely encouraging for the future of victim-counselor privilege. Already, the U.S. Supreme Court has found Rule 501 to be, by its own language, open-ended. The Court observed that the rule did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to continue the evolutionary development of testimonial privileges. 46 So far, the Courts 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 indicates that they are likely to be struck down if presented to the Court for review. As the Court stated in Jaffee,
Thus, the groundwork has been laid for similar findings in cases involving other types of victim counselors.