Strengthening Sexual Assault Victims' Rights to Privacy
Jessica Mindlin, Joanne Zannoni  -  2009/4/15
http://ovc.ncjrs.gov/ovcproviderforum
 
 
What is the most important piece of information, regarding sexual assault victims' rights to privacy, a person just starting out in working with victims of sexual assault needs to know?
 
1.  Jessica Mindlin
 Finally, it is important that the provider, and also the victim, understand each persons role. Victims do not always understand that the prosecutor does not represent the victim, that the prosecutors client is the government, and that therefore the victims and the prosecutors interests do not always align and indeed may diverge. A victim does not have a privileged relationship with law enforcement or the prosecutor. To the contrary, there is certain information that the prosecutor must disclose to the defendant, even over a victims objections.
 
2.  Jessica Mindlin
 3) Federal and state law obligations require many providers to proactively protect victims privacy rights. Providers who are VAWA funded need to be familiar with the victim confidentiality protections in VAWA 2005, as they expressly prohibit the release of victims personally identifying information unless pursuant to a signed, written release of information or a statute or court mandate. Its not just that one should keep victim information, but rather that one must. 4) To this end, its critical that every non-profit based provider know who among their staff is and is not a mandatory reporter so that the victim is giving informed consent to the disclosures. Similarly, it is critical to know which providers do and do not have a privileged relationship with a victim (e.g., attorney-client privilege, doctor-patient, therapist-patient, etc.), how the privilege operates, and how a victim can waive the privilege (intentionally or otherwise). Also keep in mind that it is the victims and not the providers privilege.
 
3.  Jessica Mindlin
 You asked for the most important piece of information but I am taking the liberty of listing five.1) Privacy and confidentiality are the bedrock of victim-centered services. Indeed, privacy concerns are one of the #1 reasons that SA victims dont report the crime to law enforcement. Its hard to over-estimate the importance of privacy in the aftermath of a sexual assault. 2) Its important to recognize that victim privacy is easy to breach but difficult to remedy. In contrast to domestic violence cases, the perpetrator of a sexual assault may know very little about the victim.
 
4.  Joanne
 First, all information about the victim/survivor is hers/his, not yours, to share, with few exceptions. The role of the sexual assault advocate is to uphold a victim/survivors privacy. A victim/survivors decision to disclose must be voluntary and free from pressure. Only release information with the informed consent and authorization of the victim/survivor. For more detailed information on this topic, please refer to the bulletin entitled Strengthening Sexual Assault Victims Right to Privacy that OVC will be releasing via their website (http://www.ovc.gov) during National Crime Victims Rights Week (April 26-May 2, 2009). Also, two detailed confidentiality manuals for sexual assault crisis centers are available from Connecticut Sexual Assault Crisis Services (go to http://www.connsacs.org/learn/documents/confidentialitymanualdescription.doc).
 
 
I have been informed that I can't call a Victim Advocate until I meet the victim/patient face to face because that would be a violation of HIPPA. Our patients often come from a distance and so we will often give our advocate a heads up so that we can all meet at the same time when the patient arrives (we don't necessarily give all the demographics of the patient at the time). Is this a HIPPA violation or violation of the patients rights? Pam Turner RN, CFN
 
1.  Jessica Mindlin
 Private information may not be released without the victims informed consent, and it is great to err on the side of caution and protecting victims privacy rights, but in the scenario you describe I dont see a conflict between providing advocacy services and respecting victim privacy. There is no need to disclose any personally identifying information before the advocate arrives at the hospital and therefore no HIPPA violation need occur. An advocate can be called and asked to come to the hospital to be available should the victim want services. The services can then be offered by the medical provider and if the victim wants to meet the advocate is already on site. If the patient declines, the advocate can leave without any personal or private information ever having been released.
 
2.  Joanne
 Simply contact the advocate without providing any patient information. Be sure to ask the patient if she/he would like the services of the available advocate prior to introducing patient and advocate. If the patient wants the advocates services, introductions can then be made. Go to the U.S. Department of Health & Human Services website for details regarding HIPAA (http://www.hhs.gov/ocr/privacy/index.html).
 
 
Are universities under any obligation to contact the parents of a student who is sexually assaulted on campus? Or is this a violation of her privacy?
 
1.  Jessica Mindlin
 Universities also need to be mindful of their privacy obligations to students under FERPA (the federal Family Educational Rights and Privacy Act).
 
2.  Joanne
 Though some unique cases may require campus personnel to make a mandated report to protective services, generally speaking, contacting a students parents without the students informed consent and authorization should be considered a violation of her/his privacy. Policies may exist that allow campus personnel to inform parents, but this is not necessarily a good practice. College students who are sexually assaulted are often hesitant to seek any assistance, due in part to their concerns that their parents will find out. Colleges and universities would do well to consider this when developing/revising their policies and procedures.
 
 
Victims deserve the “right” to decide if strangers (law enforcement, advocates or medical) enter into their treatment or simply have knowledge of the assault -unless it is a protected group. How do you safeguard a victim’s right to privacy when legislation mandates certain involvement with the victim regardless of their wishes?
 
1.  Jessica Mindlin
 A key issue is that all victims should be advised of their privacy rights BEFORE they receive services or make a disclosure. This knowledge is key to a victim's ability to give informed consent. Providers who are mandatory reporters need to be very familiar with the scope of when, what, and to whom they must report. For example, providers need to know how their jurisdiction defines child abuse or sexual assault - not every sexually active minor will fall within the legal definition, and so not every act requires a report. Or, for example, a provider might have to make a report that a victim was injured by a knife, but the provider does not have to report (and in some circumstances may be prohibited from disclosing) that the victim was also raped. It's important to be familiar with what must - and must (or may) not - be disclosed. This can help safeguard victims' privacy.
 
2.  Joanne
 Ideally, services provided to sexual assault victims/survivors will be survivor-centered and empowerment-based. Mandated services are inconsistent with this model and present some added challenges. When working with victims/survivors receiving mandated services, establishing trust and setting boundaries regarding what information will and will not be shared with others is vital. Care should be taken to share only what is absolutely necessary (for example, the fact that the victim/survivor received certain services on certain dates to fulfill the imposed mandate).
 
 
In some RI victim compensation claims, we obtain medical records to verify treatment. I prefer not to keep the records in our file. What might be the best practice: to return the records to the medical provider or shred them? My concern is if we are subpeoned to court in the criminal trial, if we shred the records is that a problem? I also don't like to place the victim's confidential medical into the mail.
 
1.  Jessica Mindlin
 Regarding your concern about retaining the medical records in the event you are subpoenaed, I think that the medical records are likely to be sought from the provider/institution that provided the medical care, as they created the records and the records are part of their regular course of business. Depending on what services you provide and what documentation your agency needs, you can certainly document in your file that you received verification from the medical provider that services were provided to the victim. (I am not clear what kind of agency you are, so that may impact whether this addresses your concern.)
 
2.  Joanne
 Service providers can protect victims/survivors privacy (and help victims/survivors do the same) by: decreasing the spread of the victims/survivors information; creating less information/records regarding victims/survivors; and knowing what information is kept and how that information is used. If possible, obtain verification of treatment (only if necessary to process the compensation claim) without obtaining full medical records. Obtain and keep only those records that are required by law. Ensure that your organization has written policies/procedures for keeping, storing, and disposing of records in a manner that safeguards victims/survivors privacy (i.e., locked storage with limited access, timely shredding of documents, etc.).
 
 
How can I better serve as a Victim Advocate to better serve Vic of sexual Assault during trial?
 
1.  Jessica Mindlin
 One of the best and most important things an advocate can do is help ensure that victims know their rights, and help get victims the legal resources they need to enforce those rights. The Victim Rights Law Center published a super-thorough (and very readable!) manual for advocates and attorneys. The manual walks advocates through, step by step, what VRLC believes are the most important areas for advocacy. The manual includes chapters on Intake; Privacy; Intoxication, Credibility and Consent; Forensic Examinations, Mental Health Issues for Survivors; Safety and Protection; Serving Non-citizen Victims; Education; Employment; Housing; Survivors with Disabilities; and Financial Compensation. The manual also includes sample documents, such as an issue-spotting checklist, sample motion to quash, sample letter to a record-holder, and more. You can access VRLC's manual, and many other materials for serving SA survivors, through our website - www.victimrights.org.
 
2.  Joanne
 Advocates can ensure that victims/survivors know their rights, including rights that can help to protect their privacy before, during, and after court proceedings. Advocates can discuss the available options and potential risks and benefits of those options with victims/survivors. For more details on informing victims of court protections, please see the bulletin (soon to be released online via OVCs website). This topic is also covered in much more detail in one of the CONNSACS manuals mentioned earlier.
 
 
Do victims' rights to privacy vary by State? Is there a Web site or database where we can search for the information for our State?
 
1.  Jessica Mindlin
 In addition to each state's law, there are also federal laws that apply to every state. For example, the privacy protections in the Violence Against Women Act apply to all grantees and subgrantees listed in the pertinent section of the Act. Also, each state's law is unique with respect to victim-advocate privilege (some states do not have such privilege; in other states it is absolute or qualified); mandatory reporting laws, etc.
 
2.  Joanne
 The specific privacy protections available for sexual assault victims do vary by state. Here are some helpful resources. Information regarding state statutes can be found on the National Center for the Prosecution of Violence Against Women website (http://www.ndaa.org/apri/programs/vawa/vaw_home.html). National Crime Victim Law Institute offers information regarding victims rights laws as well as victims rights publications via its online library (http://www.ncvli.org/ncvlilibrary.html). VictimLaw (http://www.victimlaw.info/victimlaw) is another source for information about crime victim rights and protections. Victim Rights Law Center (http://www.victimrights.org) is dedicated solely to providing hands-on legal representation for sexual assault victims, and several resources are available via its website.
 
 
How do privacy rights for sexual assault victims differ from those for other types of crime victims?
 
1.  Jessica Mindlin
 Sexual assault victims are entitled to all of the privacy rights accorded to crime victims in general. (This includes victims statutory or constitutional crime victim rights.) In addition, every state has a rape shield law (these laws were supposed to ensure that a victims private and irrelevant sexual history was excluded as evidence in a criminal case). In many (but not all) states there is a privilege law that protects communications between a SA counselor or advocate and a victimsurvivor. The level of protection afforded under the privilege varies widely from state to state, however, and victims need to be informed (before they share information) how private and protected their communications and disclosures are (or aren't). Of course, there are other privilege laws, too, such as therapist-client, attorney-client, medical provider-patient, etc. Some states SA privacy protections extend only to minors. E.g., in a number of states a judge may authorize that a SA victim under a certain age can have her or his testimony taken by videotape in lieu of in-person testimony at a criminal trial and the videotapes are subject to protective order. In Alabama, a judge can limit the number of law enforcement interviews with a SA victim under the age of 12 and the court has authority to schedule a minor SA victims testimony in a room that provides adequate privacy. Also in Alabama a statute requires that court records of a minor SA victim must be kept confidential (15-1-2). In other states, the privacy protections extend to both adult and minor victims. For example, in Alaska the name of a sexual assault victim is not public record and the victims name may not be used in court documents. Instead, the victim's initials must be used. (AS 12.61.140.)
 
 
Please discuss how patient privacy regulations prevent sexual assault nurse examiners (SANEs)from physically releasing hard copies of their SANE written documentation of patient exams to law enforcement? Please address specifically how a SANE is legally restricted from "just running off a copy of the SANE documentation" and handing it directly over to the investigating police officer who arrives to the hospital emergency department. I seek evidence to clarify how SANEs not providing written copies of the patient medical record (SANE documentation) is by no means an act intended to obstruct collaborative practices... but rather implementation of an important universal health care standard intended to maintain patient privacy and confidentiality.
 
1.  Jessica Mindlin
 The answer to the question below (on privacy and collaborations) is relevant here, too. I.e., It's most useful, if possible, to explain the SANE's (or other provider's) confidentiality obligations as part of a general training on victim privacy and confidentiality, patients privacy rights, medical providers confidentiality obligations, etc., rather than having to address it at the medical care facility in the moment the officer is requesting the records. That said, inevitably there are going to be situations where the records are requested and the information is not going to be released. Sometimes it helps to bring in an outside trainer or expert to educate your partners. The International Assn of Forensic Nurses is a great resource on this issue, as are many other SANE trainers around the country. The NSVRC also has a TA project on SANEs and may be able to assist.
 
 
What are some common barriers/obstacles victim service providers experience when trying to protect the rights of sexual assault victims?
 
1.  Joanne
 Perhaps the most easily fixed barrier is our own attitudes. We live in a tell-all kind of society that constantly asks each of us to share personal information, so we may tend not to give privacy its due consideration. We may feel that sharing information would help the victim or keep the community safe. Many people will pressure us to share private victim information for what may seem to be good reasons. Subpoenas are often mentioned, but the greater risk to breaching confidentiality is a slip of the tongue or careless remark that discloses a victims information.
 
2.  Jessica Mindlin
 Some of the most common barriers include: 1) Providers' and agencies' lack of familiarity with victims' privacy rights andor limited understanding of the importance of privacy issues.2) Not enough advocates and lawyers to help victims enforce and protect their privacy rights.3) Sometimes, well-intentioned providers share information without permission because they don't realize they need a release, because they think sharing this information is in the best interest of the victim, and/or because they assume that the partners are all on the same team - forgetting that it is the victim's information and the victim's right to control to whom it is released.4)Sometimes judges, administrators, or other decision makers don't see the harm in requiring the disclosure of a victim's private information. They see themselves as sympathetic and trustworthy and don't fully appreciate how devastating it can be for a victim to have his or her private information revealed.5) Also, different providers have different obligations and different missions to fulfill. As I mentioned below, for example, a prosecutor represents the government and not the victim.6) Agencies' own internal policies and practices are sometimes not updated and therefore may not comply with federal or state privacy obligations.In short, we need a lot more education and understanding about what victims' privacy rights are and how important the issue is to victims.
 
 
How do we help other collaborating agencies know how important our victim's rights are?
 
1.  Joanne
 The bulletin that OVC will release on its website later this month contains a discussion of what should be included in the policies. One of the CONNSACS confidentiality manuals provides a whole list of sample policies. In addition, the National Network to End Domestic Violences FAQs on Survivor Confidentiality Releases provides helpful information (http://www.nnedv.org/resources/safetynetdocs/64-safetynetdocs/208--faqs-on-survivors-confidentiality-releases.html). NNEDV also offers a one-page information sheet on releases and waivers (http://www.nnedv.org/docs/SafetyNet/NNEDV_Releases_AtAGlance.pdf).
 
2.  Jessica Mindlin
 Yes, I can provide some samples. If you email OVC at OVCproviderforum@ncjrs.gov they will give you my contact information.
 
3.  Sharon
 Make sure that your organization has written policies and procedures to safeguard victim/survivor privacy and that every staff member has been trained to effectively and consistently practice those policies. What if your agency doesn't have a policy? Are there sample policies that I could find somewhere to use as a guide?
 
4.  Jessica Mindlin
 There is also a very thorough discussion of the importance of privacy for sexual assault victims in the Victim Rights Law Center's national manual, which is available through the VRLC website at www.victimrights.org.
 
5.  Kim Robertson
 Thank you Ms. Joanne
 
6.  Joanne
 One of the best ways that you can convey the importance of victims/survivors privacy is by protecting that right consistently and effectively. Make sure that your organization has written policies and procedures to safeguard victim/survivor privacy and that every staff member has been trained to effectively and consistently practice those policies. Explain your role early on to those with whom you collaborate so that expectations are clear. Advocate for upholding victims/survivors right to privacy as opportunities arise.
 
7.  Jessica Mindlin
 Every community and partnership is different, but in my experience it helps to approach the issue from a variety of different perspectives and methods. For example, a mixed approach that involves citing the data on privacy, having survivors speak about the importance of privacy in their own caseslives, detailing the federal and state law mandates re: victim confidentiality, articulating program mission and privacy policies and what informs those policies, etc. It is not at all unusual for agencies to discover that what they THOUGHT was a partner's policy or legal obligation is not in fact the case. Also, sometimes providers need to agree to disagree and not take it personally. For example, a victim services agency needs to continue to follow policies and practices that protect victim privacy even though doing so creates some tension between partners. It helps to have a regular forum (such as a SA Task Force) where these conversations can take place. It's especially useful to have them BEFORE there is a conflict arises rather than in the middle of a case gone sour.
 
 
VAWA's recent non-reporting mandate requires that a victim of sexual assault is to be able to get a code-r kit without cooperating with law enforcement. Our county has decided to allow non-reporting victims to have a code-r kit done, but our Center Against Sexual Assault is then turning the kit over to law enforcement with the victim's name, extent of injuries, and the location of the assault. It seems like this treads the line with privacy. Do you have any input? And is our county still VAWA compliant?
 
1.  Jessica Mindlin
 The Maryland Coalition Against Sexual Assault had a project funded by the Office on Violence Against Women to prepare a toolkit on the requirements in VAWA regarding forensic examinations. You can access project materials and other resources online at: http://www.mcasa.org/index.php?page=vawa-forensic-compliance-project. Also, I am happy to discuss this with you individually if that would be helpful. You're welcome to contact me (Jessica) directly.
 
2.  Joanne
 Legislation certainly can help to protect privacy, but many ways of protecting victims/survivors privacy and maintaining confidential services do not require legislation. We can encourage all service providers to understand the importance of protecting sexual assault victims/survivors privacy and to behave in ways that truly protect privacy. Victims/survivors commonly experience feelings of shame, embarrassment, and powerlessness. How many people would we want to know about our most embarrassing or shameful experience? Wouldn't we want to control who knew what about that very personal experience? We must consider the potential impacts and consequences for victims/survivors - not just the legal implications of violating privacy.
 
 
To your knowledge, have there been any recent cases in which a rape crisis counselor or related professional has been held liable in reference to duty to warn responsibilities? Do you feel these statutes tend to be more favorable towards the therapist or the victim?
 
1.  Joanne
 I am not aware of any such recent cases. Understanding what is required by a statute is important. For example, in a particular state, victim advocates may be mandated to report certain types of abuse perpetrated against specific victims. Nevertheless, without in-depth training, victim advocates are often under the erroneous impression that they must report much more than is actually required by law. Being clear about our legal obligations can help us to share only what is necessary.
 
2.  Jessica Mindlin
 I am not aware of recent cases (but this is not a specific issue I closely track). The leading case on this issue nationally was the 1976 case of Tarasoff v. Regents of University of California.
 
 
When adhering to the a victim's rights to privacy, is there a certain pattern that we need to follow? I heard that we were suppose to adhere to legal first, then ethical, and then company policy is this correct?
 
1.  Joanne
 I would argue that agency policies should be legal and ethical. For example, your agency philosophy may be to protect victims/survivors privacy, and this philosophy should be evident in your agencys policies. Nevertheless, your agency policy should address situations where you may not be able to maintain a victim/survivors privacy. For example, if your agency receives a subpoena for a victim/survivors information and that victim/survivor does not want the information released, your agency can file court motions and objections to resist disclosure (a legal and ethical agency policy).
 
 
Often times when working with a victim/survivor of sexual assault they have the opportunity to attend and speak at a parole board hearing for the defendant. What is said is recorded and the defendant can have access to this later on. This often keeps victims/survivors from ever saying anything.Is this going against victims rights of privacy? what is the best way to handel this?
 
1.  Shari Barrett
 I believe this type of statement is viewed as an extension of the original court process where victim's may need to testify in front of the offender. The offender would have access to all information divulged at that hearing much as they would have access to all information given at a parole board hearing.
 
2.  Joanne
 According to U.S. Department of Justice (see http://www.usdoj.gov/uspc/victim.htm), by law, except for victim/survivor locator identifying information (address, phone number, workplace), most materials in a case file are available to the parolee/inmate and his/her attorney, but there are exceptions. Make sure that victims/survivors understand their rights and options in the process (for example, to submit a written statement and to have a support person present). Last but not least, advocate for victim-responsive changes.
 
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