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Confidential and Privileged Communications
Although the concepts of confidentiality and privileged communications overlap, they are not necessarily the same. For example, victims are entitled to confidentiality regardless of statutes governing privileged communications. Information that is confidential and kept out of public record, however, could be disclosed by court order, as there are no legal protections for confidential communications. On the other hand, information that is privileged may never be disclosed, unless the privilege has been waived or certain exceptions have been met.10
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A confidential communication is one made with the expectation of privacy. Information that is confidential is private information that is not accessible to the general public. However, if confidential information is subpoenaed, it must generally be released unless it is privileged information. An example of a confidential communication might be when a victim tells a trusted coworker about a sexual assault that took place. This communication is made with the expectation of privacy. However, there is nothing to prevent the coworker from telling other people about the sexual assault. And, if the coworker were to be subpoenaed, he or she would have to answer questions.
Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions Provides a framework that states can use to develop their own state-specific manuals or programs.
A Criminal Justice Guide: Legal Remedies for Adult Victims of Sexual Violence Reviews survivor's rights in the criminal justice system within the context of a criminal prosecution and describes how to enforce those rights.
Rights and Remedies: Meeting the Civil Legal Needs of Sexual Violence Survivors Serves as a primer on survivors' civil legal needs.
Privileged communication is defined as statements made by people within protected relationships (e.g., husband and wife, attorney and client) that the law shelters from forced disclosure on the witness stand. Three general categories of privileges exist:11
- Absolute—protects any communication or record of communication between a victim and a qualifying service provider made in furtherance of psychological and emotional healing from examination by defendant or the court.
- Absolute diluted—a privilege that was absolute by its promulgation, but later qualified by a court by allowing for an in camera (in chambers) review of the oral communication or the records. Generally, a court's reason for diluting an absolute privilege is a fear of depriving a defendant of due process rights.
- Qualified—the privilege as written gives discretion to a judge or administrator to hold an in camera review to determine whether the information contained in the confidential communication will be used as evidence in the proceeding.
Absolute privileges allow for complete confidentiality and privacy (e.g., the information holder may never or almost never be required to testify or produce documents). More commonly, states have limited (absolute diluted) or qualified privileges, such that community-based service providers may be required to produce records and testimony for judicial inspection. The judge then decides what may or may not be publicly disclosed. Additionally, more than one privilege may apply (e.g., if the advocate is a social worker and rape crisis counselor, there may be statutory protections governing both roles). Hence, whether a confidential communication is privileged depends on the relationship between the parties and the circumstances under which the communication is made.