Determine Communication Standards
The way SART team members communicate with each other and with victims plays a large part in providing effective victim services. While other sections in this toolkit have briefly described communication issues, this section reviews those issues in more detail, covering—
If language creates reality, and words define real life experiences, then how we choose words and use language has great influence.1
Individuals who have been sexually assaulted are often defined by service providers according to their professional relationship. For example, for medical and nursing personnel, the person is a patient. For a social worker or counselor, he or she is a client. The police and prosecuting attorney's office interact with victims and witnesses. Rape crisis staff provide services to victims and survivors.2
This section reviews how to—
Consider the Impact of Your Words
You need to be especially attentive about language used in the health care and justice systems. Victims turn to these places for help, healing, and fairness. Every single word and phrase has vital consequences for restoring victims' trust and well-being. For this reason, it is not only important both to know and understand the language of each other's disciplines, but to create a shared SART language accepted by all participating agencies.
For example, one forensic nurse has stated, "The choice of words can make a big difference in the forensic medical exam report, especially in court." The nurse stated that she learned about the importance of language the hard way—the first time she testified in court. The defense attorney tried to discredit the victim because the nurse had documented "patient refused" for a procedure that many other jurisdictions no longer consider important. The nurse learned that in the future it would be better to document "patient declined" on the forensic medical exam form.3
NSVRC Acronym List Spells out common acronyms and abbreviations used by the National Sexual Violence Resource Center.
Develop Common Definitions
You can facilitate better interagency communication by establishing common definitions for technical words. One way to create a shared language is for SART members to discuss their roles and responsibilities, giving them an opportunity to ask questions and clarify procedures. Another way to shape a common language is by developing SART protocols or guidelines, in which terms are defined and easily understood. Documenting a shared language may also mean developing a list of frequently used acronyms to ensure that all SART members understand abbreviated language used in interagency work.
Each SART is governed by statutory definitions, protocol terms, and agency-specific terminology. The following list should help you institutionalize frequently used words to ensure the words and definitions are understood and used consistently across disciplines as they refer to the response to sexual assault. The list, adapted from one developed by the Centers for Disease Control and Prevention,4 is simply a guide, a starting place, as you develop a multidisciplinary, shared language specific to your jurisdiction.
In This Toolkit: Case Scenarios on Ethics
According to A Program Manual for Child Death Review, which contains a chapter on ethical dilemmas faced by teams, "ethics is commonly defined as a set of moral principles or a system of moral values that govern an individual or group."5 Ethical codes also provide boundaries that keep relationships between victims and responders appropriate (e.g., SART members should not give victims their home phone numbers or personal histories or invite them out for purely social engagements).
Multidisciplinary ethics affect all SART members because decisions made by one discipline affect other disciplines. For example, a bilingual advocate who is supporting a victim during a detective's interview may conclude that an interpreter's translation is incorrect; yet the advocate's role is not to participate in the interview or translate for the victim. This situation could cause a dilemma for the advocate (to speak or not to speak) and could affect criminal justice proceedings. Discussing possible ethical situations beforehand (e.g., during team meetings) can help ensure that interagency roles are understood, even in exceptional situations.
This section reviews—
SART Code of Ethics
In This Toolkit: Case Scenarios on Ethics
The dignity and healing of victims depends on the respect and assistance extended to them by professionals. To establish a victim-centered response, you should understand the codes of ethics governing advocates and medical and legal responders and work to develop a standard of ethical principles for the team itself. Use the following list as a catalyst for customizing SART standards when responding to victims or working with team members and allied professionals:6
Ethics and the Law
Sometimes the relationship between ethics and what the law requires may not be the same or may not be clearly distinguished. While closely related, ethical responsibilities usually exceed legal duties and too often we may observe that what may be legal, may not necessarily be ethical.7
Consider the following ethical dilemmas to determine the best responses for your jurisdiction. What if—
Many times, dilemmas arise because SART members think the best action is immediate action. However, immediate action may not always be the best solution. Consider, for example, that during a case review, an advocate realizes the victim had a crucial piece of evidence and it is clear that law enforcement is unaware of the evidence. The advocate could reason that because the victim is cooperating with the police, the information could be shared without a confidentiality waiver. However, instead of making an either/or decision (to speak or not to speak), the advocate might consider contacting the victim to obtain a waiver or encourage the victim to contact police.
Or, what if—
Working through potential dilemmas proactively can minimize cross-disciplinary misunderstandings or ethical breaches. It is crucial for core SART members to understand ethical codes that govern each discipline and to work together as a team to create a shared ethical standard (e.g., how different disciplines, with different job responsibilities and varying degrees of confidentiality/privileged communications, can resolve issues).
Ethical situations that cause dilemmas generally have warning signs. When applying ethics to a crisis-related situation, take proactive measures whenever possible. For example, the following phrases signal a potential for a compromised ethical response that could ultimately affect criminal justice outcomes:8
Protecting victims of sexual violence requires understanding relevant privacy rules and regulations, evidentiary privileges and waivers, the unique status of individuals with disabilities or other protected classes of victims, and state and federal constitutional rights—including crime victims' rights amendments and statutes (see Victims' Rights in this toolkit).
Establish SART guidelines to protect victims' privacy. Inform victims of their privacy rights and the ways in which privacy may be compromised or privileged communication waived during civil or criminal litigation. In addition, let victims know the types of information that may be exposed and the roles of the advocate and attorney in protecting their privacy.
Whether your SART is just starting or has been established for years, you'll need to develop and regularly review your confidentiality policy. At a minimum, it should include9—
The 2005 reauthorization of the Violence Against Women Act (Public Law 109-162) added a requirement related to nondisclosure of confidential or private information regarding services for victims. Under this provision, grantees and subgrantees using Office on Violence Against Women funds may not disclose personally identifying information about victims served without a written release, unless the disclosure of the information is required by a statute or court order. You may want to consider adopting similar confidentiality standards when developing your SART.
Personally identifying information means information for or about an individual, such as a first and last name, a home or other physical address, contact information, a social security number, date of birth, racial or ethnic background, religious affiliation, or any other information that, in combination with other information, could serve to identify an individual.
This section reviews—
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
Read on for more information about—
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 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.
Informed Choice and Consent
Victims may feel that they have nothing to hide and that confidential information can only help them or their court case. However, informed consent requires you to explain to victims the potential uses and misuses of confidential information once it is released to judges, defendants, the police, or public agencies. Also, court records may become public records that anyone can access; you need to consider ways to protect victims' privacy (e.g., sealing court files, prohibiting distribution of documents).12 In other words, informed consent depends on informed choice:
Informed consent also requires that victims understand the implications of their choices, without feeling threatened. For example, if a victim declines a sexual assault medical forensic exam, the lack of physical evidence could negatively affect the prosecution of the case. Victims need to fully understand the benefits and disadvantages of their decisions so that they do not regret their decisions later.
Nonprofit organizations and government agencies may embrace technology without thoroughly understanding the unintended consequences that may arise from it. As data systems become increasingly interconnected, it is vital that SART organizations anticipate and minimize the potential for harm to victims. Essentially, you need to secure the confidentiality of all communications and minimize any data about victims that are collected, stored, and shared. In addition, because some victims will request assistance or advocacy online, it is critical to think proactively through all safety, confidentiality, and monitoring possibilities in connection with electronic communications.
Carefully balance the benefits of recording information against the possible harm that the information could cause the victim or the criminal case if the information were released. Consider written policies on recordkeeping based on guiding principles. In other words, you should always know why information is being kept (e.g., for funders, for the victim's benefit, for reference).
There are benefits and burdens to recordkeeping. Making decisions about what to record and what not to record is easier if you have some underlying principles to guide the process.13 You'll need to decide—
In addition, you'll need to develop policies for electronically stored records, such as the following:14
Unintentional Confidentiality Waivers
Some of the greatest threats to victims' confidentiality and privacy are subpoenas, the demand that crisis counseling records be produced in civil or criminal proceedings, mere slips of the tongue, media reports, victims' lack of informed consent when waiving confidentiality rights, and public records laws. Here are a few examples of how confidentiality breaches can happen:
According to Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions15—
Many times, a victim waives her privileges without intending to do so. This is extremely significant because once a privilege is breached, it is often legally and practically impossible to remedy any harm that results from the breach. In addition, media access to information may become an issue. Generally, the media may use any information it obtains lawfully, even if someone else unlawfully or inadvertently disclosed it. . . . Therefore, it is vitally important for a victim to be fully advised about the various circumstances that may result in an inadvertent waiver. The most common situations include:
If there is a confidentiality waiver, is it a complete waiver as a matter of law or does the state, territory, campus, military, or tribal code and statute recognize partial or limited waivers? Are time limits specified on the waiver? May victims authorize professionals, each of whom has a privileged relationship with the victim, to communicate with one another without compromising the privilege?
Intentional Confidentiality Waivers
In This Toolkit:
Victims can voluntarily waive their privileges, but you should alert them to the benefits and drawbacks of doing so. For example, a benefit could be that sharing information with others on the SART team could improve services and help pending investigations. On the other hand, victims may not be able to control the type or amount of information released or to whom it is released.16 For example—
In addition, although the victim can dictate what the center may voluntarily release, once the center does so, confidentiality is waived and, if a subpoena is served, all victim records and communications may be subject to release.17
In general, releases of information should be clear, concise, and limited to a specific purpose to be achieved; individually tailored to the needs of specific victims; and thoroughly reviewed with the victim.18 Consider including the following information:
The most common situations in which victims intentionally waive privilege are when they19—
When drafting confidentiality policies, carefully consider not allowing emergency verbal releases of information. Only in the rarest of circumstances should a victim be able to authorize a release of information by phone or by any means of communication that does not allow the victim to read and sign the release. If you do decide to allow verbal releases, stipulate the following safeguards in your policy:20
Nearly every state has its own version of the Freedom of Information Act, some of which are referred to as open records, open meetings, open government, or sunshine laws. The laws may contain exemptions to disclosure that a victim may want to protect (e.g., exemptions specific to certain classes of victims, such as victims of sexual violence or minors).21 For example, Florida law requires that certain sex offense information remain confidential as long as the following conditions are met:22
Kentucky's Open Records Act allows the public to monitor how government agencies fulfill their duties. However, the ruling in In re: Courier-Journal/Crime Victims Compensation Board (03-ORD-153) held that the Crime Victims Compensation Board may refuse to disclose detailed information from certain police reports, sexual assault examination reports, and medical records related to a victim's post-assault suicide attempt, and acknowledged that "information is no less private simply because that information is available someplace."
Source: Kentucky Association of Sexual Assault Programs, Responding to Sexual Violence: A Guide for Professionals in the Commonwealth, 2007.
Other Confidentiality Issues
Many other issues affect confidentiality. Here is a sampling of issues, with links for more information:
In This Toolkit: Critical Issues: HIPAA
The Health Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the privacy and security of an individual's health data, particularly regarding the acquisition, use, and exchange of patient information. The rule poses some challenges for SARTs, however, when individuals are not clear on HIPAA exemptions and permissible disclosures.
Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions. Discusses the use of interpreters as it relates to confidentiality.
A National Code of Ethics for Interpreters in Health Care. Lists a code of ethics for interpreters in health care, developed by the National Council on Interpreting in Health Care.
Before using an interpreter to translate for victims, be aware of any confidentiality issues that may arise. Also be aware that finding an interpreter unknown to the victim may be a challenge, depending on the size of your jurisdiction. Review any local and state laws, rules, and procedures regarding the use of interpreters in your jurisdiction.
In many states, medical personnel must report to law enforcement and/or social services if they have treated children, elderly persons, or vulnerable adults who have been sexually assaulted.23 On the other hand, laws requiring health care providers to report cases of competent, adult rape victims vary greatly throughout the Nation. Some states specifically require health care providers to report treatment of sexual assault victims to law enforcement, others require health care providers to report nonaccidental or intentional injuries that can include rape, and still others have laws mandating reporting for injuries caused by criminal conduct or violence.
Keep in mind that members in your SART could interpret state reporting statutes differently, depending on their discipline. Resolve any questions about reporting requirements up front by developing reporting protocols or guidelines and by institutionalizing the guidelines with memorandums of understanding or agreement.
In This Toolkit: Advocates
Describes the advocate's role on the SART team in more detail.
Establishing Victim Services Within a Law Enforcement Agency: The Austin Experience. Describes the benefits to both victims and law enforcement officials of incorporating victim assistance staff within law enforcement agencies.
In some jurisdictions, SARTs place advocates at district attorney's offices, law enforcement agencies, or probation and parole departments in addition to community-based advocacy organizations. Where such arrangements exist, it is essential that the government-based agencies have a clear understanding of the different confidentiality and privilege responsibilities that apply to community-based advocates.
Unique confidentiality issues may arise when serving specific victims. For example—
American Indian communities that have confidentiality policies within their tribal codes can help ensure that victims are afforded both state statutory and tribal code rights for privileged communications to ensure privacy whether victims receive tribal or non-tribal services.
For more information, read—
Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions
Includes chapters on state and federal privileged communications statutes, rape shield laws, sources of privacy for victims, confidentiality waivers, discovery issues and confidentiality, public records, mandatory reporting, anonymous victims, and privacy considerations for specific populations.
Confidentiality and Information-Sharing Within a Coordinated Community Response
Outlines privileged communications for advocates, confidentiality and databases, recordkeeping, and confidentiality differences between government-based and community-based advocates.
Data Security Checklist to Increase Victim Safety & Privacy
Describes the importance of maintaining victims' safety and privacy when using data collection technology, and includes a checklist of guidelines and recommendations to enhance database security.
Discovery Versus Production: There is a Difference
Discusses the basic differences between discovery and production when a defendant seeks access to a victim's records, and the importance of that difference to the victim.
Final Privacy Rule Preamble, U.S. Department of Health and Human Services
Includes standards for protecting the privacy of individually identifiable health information. It applies to health care providers who must provide enhanced protections for individually identifiable health information.
Parameters of Privilege and Confidentiality when Collaborating with Community Partners—A Guide for Sexual Assault Counselors and Advocates
Provides members of multidisciplinary teams with information about the scope of privileged communications that sexual assault counselors/advocates must honor. Search for this publication on the National Sexual Violence Resource Center's Library Web site.
Privacy of Victims' Counseling Communications
Reviews state laws and issues related to the privacy of communications between victims and their counselors.
Victim Rights Law Center
Provides information and answers to frequently asked questions on victims' rights including privacy, immigration, physical safety, education, employment, housing, financial compensation, and criminal justice.
The Victim's Right to Confidentiality
Provides a historical background on confidentiality and its implications for services received at rape crisis centers in Illinois.
2 See, for example, Ohio Department of Health, 2004, Ohio Protocol For Sexual Assault Forensic And Medical Examination, Columbus, OH: Ohio Department of Health.
4 K.C. Basile and L.E. Saltzman, 2002, Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements, Atlanta, GA: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, 9–11.
6 Florida Network of Victim Witness Services, Code Of Professional Ethics for Florida Victim Witness Service Providers. Accessed June 18, 2010.
8 Len Marrella, 2001, In Search of Ethics: Conversations with Men and Women of Character, Sandord, FL: DC Press, 248.
9 Jessica Mindlin, Liani Jean Heh Reeves, and the National Crime Victim Law Institute at Lewis & Clark Law School, 2005, Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions, Portland, OR: National Crime Victim Law Institute.
11 Ibid, 13–14.
13 Leslie Hagen, Kathleen Hagenian, Gail Keieger, and Kim Rattet, 2001, Confidentiality Policy Considerations and Recommendations: A Resource Manual for Michigan Domestic Violence and Sexual Assault Programs, Okemos, MI: Michigan Coalition Against Domestic and Sexual Violence.
14 Connecticut Sexual Assault Crisis Services, Inc., 2003, Confidentiality—The Foundation of Healing: A Manual for Sexual Assault Crisis Centers, East Hartford, CT: Connecticut Sexual Assault Crisis Services, Inc.
15 Mindlin, Reeves, and the National Crime Victim Law Institute at Lewis & Clark Law School, Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions, 24.
16 Connecticut Sexual Assault Crisis Services, Inc., 2003, Confidentiality—The Foundation of Healing: A Manual for Sexual Assault Crisis Centers, East Hartford, CT: Connecticut Sexual Assault Crisis Services, Inc., 6-19–6-20.
17 Mindlin, Reeves, and the National Crime Victim Law Institute at Lewis & Clark Law School, Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions, 25.
18 Hagen, Hagenian, Keieger, and Rattet, Confidentiality Policy Considerations and Recommendations: A Resource Manual for Michigan Domestic Violence and Sexual Assault Programs, 23.
19 Mindlin, Reeves, and the National Crime Victim Law Institute at Lewis & Clark Law School, Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions, 24–25.
20 Hagen, Hagenian, Keieger, and Rattet, Confidentiality Policy Considerations and Recommendations: A Resource Manual for Michigan Domestic Violence and Sexual Assault Programs, 29–30.
21 Mindlin, Reeves, and the National Crime Victim Law Institute at Lewis & Clark Law School, Confidentiality and Sexual Violence Survivors: A Toolkit for State Coalitions, 35.