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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:

  • A court subpoenas the records of a crisis center and requires testimony of the counselor without the victim's consent. The center believes it has no legal recourse to fight a subpoena.
  • In a hospital parking lot, an advocate and a sexual assault forensic nurse debrief about an exam they had been involved in, disclosing case details and using the victim's name within hearing distance of others.
  • Staff at a rape crisis center are meeting in the center's conference room and do not hear the landlord enter the building. They are discussing support services available for a victim. The landlord, attempting to be courteous, stands outside the conference room and hears every word spoken because he did not want to interrupt the meeting.

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:

  • Multidisciplinary teams;
  • Allied professionals sharing information;
  • Insurance disclosures;
  • Pursuit of administrative benefits, such as social security or unemployment benefits; and
  • Parental/family member disclosure.

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?