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Confidentiality Laws Last Updated: March 2020

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Confidentiality Laws Last Updated: March 2020 Confidentiality Laws Last Updated: March 2020 What relationships qualify Who holds the privilege Are there any exceptions to the State for privileged and has the right to waive privilege? Statutory citation(s): communications? it? Alabama A victim, victim Holder of Privilege: Limited to criminal Ala. Code §§ counselor without the proceedings (except for 15-23-40 to consent of victim, or a Only the victim may testimony concerning -46 “Victim Counselor minor or incapacitated waive the privilege (or victim’s name, address, Confidentiality Act of victim without the with respect to a location, phone number of a 1987” consent of a custodial minor or facility, etc. in a civil guardian or a guardian incapacitated victim, a proceeding, as described ad litem appointed custodial guardian or above). Ala. Code § upon application of a guardian ad litem). 15-23-42(a) either party, cannot be Ala. Code §§ Mandatory reporting of compelled to give 15-23-42, and suspected child abuse or testimony or to 15-23-43 neglect. Ala. Code § produce records Waiver of Privilege: 15-23-45 concerning confidential If the victim is about to communications for A victim does not commit a crime. Ala. Code any purpose in any waive the privilege by § 15-23-45 criminal proceeding. testifying in court Victim brings suit against a Ala. Code § about the crime. Ala. victim counselor or the 15-23-42(a) Code § 15-23-43(a) organization for which the In both civil and However, if a victim victim counselor works or criminal proceedings, a partially discloses the volunteers, and the suit victim counselor or contents of a alleges malpractice during victim cannot be privileged the counseling compelled to provide communication while relationship. Ala. Code § testimony that would testifying, either party 15-23-43(b) identify the name, may request the court address, location, or to rule that the telephone number of a privilege afforded by safe house, abuse this statute be waived shelter or other facility to the extent that the providing temporary privilege applies to emergency shelter to that portion of the the victim of the communication. Ala. offense or transaction Code § 15-23-43(a)(1) that is the subject of Any waiver shall the proceeding (unless apply only to the the facility is a party to extent necessary to the proceeding). Ala. require any witness to Code § 15-23-42(b) respond to counsel's Privilege terminates questions concerning upon the death of the the confidential victim. Ala. Code § communication that 15-23-42(c) are relevant to the Counselor does not facts and need to be licensed for circumstances of the privilege to apply. R.D. case. Ala. Code § v. State, 706 So.2d 770, 15-23-43(a)(2) 785 (Ala. Crim. App. Jordan v. State, 607 1997). So. 2d 333, 337 (Ala. Crim. App. 1992) The victim counselor privilege is only waived if a victim objectively manifested the intent to waive it. Alaska A victim or victim Holder of Privilege: Alaska Stat. § 18.66.210(1)-(8) Alaska Stat. §§ counselor cannot be 18.66.200 to .250 compelled, without Victim. Alaska Stat. § Mandatory reporting of appropriate consent, to 18.66.220(a) child abuse or neglect. testify or produce Victim counselor may Evidence victim is about to records concerning only waive the commit a crime. confidential privilege with consent Proceeding occurs after communications for of the victim or victim’s death. any purpose in any parent, legal guardian, Communication is relevant criminal, civil, or guardian ad litem to an issue of breach by the legislative, or of the victim. Alaska victim or counselor of a administrative Stat. § 18.66.220(b) duty arising out of the victim-victim counselor proceeding. Alaska Waiver of Privilege: Stat. §18.66.200(a) relationship. Communication is A victim or victim A victim does not Communication is counselor cannot be waive the privilege by admissible under the excited compelled to provide testifying in court utterance hearsay exception testimony that would about the crime. in the Alaska Rules of identify the name, Alaska Stat. § Evidence. address, location, or 18.66.220(a) Services of the victim telephone number of a However, if a victim counselor were sought in safe house or abuse partially discloses the order to enable anyone to shelter or other facility contents of a commit a crime or escape that provided confidential detection or apprehension temporary emergency communication in the after the commission of the housing to the victim of course of testifying, crime. the offense unless the either party may Proceeding concerns court or hearing officer request the court to whether to place a child into determines that the rule that the privilege the custody of the state. information is be waived to the Victim is charged with a necessary and relevant extent that the crime against a minor. to the facts of the privilege applies to Victim is charged with a case. Alaska Stat. § that portion of the crime and the physical, 18.66.200(c) communication. mental, or emotional A victim or victim Alaska Stat. § condition of the victim is counselor cannot be 18.66.220(a) raised as a defense. compelled to give A waiver applies only testimony that would to the extent identify the name, necessary to require a address, or telephone witness to respond to number of a victim counsel’s questions counselor unless the regarding confidential court or hearing officer communications that determines that the were disclosed only to information is the extent relevant to necessary and relevant the facts of the case. to the facts of the Alaska Stat. § case. Alaska Stat. § 18.66.220(a) 18.66.200(c) A minor may waive the privilege and testify or give consent for a victim counselor to testify, if the court determines that the minor is capable of knowingly waiving the privilege. Alaska Stat. § 18.66.200(d)(1) Privilege can be waived by the victim's parent, legal guardian, or guardian ad litem when the victim is a minor or incompetent to testify. Alaska Stat. §18.66.200(a)(2) A parent or legal guardian may not waive the privilege for a minor victim if: The parent or legal guardian has been charged with a crime against the minor; A protective order or restraining order has been entered against the parent or legal guardian on behalf of the minor; or The interests of the parent or legal guardian are otherwise adverse to those of the minor with respect to the waiver of privilege. Alaska Stat. § 18.66.200(d)(2) Arizona A crime victim Holder of Privilege: Ariz. Rev. Stat. § 13-4430(C) Ariz. Rev. Stat. §§ advocate must not 13-4401 and 13-4430 disclose any Only victim may waive Crime victim advocate communication the privilege. Ariz. knows that victim will give between her-/himself Rev. Stat. § 13-4430(A) or has given perjured and the victim, But note that testimony. including any “victim” includes Privileged communications communication made minors, or if the contain exculpatory to or in the presence of victim is killed or evidence. others. Ariz. Rev. Stat. incapacitated, the § 13-4430(A) person’s spouse, A crime victim parent, child, advocate may not grandparent, disclose records, notes, sibling or any documents, other person correspondence, related to the reports, or memoranda person by that contain opinions consanguinity or or information, made affinity to the while advising, second degree or counseling or assisting any other lawful the victim, or based on representative of the communication by the person, or with the victim, unless that including person is in communications made custody for an to or in the presence of offense or is the others. Ariz. Rev. Stat. accused. Ariz. § 13-4430(B) Rev. Stat. § 13-4401(19) Waiver of Privilege: Victim must waive the privilege in writing. Ariz. Rev. Stat. § 13-4430(A) If the crime victim advocate, with written or verbal consent from the victim, discloses to the prosecutor or a law enforcement agency any privileged communication between the crime victim advocate and the victim, including any records or notes, the prosecutor or law enforcement agent must disclose the material to the defense only if such information is otherwise exculpatory. Ariz. Rev. Stat. § 13-4430(E) If a crime victim consents either verbally or in writing, a crime victim advocate may disclose information to other professionals and administrative support persons that the advocate works with for the purpose of assisting the advocate in providing services to the victim and to the court in furtherance of any victim's right pursuant to this chapter. Ariz. Rev. Stat. § 13-4430(F) Victim did not waive privilege preventing disclosure of conversation with advocate, even though victim testified about the conversation, where victim did not provide any written consent to disclosure by advocate. State v. Forde 233 Ariz. 543, 315 P.3d 1200 (2014) Arkansas No statutory privilege for N/A N/A N/A communications between a rape crisis counselor and a sexual assault victim. California A victim of a sexual Holder of Privilege: None specified. Cal. Evid. Code §§ 912 assault has a privilege and 1035-1036.2 to refuse to disclose, Is (i) the victim when and to prevent another there is no guardian from disclosing, a or conservator, (ii) confidential victim’s guardian or communication conservator if victim between the victim and has a guardian or a sexual assault conservator, or (iii) counselor, as long as the personal the privilege is claimed representative of a by any of the following: deceased victim. Cal. (a) the holder of the Evid. Code § 1035.6 privilege, (b) a person The sexual assault who is authorized to counselor shall claim claim the privilege by the privilege if he or the holder of the she is present when privilege, or (c) the the communication is sexual assault sought to be disclosed counselor to whom the and there is a holder communication was of the privilege in made, but that person existence and if not may not claim the otherwise instructed privilege if there is no by a person holder of the privilege authorized to permit in existence or if the disclosure.
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