PRIVACY OF VICTIMS’ 

COUNSELING COMMUNICATIONS

U.S. Department of Justice

Office of Justice Programs

Office for Victims of Crime

NOVEMBER 2002

Introduction

P

rivacy issues concern crime victims throughout the criminal justice process. Some

victims, afraid of harassment or retaliation by offenders, may worry that who they

are and where they live may be readily available through public records or court

testimony. Fear about who might have access to victim impact statements, presentence

reports, and compensation files may result in restrained responses and guarded participation by victims. Moreover, to cope with the complicated emotions that often accompany

the physical injuries and trauma resulting from a crime, many victims turn to counseling,

only to find that the personal thoughts they share may be disclosed during the trial.

According to a report issued by the U.S. Department of Justice’s (DOJ’s) Violence

Against Women Office (VAWO), the need to protect a crime victim’s confidential

counseling communications is critical:

A successful prosecution depends on the cooperation of the crime victim. Yet,

in many cases . . ., a woman who has been attacked frequently finds herself

victimized a second time when her case goes to court. . . . In far too many

cases, defense attorneys subpoena counseling records and call counselors as

witnesses. The attorneys use the records to shift the court’s focus from the

crime to the victim’s thoughts and comments regarding the emotionally devastating incident. Often, victims face the threat that their most intimate feelings will be disclosed in open court and become a matter of public record.1

Several state legislatures have responded by enacting laws intended to protect the

privacy of communications between victims and their counselors or therapists.

Status of the Law

Victim-Counselor Privilege Laws 

Traditionally, many types of communication have been protected from disclosure in

court. These include communication between husband and wife, physician and patient,

attorney and client, clergy and parishioner, and psychotherapist and patient. Recently,

confidential communication generated in the course of a counseling relationship has

also been afforded statutory protection from disclosure. In general, these so-called

LEGAL SERIESBULLETIN

#8

Message From

the Director

Over the past three decades, the

criminal justice field has witnessed an

astounding proliferation of statutory

enhancements benefiting people who

are most directly and intimately affected by crime. As of 2000, all states had

passed some form of legislation to benefit victims. In addition, 32 states have

recognized the supreme importance of

fundamental and express rights for

crime victims by raising those protections to the constitutional level.

Of course, the nature, scope, and enforcement of victims’ rights vary from

state to state, and it is a complex and

often frustrating matter for victims to

determine what those rights mean for

them.To help victims, victim advocates,

and victim service providers understand the relevance of the myriad laws

and constitutional guarantees, the

Office for Victims of Crime awarded

funding to the National Center for

Victims of Crime to produce a series

of bulletins addressing salient legal

issues affecting crime victims.

Privacy of Victims’ Counseling Communications, the eighth in the series, provides

an overview of state laws and current

issues related to the privacy of communications between victims and their

counselors.Although several state

legislatures have enacted laws on this

issue, statutes vary greatly depending

on the type of counselor covered by

Continued on page 2
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2

developed throughout the counseling relationship, any other

interpretation of the statute would render the entire privilege

meaningless. . . . Insulating the counselor from giving testimony

would be inconsequential, as most information the counselor

might give would be available in the records themselves.”5

Specific Victim-Counselor Privilege Laws

Although every state affords testimonial privilege to psychotherapists and their patients, many victims receive counseling from

service providers who, though publicly funded and more affordable, do not have the same credentials or professional license as

psychotherapists and often are not provided a communications

privilege. This is a significant distinction for many victims. For

example, domestic violence victims are more likely to seek counseling from public resources because they are often denied access

to financial resources by their abusers. One study showed that 27

percent of battered women had no access to cash, 34 percent had

no access to a checking account, and 51 percent had no access to

credit cards.6 Many victim advocates and victim service providers

argue that victims who receive counseling from rape crisis centers

or domestic violence shelters should not be denied the privilege

while victims who are able to pay for counseling from psychotherapists in private practice receive the privilege. Otherwise, the

privilege is conditioned solely on the victim’s ability to pay, and

the victim’s economic status becomes the basis for denying the

privilege. Applicable case law has supported this premise when

extending testimonial privilege to social workers and other counselors, providing that “[d]rawing a distinction between the counseling provided by costly psychotherapists and the counseling

provided by more readily accessible social workers serves no discernible public purpose.”7

Because of the sensitive nature of sexual assault crimes and the

need to protect domestic violence victims from future harm,

most of the legislation extending testimonial privileges to counselors has been limited to these two victim populations. More

than half of the states have passed laws extending privilege to

sexual assault/rape crisis and domestic violence counselors.8 A

few states’ privilege laws apply to victim counselors in general.9

In most states, counselors must complete a specified number of

training hours to qualify for the privilege.10

Types of Victim-Counselor Privilege Laws

Victim-counselor privilege laws generally fall into one of three

categories: absolute, semiabsolute, and qualified.11 These classifications apply to the victim-counselor privilege laws in effect

today.

the privilege and the extent of the protection afforded crime

victims.This bulletin and the others in the Legal Series highlight

various circumstances in which relevant laws are applied,

emphasizing their successful implementation.

We hope that victims, victim advocates, victim service providers,

criminal justice professionals, and policymakers in states across

the Nation will find the bulletins in this series helpful in making

sense of the criminal justice process and in identifying areas in

which rights could be strengthened or more clearly defined.We

encourage you to use these bulletins not simply as informational

resources but as tools to support victims in their involvement

with the criminal justice system.

John W. Gillis

Director

victim-counselor privilege laws enable counselors to maintain

the confidentiality of information revealed to them, even if they

are called to testify as a witness in a trial or another proceeding.

As proposed model legislation drafted by DOJ provides, “A victim has a privilege to refuse to disclose and to prevent any other

person from disclosing confidential communications between a

victim and a victim counselor, in any criminal, civil, legislative,

administrative, or other proceeding. Confidential communications may be disclosed by a person other than the victim only

with the prior written consent of the victim.”2

In addition to preventing counselors from testifying or being

compelled to testify in court, many privilege laws directly extend

protection to a counselor’s written records, such as reports, memoranda, and working papers produced during the course of the

counseling.3 DOJ’s proposed model legislation defines “confidential communications” as

[a]ny information, whether written or spoken, which

is transmitted between a victim . . . and a victim

counselor in the course of the counseling relationship

and in private, or in the presence of a third party who

is present to facilitate communication or further the

counseling process.4

Even in the absence of specific statutory language, courts have

interpreted the privilege to apply to records and materials developed throughout a counseling relationship. As the Pennsylvania

Supreme Court reasoned, “the statutory privilege considered here

must extend to the subpoena of records and other documents

Continued from page 1
3

PRIVACY OF VICTIMS’ COUNSELING COMMUNICATIONS

Some states, like Florida and Pennsylvania, have enacted statutes

that provide an absolute privilege prohibiting disclosure of confidential counseling records and communications under any circumstances without the victim’s consent.12 Absolute privilege

laws provide the broadest privacy security, protecting virtually all

communications between a victim and counselor.

Other states, including Alaska, Hawaii, and New Jersey, specify

exceptions to the victim-counselor privilege within their respective statutes.13 These states set forth a semiabsolute privilege

and authorize disclosure in limited situations when disclosure of

information is in the public interest. The most common exceptions involve reporting of abuse or neglect of a child or vulnerable adult, perjured testimony, evidence of the victim’s intent to

commit a crime, or malpractice proceedings against the counselor. Although these laws do not provide the unlimited confidentiality of absolute privilege laws, they do provide complete

protection from disclosure except under narrowly defined

circumstances.

The remaining states, such as Arizona, California, and New

Hampshire, have a qualified privilege that authorizes disclosure

if a court finds it appropriate given the facts of the case.14 In making that determination, a court must use a balancing test, weighing the value of the evidence to the defendant against the

victim’s need to keep the communication confidential. The defendant is required to establish that the information sought for

disclosure is at least minimally relevant or material to his or 

her defense. Often, the court will conduct an in camera (in

chambers) review of the evidence before making a decision. As

a result, the confidentiality of counseling communications is

decided on a case-by-case basis, and both parties are given the

opportunity to make their arguments for or against disclosure.

Court Role in Defining Victim-Counselor 

Privilege Laws

The courts have played a significant role in further defining the

limits of victim-counselor privilege laws. An example is the

development of Pennsylvania’s absolute privilege law.

In January 1981, the Pennsylvania Supreme Court issued an

opinion on whether a court presiding over a rape trial could authorize the defendant’s attorney to inspect the files of Pittsburgh

Action Against Rape (PAAR), a rape crisis center.15 The files

contained copies of communications between the rape victim

and center personnel. At that time, no statutory privilege existed

to protect communications between rape crisis center personnel

and sexual assault victims from disclosure. The trial court had

issued an order permitting the defendant’s counsel to inspect the

portion of PAAR’s files containing a statement made by the victim on the night of the alleged rape. PAAR’s director refused to

comply with the court’s order and was subsequently held in

contempt. The director appealed, asking the court to create an

absolute privilege to protect the confidentiality of the victim’s

counseling records. The appellate court responded, stating,

“Although we recognize the important societal interest in promoting such communications, we also recognize the compelling

societal interest in the truth-seeking function of our system of

criminal justice.”16 The appellate court upheld the trial court’s

ruling allowing the defense counsel to inspect the files; however,

it limited the inspection to the victim’s statements about the

offense.

In a passionate multiple-page dissent, Justice Rolf Larson stated,

“I am convinced that an absolute privilege should exist for confidential communications made in the rape victim/rape crisis

counselor relationship. . . . Since my position is, alas, only a dissent, I appeal to our legislature to take cognizance of the rape

victim’s plight and to act promptly and compassionately in legislatively enacting a rape victim/rape crisis counselor testimonial

privilege.”17

In response to the PAAR case, the Pennsylvania legislature

created an absolute privilege law18 in December 1981. In 1992,

the Pennsylvania Supreme Court upheld the scope and constitutionality of the statute, specifically noting that the intent of the

legislature was to override the decision of the court in the PAAR

case.19

Privilege laws in other states have not fared as well. Although

state courts have generally upheld absolute sexual assault victimcounselor privileges in the face of defendant claims of constitutional entitlement,20 courts in a few states, such as Connecticut

and Massachusetts, have limited the absolute privilege established by statute.21 Massachusetts courts have been especially

influential in molding the scope of the state’s counselor privilege.

After the legislature passed a law intended to establish an absolute privilege, the Massachusetts Supreme Judicial Court determined that, under certain circumstances, a defendant must have

access to privileged materials to have a fair trial. The court

qualified the privilege by establishing a five-step procedure for

judges to follow when weighing a sexual assault victim’s statutorily protected privacy interest against the defendant’s constitutional rights.22 This balancing test was later modified to increase the

standard of need that a defendant must satisfy before being granted access to a victim’s privileged counseling records.23 In July

1997, the Massachusetts Supreme Judicial Court acknowledged

for the first time that crime victims may have a constitutional
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4

This Act recognizes the important role of counseling

in the ability of victims to recover from the trauma of

the crime and in the achievement of legal safeguards

and of the social and economic assistance essential to

achieve protection from further criminal assault. . . .

Without assurances that communications made during

the counseling relationship will be confidential and

protected from disclosure, victims will be even more

reluctant to seek counseling or to confide openly to

their counselors and to explore legal and social remedies fully.31

Most therapists are ethically required to inform their clients of

any limitations on confidentiality at the beginning of a counseling relationship. Both the American Psychological Association

and the American Counseling Association require their members

to explain to clients any limitations and to identify foreseeable

situations in which confidential communications might be subject to disclosure.32 The level of confidentiality assurance that a

counselor can provide for a victim depends on whether the

applicable privilege is absolute, semiabsolute, or qualified.

A major benefit provided by laws guaranteeing absolute testimonial privilege is that counselors can provide upfront assurance for

their clients that anything they discuss will be kept confidential.

Such assurances can help victims feel secure enough to discuss

their fears, thoughts, and feelings about the crime committed

against them.

Although semiabsolute privilege laws are more limited than

absolute privilege laws, counselors can still inform victims unequivocally that the confidentiality of their communications can

be maintained in all but a few situations described within the

statute. Because the limitations are clearly contained in the

statutory language, victims can be given adequate notice of the

type of circumstances that can trigger disclosure, enabling them

to make informed choices concerning the information they share.

In states with qualified privilege laws, however, counselors cannot

assure victims that their communications will remain confidential.

Because courts determine whether there are grounds for disclosure

in each case, counselors and their victims can never be sure when

the defense’s request for counseling records will be granted.

The likelihood that victims will forego the counseling they need

may increase with their uncertainty about whether their communications will be kept confidential. In December 1995, VAWO

issued a Report to Congress that presents agency findings on 

victim-counselor confidentiality and model legislation (segments

of the model legislation have been quoted in this bulletin). The

right to protect the confidentiality of their counseling records,

thereby opening the door to broaden the privilege’s scope.24 The

Massachusetts courts continue to wrestle with the counselor privilege issue.25

Just as some absolute privilege laws have been judicially limited,

courts in a few states also have modified semiabsolute privilege

laws.26 For example, the Michigan Supreme Court modified that

state’s privilege law, holding that, “in an appropriate case there

should be available the option of an in camera inspection by the

trial judge of the privileged record on a showing . . . that there 

is a reasonable probability that the records are likely to contain

material information necessary to the defense.”27 In contrast,

because a qualified privilege grants both the defendant and the

prosecution the opportunity to demonstrate whether disclosure

is appropriate, these laws typically are not challenged as

unconstitutional.

Rationale for the Privilege

Both courts and legislatures have acknowledged the importance

of confidentiality in promoting an effective counseling relationship. The U.S. Supreme Court observed that

effective psychotherapy . . . [d]epends upon an atmosphere of confidence and trust in which the patient is

willing to make a frank and complete disclosure of

facts, emotions, memories, and fears. Because of the

sensitive nature of the problems for which individuals

consult psychotherapists, disclosure of confidential

communications made during counseling sessions may

cause embarrassment or disgrace. For this reason, the

mere possibility of disclosure may impede development

of the confidential relationship necessary for successful

treatment.28

Likewise, the Illinois Supreme Court noted that “if a rape crisis

counselor could not guarantee confidentiality to a victim, the

effectiveness of rape crisis centers would be undermined.”29

New Jersey’s semiabsolute victim privilege law specifies the legislature’s intent in enacting a law that states, “Counseling of violence and victims is most successful when the victims are assured

their thoughts and feelings will remain confidential and will not be

disclosed without their permission; . . . . Confidentiality should be

accorded all victims of violence who require counseling whether or

not they are able to afford the services of private psychiatrists or

psychologists.”30 DOJ’s proposed model legislation contains a findings and purposes section that outlines the need to protect victims’

confidential communications with their counselors:
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PRIVACY OF VICTIMS’ COUNSELING COMMUNICATIONS

report notes that in “Massachusetts and Pennsylvania, following

judicial decisions which refused to recognize a rape victimcounselor privilege, there were alleged decreases in the number

of victims who sought counseling, increases in the proportion of

phone calls from victims in which the victims would not disclose

their identities, increased requests from victims to have their files

destroyed, or a decreased likelihood that victims who received

counseling would thereafter pursue prosecution of the offender.”33

Current Issues

D OJ recommended that its 1995 report on victim-counselor

confidentiality and proposed model legislation be disseminated to governors, attorneys general, and legislators in

states that do not have privilege laws for sexual assault and domestic violence victims and their counselors.34 In addition, states

already providing protection were encouraged to examine how

the privilege works in practice, review court decisions, and

consider amendments to provide the maximum confidentiality

protection possible. To date, relatively little legislative activity

has addressed victim-counselor confidentiality issues. Only a few

states with existing privilege laws amended those laws, and

Montana passed a victim-counselor privilege law for the first

time in 1997.35

Anecdotal reports from victim advocates and victim service

providers in the field indicate that unwanted disclosure of counseling records has generally been avoided by informal (i.e., other

than legislative) means.36 Victim service providers who counsel

victims have adjusted their policies and procedures to conform

with the confidentiality limitations in their states. For example,

they take fewer notes to avoid having records subpoenaed.

One issue that has yet to be adequately addressed in several

states is the need to extend the available privilege to include

interpreters who sit in on counseling sessions. A few states, like

Georgia and Colorado, have resolved this issue legislatively.

Under Georgia law, “[w]henever a hearing impaired person

communicates with any other person through the use of an interpreter and under circumstances which make such communications privileged, the presence of the interpreter shall not vitiate

such privilege and the interpreter shall not be required to disclose the contents of such communication.”37 In Colorado, “[i]f a

qualified interpreter is called upon to interpret privileged communications, the interpreter shall not testify without the written

consent of the person who holds the privilege.”38

To protect the confidentiality of counseling communications,

some prosecutors employ a “don’t ask/don’t tell” policy.39 Even in

Pennsylvania, which offers a statutory absolute privilege, the

courts have held that the voluntary release of counseling records

by a victim to the prosecution constitutes a waiver of the privilege.40 The following proposed model language outlines circumstances under which a victim waives the privilege:

A victim does not waive the protections afforded by

this Act by testifying in court or other proceeding.

However, if the victim intentionally partially discloses

the contents of a confidential communication in the

course of testifying, then either party may request the

court or hearing officer to rule that justice requires

that the protections . . . be waived to the extent they

apply to that portion of the communication.41

The threat of disclosure may be especially problematic for victims

when they obtain services from advocates and service providers

within the criminal justice system, who are precluded from coverage under counselor privilege laws because of their connection

with the government. Ordinarily, a defendant’s access to confidential information is limited to information that has been obtained by prosecutors and other government employees. Some

experts recommend that prosecutors be discouraged from inquiring whether a victim has undergone counseling so as not to have

counseling records in their custody, potentially making the

records subject to disclosure requests by defense attorneys. A

more realistic solution might be to encourage prosecutors to seek

a protective order to ensure that any counseling records of which

they become aware will not be subject to disclosure.

Future of Victim-Counselor Privilege

Although little recent legislative activity has related to victimcounselor privilege, the U.S. Supreme Court reviewed the issue

in 1996. In the case of Jaffee v. Redmond,

42 the Supreme Court

recognized a psychotherapist privilege for the first time. Although

no federal psychotherapist-patient privilege law was in effect, the

Court was able to establish the privilege pursuant to Rule 501 of

the Federal Rules of Evidence, which “authorizes federal courts to

define new privileges . . . by interpreting common law principles

in the light of reason and experience.”43 In the course of its opinion, the Court found the four elements traditionally viewed as

necessary to establish a privilege to apply to the psychotherapistpatient privilege. Those elements, as formulated by Dean

Wigmore, are 1) communication must originate in a confidence

that it will not be disclosed; 2) the element of confidentiality

must be essential to the full and satisfactory maintenance of the

relationship between the parties; 3) the relationship must be one

that the community believes ought to be fostered; and 4) the injury that would inure to the relationship by the disclosure of the
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U.S. Supreme Court’s ruling has given victim advocates and victim service providers an opportunity to urge their state legislatures to reexamine and strengthen state victim-counselor

privilege laws so victims can get the counseling they need, secure

in the knowledge that their privacy will be protected.

Notes

1. Bonnie J. Campbell, Preface to U.S. DEPARTMENT OF JUSTICE,

REPORT TO CONGRESS: THE CONFIDENTIALITY OF COMMUNICATIONS BETWEEN

SEXUAL ASSAULT OR DOMESTIC VIOLENCE VICTIMS AND THEIR COUNSELORS:

FINDINGS AND MODEL LEGISLATION (1995) [hereinafter REPORT TO

CONGRESS]. The Violence Against Women Act (VAWA) enacted

in 1994 included provisions directing the U.S. Attorney General

to study and evaluate the manner in which states act to protect

the confidentiality of communications between sexual assault or

domestic violence victims and their counselors. In December

1995, the results of the study were released in this REPORT TO CONGRESS. Although the study focused specifically on sexual assault/

domestic violence victim-counselor privilege, many of its findings can be extended to counseling relationships involving victims of other crimes. A summary of the report can be found in

the National Criminal Justice Reference Service’s Abstracts

Database at AbstractsDB.ncjrs.org.

2. REPORT TO CONGRESS, supra note 1, Model Legislation, Absolute

Privilege § 103. The model legislation applies only to sexual assault and domestic violence victims. Those references have been

purposely excluded whenever language from the model is quoted

to make it applicable to all crime victims; in practice, however, it

may be necessary to limit the protection to victims of violent

crime, because victims of some other crimes may not meet the

legal criteria for privilege. “In conferring a privilege, lawmakers

must assess whether the relationship meets the established criteria for privileged communications. That is, the communication

originated in confidence, confidentiality is essential to the maintenance of the relationship, and the relationship is one that

society deems worthy of protecting.” Mary Ann Largen,

Confidentiality in the Sexual Assault Victim/Counselor Relationship,

in RAPE AND SEXUAL ASSAULT III: A RESEARCH HANDBOOK 214 (Ann

Wolbert Burgess, ed., 1991).

3. For example, ARIZ. REV. STAT. ANN. § 13-4430 (West 2000);

CONN. GEN. STAT. ANN. § 52-146k (West 2001); 735 ILL. COMP.

STAT. 5/8-802.1 (2001); IOWA CODE § 915.20A (2001); MASS. ANN.

LAWS ch. 233, §§ 20J, K (Law. Co-op. 2001); N.J. STAT. ANN. §

2A:84A-22.14 (West 2001); UTAH CODE ANN. § 78-3c-3 (2001);

WYO. STAT. ANN. § 1-12-116 (Michie 2001).

communications must be greater than the benefit that would be

gained thereby for the correct disposal of the litigation.44

More significantly, the Court extended the privilege to a clinical

social worker, finding that “the reasons for recognizing a privilege

for treatment by psychiatrists and psychologists apply with equal

force to treatment by a clinical social worker. . . . Their clients

often include the poor and those of modest means who could not

afford the assistance of a psychiatrist or psychologist . . . but

whose counseling sessions serve the same public goals.”45

This ruling is extremely encouraging for the future of victimcounselor privilege. Already, the U.S. Supreme Court has found

Rule 501 to be, by its own language, open-ended. The Court observed that the rule “did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our

history, but rather directed federal courts to ‘continue the evolutionary development of testimonial privileges.’ ”46 So far, the

Court’s rulings support the recognition of an absolute rather than

a qualified privilege. Although the Supreme Court has not ruled

directly on any qualified privilege laws, its rejection of the balancing component of such laws indicates that they are likely to

be struck down if presented to the Court for review. As the Court

stated in Jaffee, 

Making the promise of confidentiality contingent

upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the

evidentiary need for disclosure would eviscerate the effectiveness of the privilege. . . . [I]f the purpose of the

privilege is to be served, the participants in the confidential conversation “must be able to predict with

some degree of certainty whether particular discussions

will be protected. An uncertain privilege, or one

which purports to be certain but results in widely varying applications by the courts, is little better than no

privilege at all.”47

Thus, the groundwork has been laid for similar findings in cases

involving other types of victim counselors.

Conclusion

A

ll crime victims must be able to communicate freely with

their counselors. Not only is counseling helpful in moving

victims toward recovery, it may be essential, in some cases,

to enable a victim to escape an abusive relationship or to effectively assist in the investigation and prosecution of a crime. The
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PRIVACY OF VICTIMS’ COUNSELING COMMUNICATIONS

4. REPORT TO CONGRESS, supra note 1, Model Legislation § 102(A).

The terms “victim,” “victim counseling center,” and “victim

counselor” are also defined.

5. Commonwealth v. Wilson, 602 A.2d 1290, 1295 (Pa. 1992).

6. Martha F. Davis and Susan J. Kraham, Protecting Women’s

Welfare in the Face of Violence, 22 FORDHAM URB. L.J. 1141,

1150–51 (1995), citing Michael J. Strube and Linda S. Barbour,

The Decision to Leave an Abusive Relationship: Economic

Dependence and Psychological Commitment, 45 J. OF MARRIAGE

AND THE FAM. 785, 786 (1983).

7. Jaffee v. Redmond, 518 U.S. 1, 17 (1996) (citing the Ct. App.,

51 F.3d, at 1358, n.19).

8. For example, ALA. CODE §§ 15-23-40–45 (2001); CAL. EVID. CODE

§§ 1035–1036.2, 1037–1037.7 (Deering 2001); FLA. STAT. chs.

90.5035, .5036 (2000); IND. CODE ANN. §§ 35-37-6-1–11 (Michie

2000); ME. REV. STAT. ANN. tit. 16, §§ 53-A, -B (West 2000); MONT.

CODE ANN. § 26-1-812 (2000); N.M. STAT. ANN. §§ 31-25-1–6

(Michie 2001); 23 PA. CONS. STAT. § 6102 (2001), 42 PA. CONS.

STAT. § 5945.1 (2001); VT. STAT. ANN. tit. 12, § 1614 (2001).

9. For example, ARIZ. REV. STAT. § 13-4430 (2000); IOWA CODE §

915.20A (2001); N.J. STAT. ANN. §§ 2A:84A-22.13–.16 (West

2001).

10. The number of training hours required varies, ranging from

15 hours in Colorado to 40 hours in most of the states with

counselor privilege laws on the books, including Alaska,

California, Illinois, Kentucky, Minnesota, New Jersey, New

Mexico, Pennsylvania, and Wyoming.

11. REPORT TO CONGRESS, supra note 1. The DOJ’s study that included most of the privilege laws currently in effect identified

three degrees of privilege—absolute, semiabsolute, and qualified.

12. FLA. STAT. chs. 90.5035, .5036 (2000); 23 PA. CONS. STAT. §

6116 (2001).

13. ALASKA STAT. §§ 09.25.400, 12.45.049, 18.66.200–.250

(Michie 2001); HAW. R. EVID. 505.5; N.J. STAT. ANN. §§ 

2A:84A-22.13–.16 (West 2001), N.J. R. EVID. 617.

14. ARIZ. REV. STAT. § 13-4430 (2000); CAL. EVID. CODE §§

1035–1036.2, 1037–1037.7 (Deering 2001); N.H. REV. STAT. ANN.

§§ 173-C:1–:10 (2000).

15. In re Pittsburgh Action Against Rape, 428 A.2d 126 (Pa. 1981).

16. Id. at 127.

17. Id. at 150.

18. 42 PA. CONS. STAT. § 5945.1 (2001).

19. See Wilson, 602 A.2d at 1294, n.6.

20. People v. District Court of Denver, 719 P.2d 722 (Pa. 1986);

People v. Foggy, 521 N.E.2d 86 (Ill. 1988).

21. In re Robert H., 509 A.2d 475 (Conn. 1986); Commonwealth

v. Bishop, 617 N.E.2d 990 (Mass. 1993).

22. See Bishop, 617 N.E.2d at 997–98.

23. Commonwealth v. Fuller, 667 N.E.2d 847 (Mass. Sup. Ct. 1996).

24. Commonwealth v. Tripolone, 681 N.E.2d 1216 (Mass. Sup. Ct.

1997).

25. Two cases are currently pending: Commonwealth v. Neumeyer,

718 N.E.2d 869 (Mass. Ct. App. 1999), and Commonwealth v.

Sheehan, 722 N.E.2d 25 (Mass. Ct. App. 2000).

26. For example, People v. Stanaway, 521 N.W.2d 557 (Mich.

1994), cert. denied sub nom. Michigan v. Caruso, 115 S. Ct. 923

(1995).

27. See Stanaway, 521 N.W.2d at 574.

28. See Jaffee, 518 U.S. at 2.

29. People v. Foggy, 521 N.E.2d 86 (Ill. 1988), cert. denied, 486

U.S. 1046 (1988).

About This Series

OVC Legal Series bulletins are designed to inform victim advocates

and victim service providers about various legal issues relating to

crime victims.The series is not meant to provide an exhaustive

legal analysis of the topics presented; rather, it provides a digest of

issues for professionals who work with victims of crime.

Each bulletin summarizes—

■ Existing legislation.

■ Important court decisions in cases where courts have

addressed the issues.

■ Current trends or “hot topics” relating to each legal issue.
OVC Legal Series

30. N.J. STAT. ANN. § 2A:84A-22.13 (West 2001).

31. REPORT TO CONGRESS, supra note 1, Model Legislation § 100.

32. AMERICAN PSYCHOLOGICAL ASSOCIATION, ETHICAL PRINCIPLES OF

PSYCHOLOGISTS AND CODE OF CONDUCT, Standard 5.01 (Dec. 1992);

AMERICAN COUNSELING ASSOCIATION, CODE OF ETHICS AND STANDARDS OF

PRACTICE A.3a (eff. July 1995).

33. REPORT TO CONGRESS, supra note 1, at 18.

34. Id. at 29.

35. MONT. CODE ANN. § 26-1-812 (2000).

36. An informal polling of victim policy advocates from five

mid-Atlantic states was conducted at a Mid-Atlantic Regional

Roundtable held at the offices of the National Center for

Victims of Crime on January 14, 2000, in Arlington, Virginia.

37. GA. CODE ANN. § 24-9-107 (2000).

38. COLO. REV. STAT. § 13-90-209 (2000).

39. W. Murphy, Minimizing the Likelihood of Discovery of Victims’

Counseling Records and Other Personal Information in Criminal

Cases: Massachusetts Gives a Nod to a Constitutional Right to

Confidentiality, 32 NEW ENGLAND L. REV. 983 (1998).

40. Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996).

The OVC Legal Series bulletins were created by the National Center

for Victims of Crime (NCVC) under grant number 1999–VF–GX–K007

awarded by the Office for Victims of Crime, Office of Justice Programs,

U.S. Department of Justice.The opinions, findings, conclusions, and

recommendations expressed in this bulletin are those of the author/

NCVC and do not necessarily represent the official position or policies of the U.S. Department of Justice.

The Office for Victims of Crime is a component of the Office of

Justice Programs, which also includes the Bureau of Justice Assistance,

the Bureau of Justice Statistics, the National Institute of Justice, and

the Office of Juvenile Justice and Delinquency Prevention.

NCJ 192264

41. REPORT TO CONGRESS, supra note 1, Model Legislation §§ 105,

106.

42. See Jaffee, 518 U.S. at 1.

43. Id. at 8 (citing Trammel v. United States, 445 U.S. 40, 47

(1980)).

44. 8 JOHN H. WIGMORE, EVIDENCE § 2285 (McNaughton rev.

1961).

45. See Jaffee, 518 U.S. at 15, 16.

46. Id. at 9.

47. Id. at 17, 18 (citing Upjohn Co. v. United States, 449 U.S.

383, 393 (1981)).