II

103D CONGRESS

2D SESSION S. 2315

To require the Attorney General to develop model legislation for the States

to assure confidentiality of communications between victims of sexual

assault or domestic violence victims and their counselors, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

JULY 26 (legislative day, JULY 20), 1994

Mr. HATCH (for himself and Mr. KENNEDY) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To require the Attorney General to develop model legislation

for the States to assure confidentiality of communications between victims of sexual assault or domestic

violence victims and their counselors, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Rape and Assault Vic5 tims Counseling Protection Act’’.

6 SEC. 2. SENSE OF THE SENATE.

7 It is the sense of the Senate that—
2

•S 2315 IS

1 (1) counseling programs for victims of sexual

2 assault and domestic violence, in which therapists

3 and trained counselors help victims cope with the

4 trauma of these crimes and recover from their debili5 tating effects, serve the valuable dual goals of pro6 moting the emotional and physical well-being of vic7 tims and ensuring the reporting and prosecution of

8 such crimes;

9 (2) such counseling programs, at rape crisis

10 centers and elsewhere, can achieve these benefits

11 only if the victims have an expectation that the

12 records of the counseling sessions will be kept con13 fidential, because otherwise victims fail to develop

14 the relationship of trust with their counselors that is

15 essential to effective treatment or decline to partici16 pate in counseling programs altogether;

17 (3) States have adopted a variety of approaches

18 to protecting the confidentiality of communications

19 between victims of sexual assault or domestic vio20 lence and their counselors, including the creation of

21 an absolute privilege for such communications, quali22 fied privileges that allow defendants in criminal

23 cases to obtain such communications in certain cir24 cumstances and subject to certain procedures, and

25 balancing tests that weigh the probative value of
3

•S 2315 IS

1 such communications against the effects of disclo2 sure on the victim and the treatment relationship;

3 (4) in some States, however, criminal defend4 ants in sexual assault cases have been successful in

5 obtaining court orders requiring the production to

6 defense counsel of records of confidential counseling

7 sessions with victims based on a showing that such

8 records are merely likely to be relevant to an issue

9 in the case;

10 (5) although the best assurance that sexual as11 sault and domestic violence counseling programs will

12 be successful is an absolute privilege barring the dis13 closure of records of such sessions or testimony

14 about them, some courts have held that an absolute

15 privilege, by absolutely denying criminal defendants

16 the opportunity to obtain exculpatory evidence and

17 present it at trial, violates their rights under the

18 Federal and State constitutions; and

19 (6) in order to ensure that the effectiveness of

20 sexual assault and domestic violence counseling pro21 grams will not be undermined by the disclosure of

22 confidential communications with victims, no Fed23 eral or State court, in a criminal or civil action,

24 should order the disclosure of the records of con25 fidential communications between victims of such
4

•S 2315 IS

1 crimes and their therapists or trained counselors, or

2 compel testimony from such therapists or counselors

3 with respect to the substance of their counseling, un4 less, at a minimum, the moving party has dem5 onstrated a particularized and compelling need for

6 such records or testimony, and the court has estab7 lished adequate procedural safeguards against un8 necessary or damaging disclosures.

9 SEC. 3. REPORT AND DEVELOPMENT OF MODEL LEGISLA10 TION.

11 (a) STUDY AND DEVELOPMENT OF MODEL LEGISLA12 TION.—The Attorney General shall—

13 (1) study and evaluate the manner in which the

14 States have taken measures to protect the confiden15 tiality of communications between sexual assault or

16 domestic violence victims and their therapists or

17 trained counselors;

18 (2) develop model legislation that will ade19 quately protect the confidentiality of such commu20 nications; and

21 (3) prepare and disseminate to State authorities

22 the findings made as a result of the study and eval23 uation.

24 (b) REPORT.—Not later than 1 year after the date

25 of enactment of this Act, the Attorney General shall report
5

•S 2315 IS

1 to the Congress the findings of the study and evaluation

2 required by this section and the need for and appropriate3 ness of further action by the Federal Government.

4 SEC. 4. REVIEW OF FEDERAL EVIDENTIARY RULES.

5 Not later than 1 year after the date of enactment

6 of this Act, the Judicial Conference shall complete and

7 submit to Congress a study evaluating whether the Fed8 eral Rules of Evidence should be amended, and if so how,

9 to guarantee that the confidentiality of communications

10 between sexual assault victims and their therapists or

11 trained counselors will be adequately protected in Federal

12 court proceedings.

Æ