Responding to Subpoenas

What You Need to Know About the Law

Generally the communications between a survivor of sexual violence and a sexual assault advocate at a community sexual assault program are confidential and protected by state law as private communications, also referred to as privileged communications. The two laws related to the confidentiality of communications between a survivor of sexual violence and a sexual assault advocate are RCW 5.60.060 (the sexual assault victim and advocate privilege) and RCW 70.125.065 (records of rape crisis centers are confidential). Last year, Washington also passed a privilege law giving victims of domestic violence similar privileged communications protection.  Thus community based advocates at domestic and sexual violence programs in Washington State have the ability to assert privilege to protect their conversations and records from disclosure in court as well.

The confidences shared between a sexual assault victim and an advocate often involve highly personal information which may include intimate details about the assault, perhaps prior victimization or substance abuse issues, and their feelings about what has happened to them. Because survivors trust us with this very private and personal information, it is our obligation to make every effort to ensure that their information remains private and confidential. The privilege law protects the information the survivor shares with the advocate. Thus if the privilege is to be waived, it must be done by the survivor/client. This means it is always the survivor’s decision when and if to release any of her private information after fully understanding the consequences of that choice. Since the information and privilege belong to the survivor, the first question we should always ask when faced with a request for client information is, “What does the survivor want?”

Legal Privilege

Privilege laws are rules of evidence that prevent certain confidential information from being disclosed. In general, privilege laws protect the confidentiality of information shared between a professional and a client, such as between doctors and their patients and attorneys and their clients. The law states that a sexual assault advocate cannot be forced to share information about her conversations with a victim. However, there are exceptions to this such as informed consent release, mandatory reporting requirements, and a threat of harm to self or others, or a court order.

Additionally because the specific language of the statute uses the word “may” instead of “shall” e.g. “a sexual assault advocate may not, without the consent of the victim, be examined as to any communication made between the victim and the sexual assault advocate,” the privilege is a qualified one, not absolute. This means the sexual assault victim – advocate privilege is not bulletproof and the client’s private information may be released despite our best efforts to protect it. Therefore even though the confidentiality of the communications between victim and advocate is protected by state law and should be respected, rape crisis centers cannot promise a client that advocates are immune from being subpoenaed and compelled to testify.

Confidentiality of Rape Crisis Center Records

The confidentiality of rape crisis center records in Washington is also qualified. This means that if the defense lawyer asks for the client’s records, (by making a motion in court), the judge may decide to review the evidence (client records) and determine whether there is any information that is relevant to the case. This is called an in camera review. While conducting the in camera review, the judge performs a balancing test weighing the harm to the victim if the information is disclosed and allowed into court as evidence against how probative the evidence may be for the defendant. Probative means tending to prove or disprove.

The law in Washington that recognizes the confidentiality of a survivor’s records at a rape crisis center is RCW 70.125.065. It states that unless certain steps are taken to request the rape crisis center records in court, they are confidential and are not subject to disclosure. Because the confidential records kept by a rape crisis center may be subject to review by a judge and possible disclosure, it is critical that agencies have policies guiding recordkeeping of client information. Some important considerations for recordkeeping policies include but are not limited to the following:

• What information is recorded and why?
• What materials and documents are kept and where?
• Who has access to client files?
• What is the clients’ understanding of their file?
• How does a client access their file or get a copy?

Developing a Policy for Responding to Subpoenas

It is critical that community based agencies have a policy on how to deal with receiving subpoenas so that staff and volunteers know what to do. At a minimum an effective policy should address how the victim will be notified about the request and how the subpoena will be processed and responded to by the agency. Notifying the victim is important and deserves thought before contacting them and simply informing them because it can be very upsetting for a client to receive this information. Well thought out policies will likely incorporate specific commitments that the agency will provide the client such as how far the agency will go to fight a subpoena.

It is important that the agency has the ability to do what it says it will do in its policy. For example, if your agency’s policy states that it will take every legal action necessary to fight any and all subpoenas, then your agency should have a plan for obtaining the legal services to do so – such as through relationships with attorneys who provide pro bono work for your agency or the funds to pay for legal representation. Similarly the policy should also address how to facilitate a client’s agreement to have their information released. At a minimum, the agency must obtain the client’s informed consent and a written release of information.

Clients should also be informed that private information they share with the agency will be kept confidential and that there are also some risks of disclosure, such as through legal proceedings or by a waiver of privilege. As advocates, it is our responsibility to inform survivors of the differences between agency policies regarding confidentiality and Washington State laws about privilege. Clients need to be informed under what circumstances the advocate or agency will disclose their information (e.g., informed consent release, mandatory reporting requirement, threat of harm to self or others, court order, etc) and be provided with a copy of the agency’s policies.

Related Content

• Recorded Webinar: Responding to Subpoenas, (2008)