Sometimes, a court or an attorney will try to get an advocate to testify about the confidential communications between a victim and an advocate. When this happens, the sexual assault program or victim may receive a legal document called a subpoena.
A subpoena is a legal document issued either by the court or a lawyer formally requesting the appearance of a witness at a court hearing, a deposition or administrative hearing. In Washington, there are two types of subpoenas: a subpoena to appear and testify and a subpoena “duces tecum” that requires the witness appear with documents. CR 45(a) & (b).
A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness, or by giving them a copy, or by leaving such copy at their home. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit. CR 45(c).
Superior Court Rule 45 does not specifically require that a subpoena provide a witness with a certain number of days before being required to testify at a deposition or trial. However, logic dictates that there must be enough notice to allow for objection to a subpoena.
Failure to comply with a subpoena may be considered contempt of court and can result in arrest. It is not advisable to ignore a subpoena, even if you or your agency feels it is improper or was not effectively served. Your agency should have a policy for how to respond to a subpoena. Often a phone call to the requesting party or a letter from an attorney on behalf of your agency explaining the confidentiality laws will be enough to get the subpoena withdrawn. It is also important to always inform the victim that you have received a subpoena for their information — regardless of whether your agency believes the subpoena is valid or enforceable.
Your agency may wish to fight the subpoena in court — this is typically done by an attorney for your agency filing legal documents with the court asking that the subpoena be set aside. This is called a “motion to quash” the subpoena. Generally, attorneys for your agency will argue that because of the sexual assault advocate privilege and/or the confidentiality of rape crisis center records, the disclosure of confidential information required by the subpoena is not allowed. A motion to quash can also be based on improper service, improper procedure used to request the materials, or a variety of other laws that may protect the information.
Ideally, your agency will have established a relationship with an attorney or attorneys in your community who are willing to offer their legal services pro bono (for free) to the rape crisis center. If your agency has decided to fight a subpoena in court, this is a good time to call upon those relationships, (or create one) to obtain legal assistance.