Survivor privacy is a critical value of community-based advocacy programs and the Washington State sexual assault service structure. There are several federal laws that include privacy and confidentiality provisions as well as Washington State specific laws that prohibit the disclosure of victim information by community-based sexual assault advocacy programs. Victim service providers in the United States who are receiving federal funds have some of the strongest confidentiality obligations that exist in the country. The Confidentiality Institute explains survivor privacy, confidentiality, and privilege in this way:
Privacy is an individual choice. Privacy means making choices with your own information so you have control over your reputation and your engagement with the world. Privacy is not about keeping secrets. It is choosing who knows what, how much and when.
Confidentiality is a promise. Confidential professionals promise to respect the privacy choices of individuals they serve so folks can get help, take risks, and avoid losing control of their lives. Confidentiality is not about keeping other people secrets. It is respecting other people’s choices about who knows what, how much and when.
Privilege is a community norm. Communities make laws that protect the privacy choices of individuals working with confidential professionals so neither can be forced to disclose what they shared with each other. Privilege is not about letting people keep secrets. It is building communities where everyone feels safe to get help without fear that getting help will cause harm.
In Washington State
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 (link is external) (the sexual assault victim and advocate privilege) and RCW 70.125.065 (link is external) (records of rape crisis centers are confidential). This means community-based sexual assault 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 involve highly personal information. Because survivors trust advocates 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 their 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?"
It is the advocate responsibility to inform survivors about agency policies regarding confidentiality and Washington State laws about privilege and confidentiality of records. Clients need to be informed under what circumstances the advocate or agency will disclose their information (e.g., informed consent release, mandatory reporting requirement, court order, etc.) and be provided with a copy of the agency's policies.
Mandatory Reporting and Exceptions to Confidentiality
Although there are very strong protections for survivor information, advocates in Washington State are mandated reporters if they suspect a child (anyone under the age of 18) or vulnerable adult is being abused or neglected. Advocates should be well-acquainted with Washington law and procedures for reporting suspected abuse or neglect, including CPS and law enforcement access to records following a mandatory report (RCW 26.44.030 link is external) and should discuss this reporting requirement with all service recipients. Should the advocacy agency need to make a report under this requirement, survivors should expect that the advocate will involve them in the process and keep them informed.
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. The sexual assault advocacy program can assert their privilege to the requesting party and will generally work to fight the subpoena and keep the survivor informed of any legal requests for testimony.
Release of Information / Waiver of Confidentiality
A community-based sexual assault program may only disclose a survivor’s personally identifying or confidential information with a written, time-limited, specific release of information executed with the survivor’s informed consent. Survivors may allow some, but not all, of their information to be shared. Similarly, a survivor may authorize information to be released to some but not other community partners. Sexual assault advocates are not permitted to disclose survivor information to law enforcement agencies, immigration authorities, medical providers, or anyone else who does not work within the sexual assault community-based program (aside from suspected child or vulnerable adult abuse mentioned above) without a court order signed by a judge or without a signed release from the survivor.
Other Systems and Service Providers
Communications between a victim and employees of a law enforcement agency or prosecutor’s office are not confidential because the government has a duty to turn over exculpatory evidence to the defendant. Exculpatory evidence is information that tends to prove the defendant’s innocence and could include statements or personal records the victim gave to an advocate employed by a prosecutor’s office, law enforcement, or other government agency. By contrast, advocates with non-profit agencies typically are not subject to these rules, as they are not part of the prosecution team or a party to the criminal case.