The Domestic Violence Victim Advocate Privilege–How Does It Apply?
RCW 5.60.060 – Privileged Communication: Who is Disqualified?
This statute, as its name indicates, identifies whose communications are privileged. Privileged means that neither party to the relationship may testify in open court, nor otherwise disclose, any communication made during the course of that relationship without the other party’s consent. Broadly, the relationships covered by this statute are: spouses/domestic partners, priests & penitents, attorneys & clients, doctors & patients, counselors/therapists, domestic violence advocates & victims, and sexual assault advocates & victims.
The statute allows this privilege to be waived with the consent of both parties. It also excepts civil and criminal actions between spouses, from this privilege, whether this action began before the marriage or not. If there is a criminal proceeding by one spouse for actions where a child of the other spouse is a victim, then communication is no longer privileged. Even after a marriage is terminated, any communication that took place during that marriage is protected by this privilege and to be treated as confidential.
In the case of the domestic violence advocate & victim privilege, “domestic violence advocate” is defined as, “an employee or supervised volunteer from a community-based domestic violence program or human services program that provides information, advocacy, counseling, crisis intervention, emergency shelter, or support to victims of domestic violence and who is not employed by or under the direct supervision of, a law enforcement agency, a prosecutor’s office, or the child protective services section of the department of social and health services as defined in RCW 26.44.020.”
As the proceeding suggests, there is an important distinction between domestic violence advocates who are employed by law enforcement, and those who are not. The privilege only applies to domestic violence advocates who are not employed by law enforcement.
It should be noted that this privilege is not absolute; a DV victim can waive his/her communication privilege when he/she discloses the contents of privileged communications with a third-party (e.g. victim tells defense counsel about something that she told the DV advocate about). Following cases holding that attorney-client privilege is waived if a client chooses to testify as to statements that are otherwise privileged, holding that marital privilege is waived if the communicating spouse chooses to testify as to statements that are otherwise privileged, and holding that physician-patient privilege is waived if the patient chooses to testify as to statements that are otherwise privileged, it has been argued that the victim-advocate privilege is waived if the victim chooses to testify as to statements that are otherwise privileged.
In summary, nformation disclosed by a victim to a community domestic violence hotline is privileged, but not information disclosed to a district attorney, county prosecutor, sheriff, police officer, etc. By combining the exclusion of law enforcement/prosecutors from this privilege with the criminal proceeding exception, it can be inferred that victims of domestic violence should not expect confidentiality when confiding in prosecutors/law-enforcement during domestic violence criminal proceedings.
