34 U.S.C. § 12312 — Confidentiality of communications between sexual assault or domestic violence victims and their counselors

submitted 32 years ago by Pub. L. 103-322 to r/title-34-CRIME-CONTROL-AND-LAW-ENFORCEMENT · 433 words · no verdicts yet

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The Attorney General must study how states protect the privacy of victim-counselor communications. The Attorney General must then draft model legislation for stronger protection. Within a year, the Attorney General reports findings to Congress, and the Judicial Conference reviews federal evidence rules.

(a) The Attorney General must: (1) study and evaluate how states have protected the confidentiality of communications between sexual assault or domestic violence victims and their therapists or trained counselors; (2) develop model legislation giving those communications the maximum protection possible within constitutional limits, weighing: (A) the risk that counseling programs can't help victims recover if there's no guarantee the records stay confidential; (B) whether an absolute privilege is appropriate -- it would guarantee the most confidentiality, but might violate a criminal defendant's constitutional right to get and present evidence that could clear them; and (C) what limits short of an absolute privilege would best protect counseling programs, including whether disclosure should require, at minimum, a defendant showing a compelling need for the records plus safeguards against unnecessary or harmful disclosure; and (3) prepare and share the study's findings and the model legislation with state authorities. (b) Within one year of September 13, 1994, the Attorney General must report to Congress the study's findings and model legislation, plus recommendations on whether further federal action is needed. (c) The Judicial Conference of the United States must evaluate and report to Congress its views on whether, and how, the Federal Rules of Evidence should be amended to properly protect the confidentiality of sexual assault victims' communications with their therapists or counselors in federal court.

the actual law source: uscode.house.gov ↗public domain

(a) Study and development of model legislation

The Attorney General shall—

(1)

study and evaluate the manner in which the States have taken measures to protect the confidentiality of communications between sexual assault or domestic violence victims and their therapists or trained counselors;

(2)

develop model legislation that will provide the maximum protection possible for the confidentiality of such communications, within any applicable constitutional limits, taking into account the following factors:

(A)

the danger that counseling programs for victims of sexual assault and domestic violence will be unable to achieve their goal of helping victims recover from the trauma associated with these crimes if there is no assurance that the records of the counseling sessions will be kept confidential;

(B)

consideration of the appropriateness of an absolute privilege for communications between victims of sexual assault or domestic violence and their therapists or trained counselors, in light of the likelihood that such an absolute privilege will provide the maximum guarantee of confidentiality but also in light of the possibility that such an absolute privilege may be held to violate the rights of criminal defendants under the Federal or State constitutions by denying them the opportunity to obtain exculpatory evidence and present it at trial; and

(C)

consideration of what limitations on the disclosure of confidential communications between victims of these crimes and their counselors, short of an absolute privilege, are most likely to ensure that the counseling programs will not be undermined, and specifically whether no such disclosure should be allowed unless, at a minimum, there has been a particularized showing by a criminal defendant of a compelling need for records of such communications, and adequate procedural safeguards are in place to prevent unnecessary or damaging disclosures; and

(3)

prepare and disseminate to State authorities the findings made and model legislation developed as a result of the study and evaluation.

(b) Report and recommendations

Not later than the date that is 1 year after September 13, 1994, the Attorney General shall report to the Congress—

(1)

the findings of the study and the model legislation required by this section; and

(2)

recommendations based on the findings on the need for and appropriateness of further action by the Federal Government.

The Judicial Conference of the United States shall evaluate and report to Congress its views on whether the Federal Rules of Evidence should be amended, and if so, how they should be amended, to guarantee that the confidentiality of communications between sexual assault victims and their therapists or trained counselors will be adequately protected in Federal court proceedings.

Source credit: (Pub. L. 103–322, title IV, § 40153, Sept. 13, 1994, 108 Stat. 1921.)

history & why it existsrecord from the source credit

1994Enacted · Pub. L. 103-322 · 108 Stat. 1921

A history note hasn’t been published yet. The record shows enactment by Pub. L. 103-322 on 1994-09-13.

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