Confidentiality is a foundational tenet of a trauma-informed, victim-centered response to sexual violence. Confidentiality is a principle codified in both federal and state law, is a provision under several federal grants, and is also an ethical obligation under professional licensure and certification requirements for some disciplines. Confidentiality may, to some, appear as an obstacle to effective collaboration. With a proper framework in place, advocates and law enforcement officers will:
Be prepared to explain their limits to confidentiality to victims,
know the laws, rules, and regulations governing the way case information is shared,
have a plan for handling situations in which case information may be discussed, and
pause to ensure that confidentiality and victim privacy are not violated when discussing case information.
Those committed to building a trauma-informed, victim-centered response must understand both the policy considerations behind confidentiality and the ways in which confidentiality benefits the partnership between advocates and law enforcement and the empowerment of victims.
Confidentiality supports a victim-centered response by:
01
Increasing victim autonomy (allowing the victim to choose when, how, and with whom information is shared).
02
Increasing the victim’s psychological and physical safety as disclosure and reporting may result in threats of harm by the perpetrator or community at large.
03
Decreasing potential person and societal consequences (i.e. discrimination at work or in housing, alienation from family or community, and negative impacts to a victim’s educational career).
Confidentiality benefits collaboration between law
enforcement and victim advocates by:
01
Protecting communications between a victim and privileged professionals from scrutiny by the perpetrator, the court, the defense, and the general public.
02
Building trust between the victim, service providers, and systems may increase a victim’s willingness to participate in the criminal justice process.
03
Building legal and ethical checks and balances to ensure the protection of a victim’s right to control how and when their information is shared and discussed.
Confidentiality is a concern for advocates and law enforcement when case information is discussed. Case information is any information that is considered private or confidential under federal law, state law, certain funding sources, and/or professional licensure and certification requirements.
Funding Requirements
Along with state legal protections, certain federal grants like those funded because of the Violence Against Women Act of 1994 contain strict confidentiality requirements. These grant programs include the Victim of Crimes Act Grant (VOCA), Sexual Assault Services Formula Grant Program (SASP), and the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Grant. Along with internal record keeping requirements, associated federal regulations prohibit sharing any information without a release of information (ROI) from the victim.
Rural Communities
Confidentiality in rural areas can be difficult. Not only are services scarce, but victims and survivors may be seen entering or leaving a service provider, which potentially ruins confidentiality. Maybe the survivor’s child is on the basketball team at school, and the local prosecutor is the coach. Or maybe the defense attorney has a sibling who lives next door to the victim. Blurred lines and weak boundaries can happen without intentionally trying to do so. We recommend reviewing the following resources:
Victim Rights Law Center – Tips: Protecting Survivor Privacy in Rural Areas:
While confidentiality laws protect victim’s information within the confines of their experience, there are additional legal protections provided by the law that are important to explore.
While confidentiality laws protect victim’s information within the confines of their experience, there are additional legal protections provided by the law that are important to explore.
Privilege
One of the largest differences between community-based and systems-based advocates is the extension of legal privilege, and the “Victim Advocate” title does not automatically grant legal protection. In other words, any information a survivor provides to a system-based advocate, while remaining confidential, is not privileged and may be used against them.
Legal privilege in the United States refers to certain protections that prevent specific communications or information from being disclosed in legal proceedings. These privileges are designed to encourage openness and confidentiality between parties, such as attorneys and clients, without the fear of forced disclosure.
This is because system-based advocates are employees of the government.
This is because system-based advocates are employees of the government.System-based advocates typically do not qualify for counseling privilege, so their private communications with victims – and the written records documenting their services – typically cannot be guaranteed to remain confidential. In other words, if a system-based advocate is asked for information by a police officer or prosecutor, it will typically need to be shared, even if it was learned during a private conversation with the victim. This information will then potentially be shared with the defense. The same is true for anything the system-based advocate observes or learns about the victim or case, not just what takes place in their private communications.
It is important that these differences in service scope do not create an adversarial relationship between community-based and system-based advocates. BOTH services are needed to protect victims, but it’s important for all involved to know and understand their primary roles. Because even well-intentioned professionals can end up doing something that challenges the victim’s legal safety.
Implications of Confidentiality
As noted above, victims engaged with rape crisis center services are granted confidentiality and privilege by Indiana law, and through federal grants that they may be receiving. This means that victim service providers are prohibited from sharing information about anyone receiving services, regardless of who is asking. In larger organizations, this restriction even extends to other types of employees within that agency.
Victim service providers understand that during an investigation time is of the essence, and many law enforcement officers become frustrated when a victim advocate or other staff member won’t give the officer information about a victim. Even if the piece of information seems harmless, the legal protections are in place to keep the victim safe—not because the victim service provider wants to be difficult. In the same way a lawyer cannot, and would not, give an officer any information about their client, victim advocates enjoy the same confidentiality and privilege protections for theirs.
Everyone involved should understand that there are real implications for a service provider unlawfully giving out victim information. The service provider could face legal penalties brought by the state or they could lose their funding, and the individual who disclosed could face civil legal penalties and loss of licensure, if applicable.
Indiana Colleges and Universities
While some Indiana colleges and universities have separate police departments, any school receiving federal funding must also comply with sexual assault prevention, response, and reporting requirements as provided by federal regulations such as Title IX, the Clery Act, and the SAVE Act. Schools may also provide separate victim advocate services through a Student Affairs or similar administrative office. These programs are not required by federal regulations, though.
Two key points are:
01
Colleges and Universities are not required to provide sexual assault victims with community-based advocate resources. Current laws allow schools to handle all sexual assault claims internally, this includes initial reports, investigations, and discipline. Victims can, and in many cases, must seek out community-based advocates as well as report to law enforcement on their own.
02
Indiana law provides privileged communication between victims and some university staff and students, if they are part of a named advocacy program. No other faculty, staff, or students enjoy that communication privilege and legal protection.
