Conn. Gen. Stat. § 52-146k
Type of Privilege: Qualified by statute and judicial decision
Privilege: Conn. Gen. Stat. § 52-146k(b)
- A sexual assault counselor may not disclose any confidential communications made to the sexual assault counselor by a victim in any civil, criminal, legislative, or administrative proceeding without consent of the victim.
- Although the statute states that under no circumstances may the location of the rape crisis center or the identity of the sexual assault counselor be disclosed in any civil or criminal proceeding, in In Re Robert H., 509 A.2d 475, 482 (Conn. 1986), the Connecticut Supreme Court held that the identity of the sexual assault counselor must be disclosed in order to determine whether the counselor meets the statutory training requirements.
Statutory Exceptions to Privilege: Conn. Gen. Stat. § 52-146k(e)(1)-(3)
- In matters of proof concerning chain of custody of evidence.
- In matters of proof concerning the physical appearance of the victim at the time of the assault.
- Sexual assault counselor knows that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed.
In Camera Review: Provided for by judicial decision
- In Re Robert H., 509 A.2d 475, 484-85 (Conn. 1986)—described a procedure for obtaining in camera review of privileged records that was originally set out in the context of the psychotherapist-patient privilege in State v. Esposito, 471 A.2d 949, 956 (Conn. 1984), but was later amended in this case in order to apply to the sexual assault counselor-victim privilege: Defendant must show that there is a reasonable ground to believe that failure to produce the privileged information will impair his right to confrontation.
- If the court finds that defendant has met this burden, the court may give the state an opportunity to obtain consent of the victim for the court to conduct an in camera inspection of the privileged information.
- If the victim will not give consent, the court may strike the victim’s testimony.
- If the victim gives consent, the court may conduct an in camera review of the privileged records.
- If the court finds that there are inconsistent and relevant statements of the victim when compared to the victim’s direct testimony, the victim must decide whether to consent to release of such material to the defendant or have the victim's testimony stricken from the record.
- Interpretations, recollections, and counseling notations of the sexual assault counselor do not qualify as “statements of the victim”.
- "Relevant statements of the victim" are only those statements which are verbatim accounts by the victim given to the sexual assault counselor and which are directly related to an essential element of the crime for which the respondent is standing trial.
- "Inconsistent" does not refer to a lack of complete uniformity in details as compared to trial testimony.
- If no inconsistent and relevant statements are found in the privileged records, the records will be sealed and made available for inspection upon appellate review.
Holder of Privilege:
- Only victim may waive the privilege. Conn. Gen. Stat. § 52-146k(b)
- Sexual Assault v. Connecticut Sexual Assault, No. 70196, 1994 LEXIS 830, at *4 (Conn. Super. Ct. Mar. 30, 1994)
- A rape crisis center has standing to sue for a violation of the confidentiality of a sexual assault victim’s records.
Waiver of Privilege:
- Only the victim may waive the privilege. Conn. Gen. Stat. § 52-146k(b)
- If victim is deceased or incompetent, victim’s guardian or the executor of victim’s estate may waive the privilege. Conn. Gen. Stat. § 52-146k(c)
- A minor may knowingly waive the privilege established by this section. In any instance where the minor is, in the opinion of the court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, provided such parent or guardian is not the defendant and does not have a relationship with the defendant such that he has an interest in the outcome of the proceeding. Conn. Gen. Stat. § 52-146k(d)
- Information, including any information received by, and any advice, report, or working paper given or made by a sexual assault counselor in the course of his or her relationship with the victim, transmitted between a sexual assault victim and a sexual assault counselor in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than any person who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purposes for which such counselor is consulted. Conn. Gen. Stat. § 52-146k(a)(3)
Rape Crisis Center:
- Any office, institution, or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and legal advocacy, and follow up counseling. Conn. Gen. Stat. § 52-146k(a)(4)
Sexual Assault Counselor:
- Any person engaged in a rape crisis center who is a certified counselor by the sexual assault center which provided the training, is under the control of a direct services supervisor of a rape crisis center, and whose primary purpose is to advocate for, counsel, and assist victims of sexual assault. A sexual assault counselor may also be a member of the armed forces of the state or the United States who is trained and certified as a victim advocate or a sexual assault prevention coordinator in accordance with the military’s sexual assault prevention and response program. Conn. Gen. Stat. § 52-146k(a)(5)
- May also be a member of the armed forces of the state or the United States who is trained and certified as a victim advocate or a sexual assault prevention coordinator in accordance with the military’s sexual assault prevention and response program. Conn. Gen. Stat. § 52-146k(a)(5)(B)
Training Requirements for Sexual Assault Counselors:
- At least 20 hours of training including, but not limited to, the dynamics of sexual assault and incest, crisis intervention, communications skills, working with diverse populations, an overview of the state’s criminal justice system, information about hospital and medical systems, and information about state and community resources for sexual assault victims. Conn. Gen. Stat. § 52-146k(a)(5)(A)(i)
- Must be certified as a counselor by the sexual assault center that has provided the training. Conn. Gen. Stat. § 52-146k(a)(5)(A)(ii)
- A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical, or emotional condition caused by a sexual assault. Conn. Gen. Stat. § 52-146k(a)(6)