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Sexual Assault Counselor-Victim Privilege

Under Florida Statute Section 90.5035, the sexual assault counselor-victim privilege provides that any communication between a sexual assault counselor or trained volunteer, and a victim is “confidential” and privileged if it meets the statutory definition.

In many rape or sexual assault cases the court must balance the victim’s rights against the defendant’s right to a fair trial. If you are charged with a sexually motivated crime, then contact the criminal defense attorneys at the Sammis Law Firm in Tampa, Hillsborough County, FL.

Call (813) 250-0500 to talk about your case today.

Victim-Counselor Privilege in Florida

The victim-counselor privilege has been enacted in at least 23 states. See Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women, 29 Fam. L.Q. 273, 296 n.131 (1995).

Some statutes create only qualified privileges, in that they permit disclosure of communications under certain circumstances including when the defendant’s factual showing of a need for the information and a court’s determination that the probative value of the records is outweighed by the victim’s privacy interest.

Florida’s statute on the sexual assault counselor-victim privilege acts as an absolute privilege. Even in cases in which the defendant has made pretrial claims of constitutional entitlement to privileged information the courts have refused to allow such disclosure under most circumstances.

“Confidential Communications” with Sexual Assault Counselor or Trained Volunteer

In many sexual battery cases, the alleged victim will seek out the services of a sexual assault counselor or a trained volunteer. The sexual assault counselors often work at private or public rape crisis centers.

The privilege even applies to a “trained volunteer” who is defined under Florida Statute Section 90.5035 as a person who volunteers at a rape crisis center, is supervised by members of the staff of the rape crisis center, has completed thirty 30 hours of training in assisting victims of sexual violence and related topics provided by the rape crisis center, and is included on a list of volunteers that is maintained by the rape crisis center.

Purpose of Securing Advice from Sexual Assault Counselor

The purpose of securing assistance, counseling or advice must concern an emotional, physical or mental condition caused by one of the following crimes:

  • sexual battery;
  • sexual assault;
  • alleged sexual assault or sexual battery, or
  • an attempted sexual assault or sexual battery.

Public Policy Behind Sexual Assault Counselor-Victim Privilege

The public policy behind this absolute privilege involves the fact that although counseling support may assist victims in deciding to report an attack, the role of the counselor is not to investigate a crime.

Rather, the counseling process allows victims to talk in detail about what happened, to express their most personal thoughts and feelings so that they come to understand their reactions to the event. This privilege must often be balanced against the rights of the accused to a fair trial against an allegation of a sexually motivated crime.

Section 90.5035 was designed to foster the state’s interest in the recovery and well-being of the alleged victims by protecting the relationship that is designed to help the alleged victim.

This article was last updated on Tuesday, December 18, 2018.

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