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National Protocol - Confidentiality
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Confidentiality

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Recommendations at a glance for jurisdictions to maintain confidentiality:

  • Be sure jurisdictional policies address the scope and limitations of confidentiality as it relates to the
    examination process and with whom information can be legally and ethically shared.

  • Increase the understanding of relevant confidentiality issues.

  • Consider the impact of the federal privacy laws regarding health information on victims of sexual assault.

  • Strive to resolve intrajurisdictional conflicts.

Be sure jurisdictional policies address the scope and limitations of confidentiality as it relates to the examination process and with whom information can be legally and ethically shared.

The confidentiality of records (as well as forensic evidence and photographic and video images) is intricately
linked to the scope of patients’ consent. Members of a SART/SARRT or other collaborating responders
should inform victims of the scope of confidentiality with each individual responding to the sexual assault
victim and be cautious not to exceed the limits of victim consent.

Increase the understanding of relevant confidentiality issues.

Individuals responding to the sexual assault victim need education on the basics of maintaining the confidentiality of their patients (e.g., knowing what information is confidential and with whom confidential data can be shared, and being aware of their surroundings and who may be listening when discussing cases). They also should build their understanding of the scope and limitations of confidentiality of each agency and responder involved.

In addition, individuals responding to sexual assault victims should be aware of the laws in their jurisdiction
pertaining to privileged communications.1 More than half of the states have laws in place providing some
level of privilege to the communications of sexual assault/rape crisis and domestic violence counselors. A
few states’ laws apply to victim counselors in general. In most states, counselors must complete a certain
number of training hours to qualify for the privilege. However, privileges vary from state to state.

Responders should be aware that victims in the military who choose restricted reports can confidentially
speak with a sexual assault victim advocate, a sexual assault response coordinator, military chaplain, or
other specified military professional. Jurisdictions should be careful in their local response to protect any
privileges that are available to victims. This can be done by limiting who speaks with the victim at each stage
of the process, who will be present during discussions and/or interviews, and who will be the recordkeeper or notetaker.

In some jurisdictions, patients who are minors have fewer or more limited confidentiality rights than adults.
For example, in some jurisdictions, minor patients have the right to grant or withhold consent to a forensic
examination but not to keep the results of the exam private from their parent or legal guardian.

Involved responder should be able to explain the following to patients.

  • Community-based advocates usually can provide patients with some level of confidentiality
    (depending upon applicable jurisdictional statutes). It is important to convey to patients the scope
    and limits of confidentiality of this communication. System-based advocates (such as those based in
    police departments, prosecutor’s offices, or military installations) usually have limited or no ability to
    keep information confidential.

  • Absent a court order, patients’ medical records are confidential—exam facilities typically have
    policies in place to protect these records. It is important that patients understand the scope and limits
    of confidentiality of these records.

  • If the assault is reported to law enforcement, health care providers provide to the criminal justice
    system information collected during the examination that is related to forensic evidence.

  • If the victim chooses to get an exam, but not make a police report, the evidence collection kit is
    typically held in a secure setting for a period of time as determined by jurisdictional policy. Patients’
    identity should not be revealed to law enforcement. Patients usually need to make an official report
    by the end of the designated period of time or the evidence and information will be destroyed.

  • Information that patients share with law enforcement representatives, prosecutors, justice system
    based advocates, and adult/child protective services becomes part of the criminal justice record. This
    record is typically available to investigators and prosecutors handling the patient’s case. It also may
    have to be provided to the defense pursuant to the government’s discovery obligations2 (although
    prosecutors may request the court to shield certain information from the defense, such as history of
    prior pregnancies, abortions, and STIs).3

  • Each case potentially involves individuals from different agencies responding to the sexual assault
    victim that may have their own confidentiality policies (e.g., school counselors and mental health
    providers).

  • Both prosecutors and defense attorneys can call witnesses, including responders, to testify in court;
     Court documents and proceedings are generally matters of public record, with the exception of
    certain excluded materials (e.g., some states’ statutes prohibit victim contact information from
    appearing on public court documents).

  • Patients may at some point wish to view or obtain applicable medical records and/or law
    enforcement reports. They should have access to such documentation, and exam site and
    jurisdictional procedures for accessing this data should be conveyed to patients.

  • Military members can confidentially4 report being sexually assaulted to specified officials within the
    military and therefore can be eligible to receive medical care, counseling, and victim advocacy
    services without requiring command notification or triggering the investigatory process. This is known
    as restricted reporting. Release of the information regarding the sexual assault to anyone other than
    the specified officials who may receive a restricted report will result in the loss of confidentiality for
    the victim and command and law enforcement will have to be notified of the sexual assault.

 

 Table of Contents Confidentiality privacy laws

1 Traditionally, many types of communication have been protected from disclosure in court. These include communication between
husband and wife, physician and patient, attorney and client, clergy and parishioner, and psychotherapist and patient. Confidential
communication generated in the course of a counseling relationship has more recently been afforded some statutory protection. In
general, victim-counselor privilege laws enable counselors (such as community-based victim advocates) to maintain confidentiality of
information revealed to them. This does not usually apply to system-based advocates, such as those in law enforcement departments or
prosecutor’s offices. In addition to preventing counselors from testifying in court, many privilege laws extend protection to their written
records. (Drawn from Privacy of Victims’ Counseling Communications, Office for Victims of Crime, Legal Series, Bulletin #8 (November
2002), pp. 1–2.)

2 Discovery in a criminal case is the turning over of any evidence or information that the prosecutor is obligated by jurisdictional statute
or case law to turn over to the defense. (Drawn from electronic communications with Norm Gahn, Assistant District Attorney, Office of
the District Attorney for Milwaukee County, Wisconsin, during the fall of 2003.)
3 Depending on jurisdictional law, law enforcement reports and reports of other governmental agencies may be subject to open public
records laws or Freedom of Information Act laws. In such instances, jurisdictional policy would govern when such information could be
released to the general public upon request. (Drawn from electronic communications with Robert Laurino, Deputy Chief Assistant
Prosecutor, Essex County Prosecutor’s Office, New Jersey, during the fall of 2003.)
4 Within the U.S. Department of Defense’s Restricted Reporting Policy, a military member may make a restricted report to a Sexual
Assault Response Coordinator (SARC), victim advocate, or health care provider.

 

 

 

 

 

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