Victims of sexual assault may share information related to that victimization (the details of the assault, the trauma in the aftermath, etc.) with many different professionals as they navigate the criminal justice system – law enforcement, prosecution, SANEs, victim advocates, etc.– and/or seek services to heal from the victimization. Each professional has different obligations to maintain the privacy of those communications under laws respecting confidentiality and/or privilege. Victims must understand the parameters of privacy that relate to their communications. It is each professional’s obligation to ensure that victims (clients, patients, etc.) understand the extent to which the information they share can and will remain private. The next several pages will explain what is meant by “confidential” and “privileged” information, confidentiality and privilege within the advocate-client/victim relationship, and how confidentiality and privilege are waived.

There is a difference between confidential material and privileged material:

Confidentiality: A duty, imposed by ethical or legal obligations.

Privilege: A right, owned by the person supplying the information – the client/patient/victim. Only the owner of the privilege can waive it.

Waiver: Both confidentiality and privilege can be waived by the person who holds it. There are also circumstances in which a court can order the disclosure of confidential material or can deem that a privilege has been pierced and therefore the material can be disclosed.

Within the criminal justice system, it is essential that all victims understand that they do not have privilege in their communications with the prosecutor or law enforcement. Prosecutors have an absolute and unyielding responsibility to turn over to defense any information and evidence that is or could be exculpatory (that which tends to negate the defendant’s guilt) or that may be materially beneficial to the defendant’s case. That includes all such information in the prosecutor’s possession, whether received directly from the victim or relayed by a third party, including victim advocates.

Example: The victim gives their mental health provider permission to speak with the prosecutor and that mental health professional discloses that the victim has memory loss affecting their ability to recall the events of the crime. Now in possession of that information, the prosecutor must turn that information over to the defendant. It can be viewed as materially beneficial to the defendant in that it is a factor to be weighed by the jury in deciding whether the evidence proves the defendant’s guilty beyond a reasonable doubt.