Pitfalls for the Unwary: How Sexual Assault Counselor-victim Privileges May Fall Short of Their Intended Protections

In the wake of a sexual assault, a victim is faced with sensitive questions, grueling examinations, and life-altering decisions. To assist victims in dealing with such issues, many communities make sexual assault crisis counselors available. These counselors act as support persons for the victim as he or she deals with police, doctors, prosecutors, friends, and family. Because these counselors provide such valuable services, many state legislatures have enacted evidentiary privileges to protect information exchanged between counselor and victim. This note explores sexual assault counselor-victim privileges and deals with the possibility that judicial interpretation of confidentiality and waiver may impair their efficacy. While the creation of counselor-victim privileges has encouraged victims to utilize counselors after a sexual assault, the privilege laws are ambiguous regarding the effect that interactions with third parties have on the confidential relationship between counselor and victim. As a result of this uncertainty, counselors may avoid accompanying the victim to meetings between the victim and police, prosecutors, or medical professionals. This note will suggest that if courts interpret privilege statutes in a manner that disallows interactions with third parties, victims’ access to important services will be restricted. This note will also assert that courts should not use attorney-client privilege case law to construe sexual assault counselor-victim privileges. Finally, this note will propose an alternative statute that would augment the victim’s power to include third parties in the counseling process.