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What’s a Domestic Violence Victim–Counselor Privilege?

The reader of this article may be aware that there is an attorney-client privilege (Evidence Code § 954), a marital privilege (Evidence Code §§ 970 and 971), doctor-patient privilege (Evidence Code § 994), a psychotherapist-patient privilege (Evidence Code § 1014) and even a penitent – clergy member privilege (Evidence Code §§ 1033-1034). 

This privilege is important to understand the limitations of because a witness may give information to the domestic violence victim counselor that is favorable to defendant.  This information may be required to be disclosed by the prosecution.  See Penal Code § 1054.1(e) (material to be disclosed by prosecutor to defendant or defendant’s attorney if in possession of prosecutor or if prosecutor knows it to be in possession of investigating agencies); Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S. Ct. 1193, 10 L. Ed. 2d 215 (violation of due process to withhold from defendant favorable evidence that is material to guilty or punishment).  The important determinant is whether the person or agency has been acting on the government’s behalf or assisting the government’s case.

The principal underlying such privileges mentioned above is that open and candid conversations should be encouraged to further the relationship of trust, facilitate treatment or therapy and be protected from disclosure later in a different context to prove civil or criminal liability.

Consequently, it should come as no surprise that there is also a domestic violence victim – counselor privilege to protect confidential communications between a domestic violence victim and a domestic violence counselor.  The privilege is codified at Evidence Code § 1037.2.  For purposes of the privilege, domestic violence is defined at Family Code § 6211.

The privilege provides that nondisclosure of, and the prevention of another from disclosing, a confidential communication between the victim and a domestic violence counselor.  Evidence Code § 1037.5. 

“Confidential communication” is defined as “any information, including, but not limited to, written or oral communication, transmitted between the victim and the counselor in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons” other than those present to further the interests of the victim in the consultation or those to who disclosure is reasonably necessary to transmit information or to accomplish the purposes for which the counselor is consulted.  Evidence Code § 1037.2.

All information regarding the facts and circumstances of any domestic violence incident, the children of the victim or abuser, and the relationship of the victim with the abuser is expressly included within the scope of the statute.  Evidence Code § 1037.2(a).

A domestic violence counselor is defined to include a person who is employed by a domestic violence victim service organization, such as a battered women’s shelter, for the purpose of rendering advice or assistance to victims of domestic violence, regardless of whether the person is financially compensated.  Evidence Code § 1037.1(a)(1).

A domestic violence victim service organization is defined as either of the following: 1) a nongovernmental organization or entity that provides shelter, programs, or services to victims of domestic violence and their children; or 2) programs on the campus of a public or private institution of higher education with the primary mission to provide support or advocacy services to victims of domestic violence.  Evidence Code § 1037.1(b).

The issue of a counselor’s qualifications as a domestic violence counselor is a question of preliminary fact that must be heard and decided independently by the judge under Evidence Code §§ 400 – 402 and 405.  Testimony may be presented on these issues.  Evidence Code § 405(a).  Such evidence typically consists of examination and cross-examination of the witness.  See Evidence Code § 1037.1(a)(1) – (3) for training requirements for domestic violence counselors.

It merits mention that under Evidence Code § 917, there is a presumption that certain communications are confidential, such as those between an attorney and the client, a physician and the patient and psychotherapist, for example.

A domestic violence counselor must inform a domestic violence victim of any applicable limitations on the confidentiality of communications between the victim and the domestic violence counselor.  The counselor may give this notice orally.  Evidence Code § 1037.8.

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