Privilege Communication

Appendix J                  NCCADV Best Practices Manual

Testimonial Privilege for Domestic Violence and Sexual Assault Victims

Effective Date: December 1, 2001

(applies to all communications made on or after December 1, 2001)

Who Should Have Copies: 

• Court Advocates
• Magistrates
• District Attorneys 
• Legal Services Attorneys 
• Law Enforcement 
• Judges
• Battered Women

Creation of Testimonial Privilege for Victims

NCGS § 8-53.12

Q: What is the purpose of creating a privilege?

A: To protect information obtained from victims of domestic violence and sexual assault and maintain confidential records when a court proceeding is pending.

Q: What is a privileged communication? 

A: Any information that an “employee or agent” of a domestic violence program or rape crisis center acquires from a victim during the provision of services to a victim and which information was necessary to enable the employee or agent to render the services. 

Q: Who is considered an “employee or agent” of a program or center? 

A: 1.) An employee who has completed a minimum of 20 hours of training as required by the domestic violence program or rape crisis center; OR 

    2.) a volunteer who is supervised by a program supervisor and has completed a minimum of 20 hours of training as required by the domestic violence program or rape crisis center.

Q: Can a victim waive the privilege?

A: Yes

Q: Can a judge still order disclosure of information?

A: Yes, the privilege is “qualified” and NOT “absolute.”

Q: When can a judge order disclosure of information?

A: The court must make a determination that the records or testimony sought:

1. Are relevant and material to the factual issues in a civil case; OR
2. Are relevant, material, and exculpatory in a criminal case, i.e. tending to clear the defendant from guilty;

AND

3. The evidence is not sought merely for character impeachment purposes;

AND 

4. The evidence sought is not already available or obtained by the party seeking disclosure.

         NOTE: The burden is on the party seeking disclosure to convince the court that the information is subject to disclosure.

Q: What happens if the judge orders disclosure of information?

A: The records must be produced to the court under seal, and the judge must examine the records in camera (in private) and determine which portions of the records contain information subject to disclosure.

Q: What happens to the records when the case is over?

A: Once all appeals are exhausted, the records received by the court must be returned to the domestic violence program or rape crisis center.

Q: Does the privilege ever terminate?

A: Yes, upon the death of a victim. 

Q: Does the privilege apply to the duty to report abuse or neglect of a child or disabled adult?
A: No