Right to Privacy

Introduction

Privacy concerns are an issue for crime victims throughout the criminal justice process. Fear of harassment or retaliation from offenders who may learn their names and find out where they live through public records or court testimony deters victims from seeking justice. Victims who want to be notified by criminal justice agencies of offenders’ releases and scheduled proceedings may be reluctant to provide the contact information necessary to request notice. Anxiety over who might have access to compensation files, pre-sentence reports, and victim impact statements may result in guarded participation by victims.

Protection of Personal Information in Criminal Justice Records

Victims may have the right to protect the privacy of their personal information, such as their name or identity, address, phone number, and place of employment, contained in criminal justice documents, compensation records, court testimony, and the contact information they provide for notification purposes. Sometimes, the victim’s safety may be at stake if this personal information is made public. Some states extend this protection to witnesses or the victim’s immediate family members. Certain victim populations, such as children, victims of sexual assault, domestic violence, stalking, or human trafficking, and older and other vulnerable adults, may have additional confidentiality rights that address their unique privacy concerns.

In general, statutory protections of a victim’s right to privacy related to information contained in criminal justice records most often take the following forms: (1) prohibition against compelling testimony relating to personal information in open court; (2) exclusion or limited disclosure of victim identifying information in criminal justice records, including law enforcement reports, court materials, and prosecution documents; and (3) protection from release of addresses and phone numbers provided for notice purposes.

Victim/Counselor Privilege

Traditionally, many types of communication are protected from disclosure in court. These include communications between husband and wife, physician and patient, attorney and client, clergy and parishioner, and psychotherapist and patient. More recently, confidential communications generated during a counseling relationship have also been afforded statutory protection from disclosure. In general, victim/counselor privilege laws enable counselors to maintain the confidentiality of information revealed to them, even if they are called to testify as witnesses in a trial or another proceeding. In addition to preventing counselors from testifying or being compelled to testify in court, many privilege laws protect a counselor’s written records, such as reports, memoranda, and working papers produced during the counseling relationship.

Because of the sensitive nature of sexual assault crimes and the need to protect domestic violence, stalking, and human trafficking victims from future harm, much of the legislation extending testimonial privileges to counselors and victim advocates or service providers has been limited to these victim populations.

Victim/counselor privilege laws generally fall into one of three categories: absolute, semi-absolute, and qualified. Some states have enacted statutes that provide an absolute privilege prohibiting the disclosure of confidential counseling records and communications under any circumstances without the victim’s consent. Other states specify exceptions to the victim/counselor privilege within their respective statutes. These states set forth a semi-absolute privilege and authorize disclosure in limited situations when disclosure of information is in the public interest. The most common exceptions involve reporting abuse or neglect of a child or vulnerable adult, perjured testimony, evidence of the victim’s intent to commit a crime, or malpractice proceedings against the counselor. Although these laws do not provide the unlimited confidentiality of absolute privilege laws, they do provide complete protection from disclosure except under narrowly defined circumstances.

The remaining states have a qualified privilege that authorizes disclosure if a court finds it appropriate, given the facts of the case. In making that determination, a court must use a balancing test, weighing the value of the evidence to the defendant against the victim’s need to keep the communication confidential. As a result, the confidentiality of counseling communications is decided on a case-by-case basis, and both parties have the opportunity to make their arguments for or against disclosure.

Address Confidentiality Programs

Many states created address confidentiality programs to enable victims of domestic violence, sexual offenses, trafficking, and stalking to substitute an alternative address in place of their actual address to keep their whereabouts private. The program provides participants with a means to prevent abusers and potential abusers from locating them through public records by assigning them a legal substitute mailing address, which may be used as a residential, school, or employment address. Often, this substitute address is also used for voter registration purposes.