California Domestic Violence Counselor – Victim Privilege

In a prior post, I described California’s Marital Privileges under the guise of illustrating that there are benefits to being married versus just living together. That post was general — this post will be general as well — but the idea was to introduce you to the idea of a privilege and, also, to show that the law does confer some benefits on married couple over unmarried couples, regardless of how outdated some people might think the institution of marriage is.

To refresh, the idea of a privilege is — in general — that it allows you to do something or refuse to do something that would ordinarily garner a punishment under the law. In my Marital Privilege post, I described how that privilege can, depending on the situation, allow communications between spouse to be kept private, for instance.

Many people have probably heard of the Attorney-Client privilege under which an attorney is allowed to refuse — even refuse a judge’s order — to disclose what the lawyer and the lawyer’s client talked about. Attorney-Client privilege is certainly not unique to California, but if you’re interested, the statute for Attorney-Client privilege in California is section 954 of the California Evidence Code.

The Marital Privileges as well as the Attorney-Client privilege are just two kinds of privileges California recognizes. This post will be about another privilege, namely that between a victim of domestic violence and a domestic violence counselor. The California statute for this is section 1037.5 of the California Evidence Code.

As always under the law, definitions are extremely important. The privilege exists between a victim and a domestic violence counselor. The former is defined in California Evidence Code section 1037. The latter is defined in section 1037.1 of the California Evidence Code. The information that is protected from disclosure is that which is communicated between the victim and the counselor which, as far as the victim is aware, is not being disclosed to anyone else. See California Evidence Code section 1037.2(a). Exceptions exist that allow disclosure of the information to those who are necessary to further the victim’s interests.

There are couple notable differences with the Domestic Violence Counselor-Victim privilege compared to other privileges.

  • First, the privilege is conditional. Under certain conditions described in section 1037.2(b) of the California Evidence Code, a court may order disclosure of the communication between the counselor and victim anyway. One standard for disclosure is if the court determines that the probative value of the information to be disclosed outweighs the effects disclosure will have on the victim and the counseling relationship.
  • Second, the privilege between counselor and victim does not extend beyond the victim’s death. See section 1037.4 of the California Evidence Code. In contrast, other privileges in the California Evidence Code (e.g. ¬†Physician-Patient, Attorney-Client, etc) do extend beyond the individual’s death, although not indefinitely.

As always, I hope that helped. This post is general and is not intended to be comprehensive as the topic of privileges under the California Evidence Code is too complex to address in any readable blog post. If you want to know how the Domestic Violence Counselor-Victim privilege applies in your particular situation, please find a lawyer licensed in your state for a consultation.

 

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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