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New York – Rape Crisis Counselor Privilege (CPLR section 4510)

In several prior posts, I’ve gone over various evidence privilege under New York law. Many people have heard of the attorney-client privilege, for example. In prior posts, I’ve gone over New York’s Library Records privilege as well as the Psychologist-Patient privilege. Speaking broadly, an evidence privilege is something that forbids the disclosure or use of information that would otherwise be admissible as evidence in a court case or other legal dispute. The logic behind an evidence privilege is that a more important purpose (e.g. obtaining necessary medical treatment sooner) will be served if a person is able to speak freely with, for example, their doctor or lawyer if they don’t have to worry that what they say could be used against them somehow.

In this post, I’m addressing another privilege, namely the Rape Crisis Counselor privilege under section 4510 of New York’s Civil Practice Law and Rules (CPLR). Section 4510(b) describes the privilege as:

“A rape crisis counselor shall not be required to disclose a communication made by his or her client to him or her, or advice given thereon, in the course of his or her services nor shall any clerk, stenographer or other person working for the same program as the rape crisis counselor or for the rape crisis counselor be allowed to disclose any such communication or advice given thereon nor shall any records made in the course of the services given to the client or recording of any communications made by or to a client be required to be disclosed, nor shall the client be compelled to disclose such communication or records…”

Section 4510(b) then goes on to describe certain exceptions to the privilege. For instance, the counselor may disclose communications to the extent authorized by the client. Like the attorney-client privilege, a rape crisis counselor is not required to keep confidential a communication which reveals the intent to commit a crime or harmful act. The privilege also does not apply in situations where the client waives the privilege by alleging malpractice or other charges against the rape crisis program or rape crisis counselor.

Some of you reading this (cough, the lawyers) are probably wondering what “rape crisis counselor” and “rape crisis program” means in this context. If you weren’t wondering that, you should because, as with all things in the law, definitions matter. The definitions dictate the criteria that need to be satisfied in order for a given rule, statute, case, etc to apply in a given situation. If the criteria aren’t met, then framework that applies to a given situation will likely be different than if the criteria had been met.

Thankfully, section 4510(a) of the CPLR provide the following definitions:

For good measure, section 4510(a) also defines “client” as any person who is seeking or receiving the services of a rape crisis counselor for the purpose of securing counseling or assistance concerning any sexual offenses, sexual abuse, incest or attempts to commit sexual offenses, sexual abuse, or incest, as defined in the penal law.”

As always, I hope this post was helpful. It was not intended as a comprehensive discussion of the topic so please do your own research if you have a situation involving New York’s Rape Crisis Counselor privilege. Additionally, the authorities I cite to above might have changed in the time between when I wrote this post and when you’re reading it so, again, do your own research. If you do have a situation involving New York’s Rape Crisis Counselor Privilege, please do find an attorney in your area with whom you can discuss your situation face-to-face. Lastly, as of the date of this post, I do not have a physical office in New York state. As a result, under New York Judiciary Law section 470, I do not take cases in New York. If you need a referral to an attorney in New York, however, feel free to contact me to see if I can make one.

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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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