Confidentiality protections can be an element in some sex crime cases. Confidentiality protections protect sexual assault victims from certain information being used in court or in reports. You can learn more about confidentiality protections in Connecticut here.
What are Confidentiality Protections?
Confidentiality protections for sexual assault victims are governed by Connecticut General Statute § 52-146K. This type of protection outlines that a sexual assault counselor cannot disclose any confidential communications made by the victim to the counselor in any civil, criminal, legislative or administrative proceeding without consent of the victim.
“Confidential communication” is information given to a counselor about a victim’s assault. It also covers advice given by the counselor to the victim. Finally, it covers notes and reports that the counselor may have made or used when meeting with the victim. You can learn more about confidentiality here.
Release of this Information
If a victim is deceased or becomes incompetent than the victim’s guardian or executor of the victim’s estate may make the decision to waive the privilege. This would release the documents/communications with the counselor.
If the victim is a minor (meaning they are under the age of eighteen) the court might find that the minor is incapable of making such a decision as waiving the privilege of confidential documents. In this case, the parents or guardian of the child may waive the privilege on behalf of the minor. If the parent or guardian is the person accused of the crime, they may not waive the privilege and a guardian will be appointed to the child by the court instead.
Reviewing this Material in Court
Even though this type of information is considered confidential/privileged, there are times where the court in a criminal matter may review the materials. This might be the case in an in-camera review (private session review by the judge) if the accused/defendant can show that the privileged records contains information that is material to the defense. The Court is required to disclose any material that is potentially exculpatory. Brady v. Maryland, 373 U.S. 83 (1963).
The defendant in a criminal matter has a constitutional right under the Sixth Amendment to confront all witnesses brought against him or her. This includes the right to confront the victim’s credibility, which is often a very important issue for the jury to consider in a sexual assault case. The judge after review decides whether or not the privileged records are material and if they are required to be disclosed.
If at any point the victim does not give consent to either an in-camera review or the release of the records to the defense by the judge, he or she will not be allowed to testify. Often where there is no physical evidence of sex crime and the victim is not allowed to testify, the case will be dismissed (State v. Esposito, 471 A.2d 949, 956 (Conn. 1984)).
If you would like to review confidential documents as part of your defense, contact a criminal defense lawyer in your area. A lawyer can help you navigate confidentiality protections and make sure that you have the opportunity to defend yourself properly in court. Contact our office for more information.