Victim-advocate confidentiality is crucial to advancing safety and justice for American Indian/Alaska Native victims of sexual violence.
Victim advocates may be called to testify in tribal, state, or federal courts. Their testimony may be critical in both criminal and civil cases.
If the victim advocate expects to testify in court, it is important to remember that the “golden rule” on confidentiality: A client’s information is not to be shared outside of the victim advocate’s agency unless the client gives the agency express permission to do so. Thus, unless the victim advocate receives a qualifying legal document or the victim’s express permission, she should not talk to any attorneys about the case or testify in court about the case.
Concerns about confidentiality do not arise when the victim grants an advocate express permission or gives her specific consent to disclose sensitive information.
When advocating for a victim with law enforcement or with other agencies, it is important for the victim advocate to have a clear understanding of the scope of information where permission for disclosure has been given. Utilizing a signed, written confidentiality form for your agency is the simplest way to provide notice to the victim of the type of information that can be disclosed.
A list of the specific information that the victim authorizes the advocate or agency to disclose
A list of persons or agencies that can receive the specific, confidential information from the advocate and/or her agency
A signature line for the victim to sign (after reading the form and discussing it thoroughly with her advocate)
An expiration date after which no information may be disclosed absent the signing of a new form
Notice that the victim can rescind her permission to disclose information at any time, if she chooses.
If the victim has not provided her express consent for the victim advocate to reveal otherwise confidential information, advocates should not reveal any information to prosecutors, law enforcement, or defense attorneys unless the advocate receives:
(1.) a court order,
(2.) a qualifying subpoena or
(3.) a qualifying discovery request.
As mentioned previously, the victim advocate can be called to testify in either a criminal or civil case.
Victim advocates may come in to contact with criminal defense attorneys, prosecutors, civil defense attorneys, and plaintiff’s attorneys. This can create a lot of confusion. Thus, when the victim advocate receives a qualifying subpoena or discovery request, she should contact the attorney who submitted the request in order to ascertain what the attorney expects her to testify about.
It is also important to remember that the victim advocate can only be asked to testify about things within the realm of her personal knowledge. Most commonly, victim advocates are called to be fact (or lay) witnesses in court. This means that the victim advocate will testify about facts that she observed during her assistance of the victim.
Common topics that the victim advocate might testify about in court include:
Statements that the victim made about the crime (“Marvin raped me.”);
Things that the victim advocate observed about the victim’s physical appearance (“Her shirt was torn.”);
Things that the victim advocate observed about the victim’s demeanor (“She was upset and crying.”); and
Things that the victim advocate observed about the victim’s surroundings (“The door looked like it was broken into.”).
It is not uncommon for a victim advocate to also be called as an expert witness on sexual violence or her community’s culture. If a victim advocate is called to be an expert witness, she should contact the attorney who requested this testimony in order to understand what is expected of her at trial. Even if a victim advocate is testifying as an expert witness, she will only be asked to testify about things within her knowledge and expertise.
It may be important for the victim advocate to use the victim’s case file and other notes that she wrote down about the victim to refresh her memory before she testifies in court. Victim case files should never be brought to the court unless they have been specifically subpoenaed. Because of the risk that a victim’s entire file may be subpoenaed and information contained therein provided to the perpetrator’s counsel, advocates should be extremely careful about what information is recorded in the victim’s file.