The advocate on the hotline is not a therapist, and you may wonder whether that means what you say to her is less protected. In California it is protected by its own statute — one written for exactly this conversation.
The short answer: yes. A victim of sexual assault "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault counselor."¹ A victim of domestic violence has the same privilege for communications with a domestic violence counselor.² The privilege belongs to you, not the counsellor; you can waive it, and a counsellor who is present when the communication is sought "shall claim the privilege" on your behalf unless instructed otherwise.⁸ The counsellor has to meet a statutory definition — a rape crisis centre or shelter-based program, with at least 40 hours of specified training, or for sexual assault counsellors a clinical credential instead.³ ⁴ The one difference from a therapist's privilege: a court may compel disclosure of a counsellor's records in a criminal case, after reviewing them in chambers if it chooses, where it finds that "the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services."⁶ A therapist's privilege has no such balancing test.
Two privileges, two definitions
Sexual assault counselor. Someone engaged in a rape crisis centre "whose primary purpose is the rendering of advice or assistance to victims of sexual assault," or a campus sexual-assault program, who either is a psychotherapist, holds a master's degree in counselling, or has a year of counselling experience with six months in sexual assault — or who has completed "40 hours of training" in the statute's listed subjects, holds a certificate of completion from a qualifying counselling centre, and works under the supervision of someone who meets the higher standard; staff of an organisation providing state-funded sexual assault services qualify on the training the state's guidelines set.³
Domestic violence counselor. "A person who is employed by a domestic violence victim service organization ... for the purpose of rendering advice or assistance to victims of domestic violence and who has at least 40 hours of training" in the listed subjects — the history of domestic violence, the relevant civil and criminal law, privilege, societal attitudes, peer counselling, housing, public assistance and referral ; a counsellor with under six months on the job must be supervised by someone with a year.⁴ There is no credential alternative on the domestic-violence side — the 40 hours are required of everyone. The organisation must be a nongovernmental shelter or service program, or a campus-based program, whose primary mission is domestic violence.⁴
The definitions matter because the privilege attaches to the role, not to the kindness of the person. A volunteer at a program that has not done the 40 hours, or a friend who "does DV work," is not inside it.
What is covered
"Information transmitted between the victim and the sexual assault counselor in the course of their relationship and in confidence," including where a third person is present to further the victim's interest or is reasonably necessary to transmit it.⁵ The domestic violence definition is written the same way and adds that it covers information about the incidents and about any children involved.⁶ Written and oral both count.⁶
What the counsellor must tell you
A domestic violence counselor is required to inform the victim "of any applicable limitations on confidentiality of communications between the victim and the domestic violence counselor," and may do so orally.⁷ That conversation, usually at the start of the first contact, is the counsellor doing what the statute requires, not a warning that the protection is thin.
The court exception, and why it is narrower than it sounds
In a criminal proceeding — and, for both privileges, in a child-abuse proceeding, and for domestic violence also where the victim is dead or is not the complaining witness — a court may compel disclosure of a confidential communication if it finds that the probative value outweighs the effect of disclosure on the victim, the counselling relationship and the counselling services.⁵ ⁶ It "may require" the material to be disclosed first in camera — in chambers, with only the people the statute allows present — and if it decides the information is privileged, nobody present may later reveal what was examined without your consent.⁵ ⁶ If some material is to be disclosed, the defendant is told its nature, a hearing is held without the jury, and the court rules item by item on what comes in.⁵
Two things follow. The exception is for criminal cases, not for the civil family-law or landlord disputes where survivors most fear their words being used. And it runs through a judge, who can read the material privately first, not through a subpoena landing on the centre's desk. Advocates and their programs are practised at asserting the privilege; that is what the statute tells them to do.⁸
How this compares with a therapist
A licensed therapist's confidentiality runs through the psychotherapist-patient privilege, which has no balancing test a criminal court can apply to override it, and through the state's medical confidentiality act. Is therapy confidential? → A therapist is also a mandated reporter of child, elder and dependent adult abuse, with defined deadlines. What does a therapist have to report? → Whether a counsellor at a shelter or crisis centre is a mandated reporter depends on the role and the program, which is one of the "applicable limitations" the intake conversation is for.
Which one to use, and when
They are not competitors. A rape crisis centre or shelter program is free, available today, and staffed by people whose entire training is this; a therapist is for the months after. Many survivors use both, and the two privileges each hold. If a lawsuit or prosecution is possible, tell each of them that, so they know what to protect. Who pays for therapy after a crime →
Q&A
Q: Is the hotline volunteer covered? A: Only if they meet the definition: employed or engaged at a qualifying program and trained for at least 40 hours under supervision — or, for sexual assault counsellors only, credentialed instead.³ ⁴ Ask; programs know which of their staff qualify.
Q: Can my abuser's lawyer subpoena the shelter's notes? A: The privilege lets you refuse and prevent disclosure. In a criminal case a judge may review the notes privately and compel only what outweighs the harm of disclosure.⁵ ⁶
Q: Can I waive it? A: Yes. The privilege is yours; the counsellor may claim it only until the holder, or someone authorised by the holder, permits disclosure.¹ ² ⁸
Q: Does this apply on a college campus? A: Yes. Campus sexual-assault programs and campus domestic-violence programs are named in both definitions.³ ⁴
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Sources
- Cal. Evidence Code §1035.8 — the sexual assault victim's privilege "to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault counselor," and who may claim it — california.public.law.
- Cal. Evidence Code §1037.5 — the domestic violence victim's privilege in the same terms, and who may claim it — california.public.law.
- Cal. Evidence Code §1035.2 — the definition of "sexual assault counselor," the three settings, the credential alternatives, the "40 hours of training" with a certificate of completion and supervision, and the guideline-based training for state-funded organisations — california.public.law.
- Cal. Evidence Code §1037.1 — the definition of "domestic violence counselor," "at least 40 hours of training," the training subjects, supervision, and the definition of a domestic violence victim service organization — california.public.law.
- Cal. Evidence Code §1035.4 — the definition of confidential communication, the probative-value balancing test, and the in-camera and hearing procedure — california.public.law.
- Cal. Evidence Code §1037.2 — the domestic violence definition of confidential communication; the balancing test ("the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services") in criminal and child-abuse proceedings, and where the victim is dead or not the complaining witness; and the discretionary in-camera rule — california.public.law.
- Cal. Evidence Code §1037.8 — the counsellor's duty to inform the victim "of any applicable limitations on confidentiality," which "may be given orally" — california.public.law.
- Cal. Evidence Code §§1036 and 1037.6 — the counsellor "shall claim the privilege" whenever present when the communication is sought to be disclosed and authorised to claim it — california.public.law · california.public.law.
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