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.
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:
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:
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.