Privilege Law and Domestic Violence

Effective September 1, 2017, the Texas legislature passed H.B. 3649, a law protecting the communications between domestic violence victims and their advocates at domestic violence shelters. The intention behind the law is simple: abusers should not have, through criminal or civil subpoena, access to the records kept by domestic violence shelters of the person they victimized. These records could include counseling notes for woman or their children, documentation of her shelter stay, or reports made to the Texas Department of Family and Protective Services.

 

Although the contents of these records are often supportive in nature for clients and her experience, they are also deeply personal. In order to receive the best possible advocacy, victims should be able to communicate honestly and openly with their advocate and counselor, even if that means sharing something that is what we call in the legal field a “bad fact,” or anything that could undermine her credibility.

 

The law carves out specific definitions of who qualifies as a victim, who qualifies as an advocate, what organizations can invoke this privilege and when and how the privilege can be asserted and when it cannot. In response to the law, Genesis leadership has implemented new policies and procedures to best ensure that client’s records are privilege under the definition of the law. But as with any new law, the success in asserting the privilege on behalf of clients differs based on county and courtrooms.

 

Some of the arguments heard by criminal defense attorneys and opposing counsel in family law cases has been, “if she mentions Genesis at all then it opens the door to all Genesis records,” “the father of a child seeing a counselor [at Genesis] is entitled to the child’s records and that right trumps privilege,” “the judge should be able to review the records first to see if they are privileged,” or “she must turn over all records to the court order psychological evaluator or custody evaluator  regardless of privilege.” All of these arguments defy what the courts have traditionally come to understand about privilege, which is most commonly associated with the attorney-client relationship or attorney client privilege.

 

Clients are also left with the precarious position of choosing between allowing their records to be turned over to their abusers or the potentially harmful messaging it sends to a judge or jury if she doesn’t turn over those records.  Is the person or persons who will determine whether her abuser is held accountable or her children are safe thinking “what is she hiding?” The speculation of the unknown can be extremely damaging, particularly in family law cases.

 

Over time, the nuances of the law will be litigated and made clearer, but until then, Genesis staff will continue to work vigorously to protect the privacy of all clients.

 

You can read the law in full here:

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.93.htm

 

Written by Sara Barnett, director of legal services at Genesis Women’s Shelter & Support

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