Factsheets: Right to Privacy Legislation

• Overview
• State Statutes
• Privacy Rights of Sexual Assault Victims
• Privacy Rights of Domestic Violence and Stalking Victims
• Exceptions
• Counselor-Client Privilege
• Bibliography
• For Additional Information

Overview

Many states have laws to protect the confidentiality of victims of crime. Most of these laws relate to specific groups of victims: sexual assault victims, domestic violence victims, abused or neglected elderly or disabled adults, missing persons, hate crime victims, and child victims. Confidentiality laws exist to encourage the reporting of offenses, and to prevent the re-victimization of the crime victim through publicity, unwarranted intrusion upon the victim's privacy, and insensitive treatment by the media. (All statutes discussed in this summary are current through 1992 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)

State Statutes

States may restrict the release of the name or other identifying information about the victim. More common is the confidentiality of the victim's address or phone number. Laws also exist to protect financial, medical, employment and other records. States have laws regarding the release of information by courts, law enforcement, medical facilities, social service agencies and other government agencies. Often, government funding for victim services such as rape crisis centers or domestic abuse shelters is conditioned on the maintenance of the confidentiality of their clients. There are state laws that prohibit the media from publication or broadcast of a victim's identity, photo, address or similar identifying information. South Dakota establishes a civil action for damages for publicizing or broadcasting the name, picture, address or identification of any child victim or other person involved in a child abuse proceeding. In contrast, Pennsylvania's law only states that the legislature "urges the news media to use restraint" in revealing the identity or address of child victims. Those laws provide the battleground between a victim's right to privacy and the First Amendment right to freedom of the press, and are often the subject of legal battles. (For instance, the U.S. Supreme Court, in The Florida Star v. B.J.F., 57 U.S.L.W. 4816 (S.Ct. 1989), held it was a violation of the First Amendment to allow a rape victim to recover money damages where her name was published in violation of state law.)

Privacy Rights of Sexual Assault Victims

In many states, the identity and the address of a victim of sexual assault is confidential. Many states prohibit the publication of such information. These laws exist in part to encourage the reporting of an offense which has historically carried much stigma to the victim. States such as Alaska provide that a sexual assault victim will be referred to in all public court records by her initials. In Texas, the victim is given a pseudonym on request to the court (although the victim's name is still released to the defendant and the defense attorney). Thereafter, the victim may not be required to disclose her or his name, address or phone number. In West Virginia, the identity of a sexual assault victim may not be released prior to an indictment. After indictment, a minor victim may still have his or her identity protected upon request to the court. Nevada law creates a civil action for damages for the disclosure of confidential information regarding a sexual assault victim.

Privacy Rights of Domestic Violence and Stalking Victims

Privacy protection for domestic violence and stalking victims is a growing legislative trend. States like Pennsylvania are giving individuals who have been the victims of domestic violence or stalking the option of blocking their phone numbers from being revealed through the popular telephone caller identification services sometimes referred to as "Caller-ID." With the passage of the Driver Protection Act as a part of the Violent Crime Control and Law Enforcement Act of 1994 (commonly referred to as The Crime Bill) more and more states are tightening their policies concerning the release of information from voter registration and department of motor vehicles records. Statutes prohibiting the disclosure of the address and location of domestic violence shelters can also be found in a number of states.

Exceptions

There are exceptions to the confidentiality laws. A state may permit the defendant or the defense attorney to have access to the information. It may allow a victim services agency to have access to certain information in order to provide services to the victim or to the victim's family. Most states' paroling authorities keep victim impact statements confidential from inmates and/or their counsel. States often allow researchers access to confidential files, although the law ordinarily requires that the information identifying the victim(s) be deleted first. All states have some sort of mandatory abuse reporting law, which is not changed by the existence of a confidentiality requirement.

Counselor-Client Privilege

Additionally, many laws provide a "privilege" between professionals and their clients, protecting any communications between them. These range from the traditional, doctor-patient, attorney-client privileges, to the newer privileges protecting communications between rape crisis or domestic violence counselors and their clients. Most of the privileges do not cover things such as child abuse a counselor who learns of such abuse is required by law to report it. However, the privilege between attorney and client, and between priest and confessor, do not usually have such exceptions. The privilege between psychiatrist and patient is subject to another important exception. If the patient makes a realistic threat to cause harm to an identifiable person, the psychiatrist is under a duty to take certain action. In most states this includes warning the targeted individual or reporting the patient's statement to the police, but in some states it may be fulfilled by initiating involuntary commitment proceedings. The area of a victim's right to privacy continues to be an important one, and legislatures are devoting increased attention to the matter. To find out what confidentiality rights exist in your state, visit your local law library or contact your state Attorney General or state legislator.

Bibliography

Beatty, David. (1994, April 14). "Protect Motorists' Privacy: Limit Access to DMV Record Information." USA Today, Guest Editorial.

Direct Marketing Association, Inc. (1993). Privacy: The Key Issue of the 90's. Washington, DC.

Horowitz, Robert and Howard Davidson, eds. (1984). Legal Rights of Children Family Law Series. Colorado Springs, CO: Shepard's/McGraw-Hill, Inc.

National Battered Women's La w Project. (1993). Protecting Confidentiality of Victim-Counselor Communications. New York: National Center on Women and Family Law.

National Criminal Justice Association. (1993, October). Project to Develop a Model Anti-Stalking Code for States, Final Summary Report. Washington, DC: National Institute of Justice, U.S. Department of Justice.

National Center for Victims of Crime (1997) "Civil Legal Remedies for Victims of Violent Crime," Get Help Series, Arlington, VA.

National Center for Victims of Crime (1997) "Crime Victims' Privacy Rights in the News Media," Get Help Series, Arlington, VA..

National Center for Victims of Crime (1998) "Rights of Crime Victims," Get Help Series, Arlington, VA.

Office for Victims of Crime, U.S. Department of Justice. (1986). "Privileged Communication Between Victim and Counselor, A Model Statute." Response, 9(3): 10-15.

Smith, Robert Ellis. (1988). Compilation of State and Federal Privacy Laws. Washington, DC: Privacy Journal.

"The Victim's Right to Privacy: Imperfect Protection From the Criminal Justice System, Notes: Victims' Rights Symposium." (1992, Fall). 8 St. John's J. Legal Com. 205.

For additional information, please contact:

National Battered Women's Law Project
National Center on Women and Family Law
799 Broadway, Suite 402
New York, NY 10003
(212) 741 - 9480

National Coalition Against Sexual Assault
912 North Second Street
Harrisburg, PA 17102
(717) 232 - 7460

National Criminal Justice Association
444 North Capitol Street, NW Suite 618
Washington, DC 20001
(202) 347 - 4900

NOW Legal Defense & Education Fund
99 Hudson Street
New York, NY 10013
(212) 925 - 6635

Your state Attorney General, state legislator, or county/city prosecutor:
Check in the Blue Pages of your local phone book under the appropriate section heading of either "Local Governments," "County Governments," or "State Government."

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Copyright © 1996 by the National Center for Victims of Crime.  This information may be freely distributed, provided that it is distributed free of charge, in its entirety and includes this copyright notice.