Sexual-assault and domestic-violence victims often receive counseling from persons who are not licensed psychologists or psychotherapists; thus, they lack the testimonial privilege afforded other professionals in most States. In too many cases, defense attorneys subpoena counseling records and call counselors as witnesses. The attorneys use the records to shift the court's focus from the crime to the victim's thoughts and comments regarding the crime. Often, victims face the threat that their most intimate feelings will be disclosed in open court and become a matter of public record. Sexual-assault and domestic-violence victims must be able to communicate freely with counselors, secure in the knowledge that the thoughts and feelings they reveal will not be publicized as a result of reporting the crime. The U.S. Department of Justice has studied the ways that States have protected communications between sexual-assault and domestic-violence victims and their counselors. Some States have enacted specific statutes that extend a testimonial privilege to sexual-assault and domestic-violence counselors, but State courts have vitiated some of these privileges. Other State courts have recognized these privileges even in the absence of legislation. This report presents two model statutes drafted by the Justice Department; they present alternative privileges in recognition of differences in the various States' constitutions, case law, and statutes.
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