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Court Says Evidence is Protected by Common Law Victim-Counselor Privledge


A woman charged a man with criminal action of various felonies arising from alleged domestic violence. A non-profit corporation has moved to quash a subpoena issued by the District Attorney to provide the address and telephone number of the complainant of the criminal action. The non-profit corporation asserts that in accordance to the Social Services Law and the regulations promulgated under it, the non-profit corporation is prohibited from releasing to the District Attorney the actual address where the resident is being sheltered. In addition, it argues that the information sought is also shielded by a common-law victim-counselor privilege.

A New York Criminal Lawyer the motion to quash is denied. Section of the Social Services Law states that the street address of any residential program for victims of domestic violence applying for funding pursuant to this article shall be confidential and may be disclosed only to persons designated by rules and regulations of the department. At the same time, section of the State Code of Rules and Regulations provides for the confidentiality of facility addresses as each program must maintain a business mailing address separate and distinct from the actual address where residents are sheltered. When releasing the address of any resident, programs must release only the business address of the program and not the actual address where the resident is being sheltered.

On the other hand, section of the State Code of Rules and Regulations provides for access to confidential information pursuant to an order by a court of competent jurisdiction. The non-profit organization argues that the specific prohibition of the State Code of Rules and Regulation limits the broad disclosure permitted pursuant to a section of the said Code.

The Court persuasively argues that the interpretation of the regulations is inconsistent with the Legislative intent. A Manhattan Criminal Lawyer said the bill jacket indicates that the purpose of article of the Social Services Law is to insure a stable and secure funding source for shelters and programs, and to provide for the first time a statutory recognition of domestic violence programs and shelters as what they are–services and programs for the victims. Thus, the bill was meant to fund shelters to provide for the safety of domestic violence victims.

Unquestionably, the safety of domestic violence victims requires that the locations of shelters be kept confidential so as to protect the victims from their abusers. As the ability to maintain confidentiality is impaired by disclosure to anyone (including a court or prosecutor), the court attempted to avoid the disclosure called for by the subpoena by negotiating alternative means to secure the complainant’s appearance. The attempts have failed. The negotiations were perhaps doomed from the outset by certain philosophical differences between the non-profit corporation and the District Attorney over whether clients should be forced to testify. The differences involved attitudes toward the personal empowerment of victims as well as whether their safety is best secured by the total confidentiality for which the non-profit corporation argues or by the successful prosecution of criminal charges. Neither the Legislation nor the regulations promulgated thereunder reflect any view that the secrecy of shelters is meant to replace or supersede the use of criminal prosecutions to further the goals of personal and community safety.

Contrary to the arguments in behalf of the non-profit corporation, the Federal public policy does not favor the provision of confidential services to victims at the expense of legitimate law enforcement purposes. Section of The Family Violence Prevention and Services Act requires that funding for state programs is contingent upon a respect for confidentiality. However, the provision cannot be read in isolation. The Family Violence Prevention and Services Act defines a family violence shelter as the provision of temporary refuge and related assistance in compliance with applicable State law and regulation governing the provision, on a regular basis, of shelter, safe homes, meals, and related assistance to victims of family violence and their dependents. As defined by the statute, the term related assistance includes legal advocacy to provide victims with information and assistance through the civil and criminal courts, and legal assistance.

Moreover, the Violent Crime Control and Law Enforcement Act specifically address the confidentiality of domestic violence shelters and abused persons’ addresses. While the section requires the United States Postal Service to promulgate regulations to secure the confidentiality of domestic violence shelters and abused persons’ addresses. It further provides that such regulations shall not prohibit the disclosure of addresses to State or Federal agencies for legitimate law enforcement or other governmental purposes.

The argument that the addresses and phone numbers of domestic violence victims are protected by a common-law privilege is also rejected. New York has, by statute, created privileges for a number of confidential relationships. However, no privilege exists between a battered woman and her counselor. In the absence of a statute creating a privilege between two particular parties, no communication is privileged. In any event, addresses and telephone numbers do not normally come within the scope of statutory privileges.

Ultimately, the question of whether to pursue a criminal prosecution is a matter of prosecutorial discretion. That discretion may not be defeated by a court, let alone a complainant or a social services agency. The non-profit corporation may be advised to develop procedures to cope with the realities of ongoing court proceedings, but must comply with the court’s subpoenas.

Victims of any violence would find it hard to trust people around them and their initial instinct would be to protect themselves from further harm. When they turn themselves into shelters, they are putting their trust to that shelter. If you know of women and children who were victims of home-related violence and crimes, feel free to call the New York Domestic Violence Attorneys, together with the NY Criminal Lawyers of Stephen and Bilkis and Associates, they can pave the way for justice that the victims deserve. Whether you have been been involved in a domestic violence matter, or sex crimes, theft or drug charges, contact our office to ensure that your rights are protected

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