HB 213

                SPONSOR:
                Rep. Griffith & Rep. Bush & Rep. K. Williams & Sen. Poore
                Reps. Bolden, Heffernan, Morrison, Romer, D. Short, Michael Smith, Berry, Harris; Sens. Lockman, Hansen, Hoffner, Mantzavinos, Walsh
        HOUSE OF REPRESENTATIVES
        153rd GENERAL ASSEMBLY
        HOUSE SUBSTITUTE NO. 1
        FOR
        HOUSE BILL NO. 213
        AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO EVIDENCE AND WITNESSES.
        BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
        Section 1. Amend Chapter 43, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
        § 4319A. Victim advocate privilege.
        (a) As used in this section:
        (1) “Confidential communication” means any information transmitted in confidence between a victim and a victim advocate in the course of that relationship.
        (2) “Crisis services” includes emergency and follow-up intervention services, information services, referral services, medical advocacy, legal advocacy, or social services advocacy.
        (3) "Victim" means:
        a. The person identified as the victim of a crime in:
        1. A police report.
        2. A criminal complaint or warrant.
        3. An indictment, information, or other charging instrument.
        b. A person seeking assistance because of any of the following, regardless of whether or not the services are sought within the criminal justice system:
        1. Domestic violence.
        2. Abuse.
        3. Any sexual offense.
        4. Abuse by a caregiver.
        5. Human Trafficking.
        6. Stalking.
        (4) "Victim advocate" means an employee, or a volunteer under the supervision of an employee, of a victim services agency that completed a minimum of 20 hours of training in an advocacy course of instruction, as documented by the victim services agency.
        (5) “Victim services” includes any of the following:
        a. Crisis intervention services, including a crisis hotline.
        b. Emergency assistance, which includes food, shelter, housing assistance, clothing, financial assistance, or legal assistance.
        c. Orientation to and information about the criminal justice system, including court proceedings.
        d. Information about legal rights, protections, and the criminal justice process.
        e. Trauma-informed counseling.
        f.
        Advocacy regarding legal protection provided to victims of crime, including legal assistance.
        g.
        Assistance with understanding and completing civil court documents.
        h.
        Assistance with an application to the Victims’ Compensation Assistance Program.
        i.
        Assistance with safety planning.
        j.
        Support during any meeting, process, or proceeding necessary as a result of the crime.
        (6) “Victim services agency” means a public or private organization that provides victim services.
         “Victims service agency” does not include a law-enforcement agency or the Department of Justice.
        (b) Unless otherwise required by law, a victim advocate may not reveal a confidential communication made by a victim for the purpose of seeking or receiving victim services, nor may the victim advocate divulge records kept during the course of providing victim services.
        (c) This privilege may be claimed by any of the following:
        (1) The victim.
        (2) The parent, guardian, or custodian of a victim who is unable to meaningfully understand or participate in the proceedings due to the victim’s minority or disability, except when the parent, guardian, or custodian:
        a. Is the defendant.
        b. Has a relationship with the victim such that the parent, guardian, or custodian has an interest in the outcome of the proceeding that conflicts with the interest of the victim.
        (3)
        The victim advocate, or the person who served as the victim advocate at the time of the confidential communication is presumed to have authority to claim the privilege, but only on behalf of the victim.
        (d) The privilege continues even if the victim is unreachable. The privilege terminates upon a written waiver or the death of the victim.
        (e) The victim advocate privilege under this section does not apply if:
        (1) The victim expresses an intent to engage in conduct likely to result in imminent death or serious physical injury to the victim or another individual, and the victim advocate reasonably believes that revealing the information is necessary to prevent this harm.
        (2) The victim advocate is required to make a report under § 903 of Title 16.
        (3) The communication is relevant to a proceeding brought under Chapter 25 of Title 13 or Chapter 9 of Title 16 or the privilege is otherwise inapplicable under § 909 of Title 16.
        (f) (1) In a criminal proceeding, the victim advocate privilege may yield upon motion of the defendant for in camera review by the court where the defendant’s motion meets the following criteria:
        a. The defendant has made a plausible showing that confidential communications or records sought cannot otherwise be obtained.
        b. The defendant sought the consent of the victim for release of confidential communications or records sought before bringing a motion under this section.
        c. The defendant precisely identified the kind of confidential communications or records sought.
        d. The defendant articulated a compelling basis for the confidential communications or records sought.
        e. The defendant made a plausible showing that confidential communications or records sought contain information that is relevant and material to the defendant’s defense.
        f. The court is satisfied that the defendant’s request is not purely speculative.
        g. The court has determined that the probative value of confidential communications or records sought outweighs the effect of the disclosure of confidential communications or records on the victim’s safety and the advocate’s safety.
        (2) Following in camera review of the confidential communications or records sought, the court may disseminate or order disclosure of the confidential communications or records or redacted portions thereof that it finds are relevant.
        (g) Any victim advocate who, in good faith, discloses confidential communications under subsection (e) of this section is immune from liability that may result from the disclosure. In any proceeding arising out of a disclosure under subsection (e) of this section, the good faith of the victim advocate who made the disclosure is presumed.
        SYNOPSIS
        This Act creates a privilege for confidential communications between a victim and a victim advocate. The victim can waive the privilege with a signed waiver. The privilege may also be overcome in certain circumstances, including mandated reporting of child abuse, communications relating to the intent to commit a violent crime, and in state custody and child abuse cases. This Act defines a victim advocate as an employee of a victim services agency, or formal volunteer under the supervision of an employee of a victim services agency who has completed a minimum of 20 hours of advocacy training.
        This substitute bill incorporates the change from HA1 to House Bill No. 213 regarding the exception for child abuse and state custody cases. It also explicitly excludes law-enforcement agencies and the Department of Justice from the definition of victim services agency. It clarifies that the victim advocate may claim the privilege but only on behalf of the victim. Finally, it adds a process and criteria for a defendant in a criminal case to overcome the privilege in certain circumstances. This is intended to mirror the exception to the therapist-client privilege articulated in Burns v. State, 968 A.2d 1012 (2009).