1     
VICTIM COMMUNICATIONS AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: V. Lowry Snow

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill enacts provisions related to victim communications.
10     Highlighted Provisions:
11          This bill:
12          ▸     enacts the Privileged Communications with Victim Advocates Act, including:
13               •     providing a purpose statement;
14               •     defining terms;
15               •     outlining the scope of the part;
16               •     providing a privilege for confidential communications;
17               •     addressing government records; and
18               •     requiring certain notices;
19          ▸     addresses examination of a victim advocate; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          78B-1-137, as renumbered and amended by Laws of Utah 2008, Chapter 3
28     ENACTS:
29          77-38-401, Utah Code Annotated 1953

30          77-38-402, Utah Code Annotated 1953
31          77-38-403, Utah Code Annotated 1953
32          77-38-404, Utah Code Annotated 1953
33          77-38-405, Utah Code Annotated 1953
34     

35     Be it enacted by the Legislature of the state of Utah:
36          Section 1. Section 77-38-401 is enacted to read:
37     
Part 4. Privileged Communications with Victim Advocates Act.

38          77-38-401. Title.
39          This part is known as the "Privileged Communications with Victim Advocates Act."
40          Section 2. Section 77-38-402 is enacted to read:
41          77-38-402. Purpose.
42          It is the purpose of this part to enhance and promote the mental, physical, and emotional
43     recovery of victims by restricting the circumstances under which a confidential communication
44     with the victim may be disclosed.
45          Section 3. Section 77-38-403 is enacted to read:
46          77-38-403. Definitions.
47          As used in this part:
48          (1) "Advocacy services" means assistance provided that supports, supplements,
49     intervenes, or links a victim or a victim's family with appropriate resources and services to
50     address the wide range of potential impacts of being victimized.
51          (2) "Advocacy services provider" means an entity that has the primary focus of
52     providing advocacy services in general or with specialization to a specific crime type or
53     specific type of victimization.
54          (3) "Confidential communication" means a communication that is intended to be
55     confidential between a victim and a victim advocate for the purpose of obtaining advocacy
56     services.
57          (4) "Criminal justice system victim advocate" means an individual who:

58          (a) is employed or authorized to volunteer by a government agency that possesses a
59     role or responsibility within the criminal justice system;
60          (b) has as a primary responsibility addressing the mental, physical, or emotional
61     recovery of victims;
62          (c) completes a minimum 40 hours of trauma-informed training:
63          (i) in crisis response, the effects of crime and trauma on victims, victim advocacy
64     services and ethics, informed consent, and this part regarding privileged confidential
65     communication; and
66          (ii) that have been approved or provided by the Utah Office for Victims of Crime; and
67          (d) is under the supervision of the director or director's designee of the government
68     agency.
69          (5) "Health care provider" means the same as that term is defined in Section
70     78B-3-403.
71          (6) "Mental health therapist" means the same as that term is defined in Section
72     58-60-102.
73          (7) "Nongovernment organization victim advocate" means an individual who:
74          (a) is employed or authorized to volunteer by an nongovernment organization advocacy
75     services provider;
76          (b) has as a primary responsibility addressing the mental, physical, or emotional
77     recovery of victims;
78          (c) has a minimum 40 hours of trauma-informed training:
79          (i) in assisting victims specific to the specialization or focus of the nongovernment
80     organization advocacy services provider and includes this part regarding privileged confidential
81     communication; and
82          (ii) (A) that have been approved or provided by the Utah Office for Victims of Crime;
83     or
84          (B) that meets other minimally equivalent standards set forth by the nongovernment
85     organization advocacy services provider; and

86          (d) is under the supervision of the director or the director's designee of the
87     nongovernment organization advocacy services provider.
88          (8) "Record" means a book, letter, document, paper, map, plan, photograph, file, card,
89     tape, recording, electronic data, or other documentary material regardless of physical form or
90     characteristics.
91          (9) "Victim" means:
92          (a) a "victim of a crime" as defined in Section 77-38-2;
93          (b) an individual who is a victim of domestic violence as defined in Section 77-36-1; or
94          (c) an individual who is a victim of dating violence as defined in Section 78B-7-402.
95          (10) "Victim advocate" means:
96          (a) a criminal justice system victim advocate;
97          (b) a nongovernment organization victim advocate; or
98          (c) an individual who is employed or authorized to volunteer by a public or private
99     entity and is designated by the Utah Office for Victims of Crime as having the specific purpose
100     of providing advocacy services to or for the clients of the public or private entity.
101          (d) "Victim advocate" does not include an employee of the Utah Office for Victims of
102     Crime.
103          Section 4. Section 77-38-404 is enacted to read:
104          77-38-404. Scope of part.
105          This part governs the disclosure of a confidential communication to a victim advocate,
106     except that:
107          (1) if Title 53B, Chapter 28, Part 2, Confidential Communications for Institutional
108     Advocacy Services Act, applies, that part governs; and
109          (2) if Part 2, Confidential Communications for Sexual Assault Act, applies, that part
110     governs.
111          Section 5. Section 77-38-405 is enacted to read:
112          77-38-405. Disclosure of a communication given to a victim advocate.
113          (1) (a) A victim advocate may not disclose a confidential communication with a

114     victim, including a confidential communication in a group therapy session, except:
115          (i) that a criminal justice system victim advocate shall provide the confidential
116     communication to a prosecutor who is responsible for determining whether the confidential
117     communication is exculpatory or goes to the credibility of a witness;
118          (ii) that a criminal justice system victim advocate may provide the confidential
119     communication to a parent or guardian of a victim if the victim is a minor and the parent or
120     guardian is not the accused, or a law enforcement officer, health care provider, mental health
121     therapist, domestic violence shelter employee, an employee of the Utah Office for Victims of
122     Crime, or member of a multidisciplinary team assembled by a Children's Justice Center or a
123     law enforcement agency for the purpose of providing advocacy services; or
124          (iii) to the extent allowed by the Utah Rules of Evidence.
125          (b) If a prosecutor determines that the confidential communication is exculpatory or
126     goes to the credibility of a witness, after the court notifies the victim and the defense attorney
127     of the opportunity to be heard at an in camera review, the prosecutor will present the
128     confidential communication to the victim, defense attorney, and the court for in camera review
129     in accordance with the Utah Rules of Evidence.
130          (2) A record that contains information from a confidential communication between a
131     victim advocate and a victim may not be disclosed under Title 63G, Chapter 2, Government
132     Records Access and Management Act, to the extent that it includes the information about the
133     confidential communication.
134          (3) A criminal justice system victim advocate, as soon as reasonably possible, shall
135     notify a victim, or a parent or guardian of the victim if the victim is a minor and the parent or
136     guardian is not the accused:
137          (a) whether a confidential communication with the criminal justice system victim
138     advocate will be disclosed to a prosecutor and whether a statement relating to the incident that
139     forms the basis for criminal charges or goes to the credibility of a witness will also be disclosed
140     to the defense attorney; and
141          (b) of the name, location, and contact information of one or more nongovernment

142     organization advocacy services providers specializing in the victim's service needs, when a
143     nongovernment organization advocacy services provider exists and is known to the criminal
144     justice system victim advocate.
145          Section 6. Section 78B-1-137 is amended to read:
146          78B-1-137. Witnesses -- Privileged communications.
147          There are particular relations in which it is the policy of the law to encourage
148     confidence and to preserve it inviolate. Therefore, a person cannot be examined as a witness in
149     the following cases:
150          (1) (a) Neither a wife nor a husband may either during the marriage or afterwards be,
151     without the consent of the other, examined as to any communication made by one to the other
152     during the marriage.
153          (b) This exception does not apply:
154          (i) to a civil action or proceeding by one spouse against the other;
155          (ii) to a criminal action or proceeding for a crime committed by one spouse against the
156     other;
157          (iii) to the crime of deserting or neglecting to support a spouse or child;
158          (iv) to any civil or criminal proceeding for abuse or neglect committed against the child
159     of either spouse; or
160          (v) if otherwise specifically provided by law.
161          (2) An attorney cannot, without the consent of the client, be examined as to any
162     communication made by the client to the attorney or any advice given regarding the
163     communication in the course of the professional employment. An attorney's secretary,
164     stenographer, or clerk cannot be examined, without the consent of the attorney, concerning any
165     fact, the knowledge of which has been acquired as an employee.
166          (3) A member of the clergy or priest cannot, without the consent of the person making
167     the confession, be examined as to any confession made to either of them in their professional
168     character in the course of discipline enjoined by the church to which they belong.
169          (4) A physician or surgeon cannot, without the consent of the patient, be examined in a

170     civil action as to any information acquired in attending the patient which was necessary to
171     enable the physician or surgeon to prescribe or act for the patient. However, this privilege shall
172     be waived by the patient in an action in which the patient places the patient's medical condition
173     at issue as an element or factor of the claim or defense. Under those circumstances, a physician
174     or surgeon who has prescribed for or treated that patient for the medical condition at issue may
175     provide information, interviews, reports, records, statements, memoranda, or other data relating
176     to the patient's medical condition and treatment which are placed at issue.
177          (5) A public officer cannot be examined as to communications made in official
178     confidence when the public interests would suffer by the disclosure.
179          (6) (a) A sexual assault counselor as defined in Section 77-38-203 cannot, without the
180     consent of the victim, be examined in a civil or criminal proceeding as to any confidential
181     communication as defined in Section 77-38-203 made by the victim.
182          (b) A victim advocate as defined in Section 77-38-403 may not, without the written
183     consent of the victim, or the victim's guardian or conservator if the guardian or conservator is
184     not the accused, be examined in a civil or criminal proceeding as to a confidential
185     communication, as defined in Section 77-38-403, unless the victim advocate is a criminal
186     justice system victim advocate, as defined in Section 77-38-403, and is examined in camera by
187     a court to determine whether the confidential communication is privileged.