Representative V. Lowry Snow proposes the following substitute bill:


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     
Part 4. Privileged Communications with Victim Advocates Act.

37          Section 1. Section 77-38-401 is enacted to read:
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 a Children's Justice Center,
102     unless the Children's Justice Center is under the control or supervision of a prosecutor's office
103     or a law enforcement agency.
104          Section 4. Section 77-38-404 is enacted to read:
105          77-38-404. Scope of part.
106          This part governs the disclosure of a confidential communication to a victim advocate,
107     except that:
108          (1) if Title 53B, Chapter 28, Part 2, Confidential Communications for Institutional
109     Advocacy Services Act, applies, that part governs; and
110          (2) if Part 2, Confidential Communications for Sexual Assault Act, applies, that part
111     governs.
112          Section 5. Section 77-38-405 is enacted to read:
113          77-38-405. Disclosure of a communication given to a victim advocate.
114          (1) (a) A victim advocate may not disclose a confidential communication with a
115     victim, including a confidential communication in a group therapy session, except:
116          (i) that a criminal justice victim advocate shall provide the confidential communication
117     to a prosecutor who is responsible for determining whether the confidential communication is
118     exculpatory or goes to the credibility of a witness;

119          (ii) that a victim advocate may provide the confidential communication to a law
120     enforcement officer, health care provider, mental health therapist, domestic violence shelter
121     employee, or member of a multidisciplinary team assembled by a Children's Justice Center or a
122     law enforcement agency for the purpose of providing advocacy services; or
123          (iii) to the extent allowed by the Utah Rules of Evidence.
124          (b) If a prosecutor determines that the confidential communication is exculpatory or
125     goes to the credibility of a witness, after the court notifies the victim and the defense attorney
126     of the opportunity to be heard at an in camera review, the prosecutor will present the
127     confidential communication to the court for in camera review pursuant to the Utah Rules of
128     Evidence.
129          (2) A record that contains information from a confidential communication between a
130     victim advocate and a victim may not be disclosed under Title 63G, Chapter 2, Government
131     Records Access and Management Act, to the extent that it includes the information about the
132     confidential communication.
133          (3) A criminal justice victim advocate, as soon as reasonably possible, shall notify a
134     victim:
135          (a) whether a confidential communication with the victim advocate will be disclosed to
136     a prosecutor and whether a statement relating to the incident that forms the basis for criminal
137     charges or goes to the credibility of a witness will also be disclosed to the defense attorney; and
138          (b) of the name, location, and contact information of one or more nongovernment
139     organization advocacy services providers specializing in the victim's service needs, when a
140     nongovernment organization advocacy services provider exists and is known to the victim
141     advocate.
142          Section 6. Section 78B-1-137 is amended to read:
143          78B-1-137. Witnesses -- Privileged communications.
144          There are particular relations in which it is the policy of the law to encourage
145     confidence and to preserve it inviolate. Therefore, a person cannot be examined as a witness in
146     the following cases:
147          (1) (a) Neither a wife nor a husband may either during the marriage or afterwards be,
148     without the consent of the other, examined as to any communication made by one to the other
149     during the marriage.

150          (b) This exception does not apply:
151          (i) to a civil action or proceeding by one spouse against the other;
152          (ii) to a criminal action or proceeding for a crime committed by one spouse against the
153     other;
154          (iii) to the crime of deserting or neglecting to support a spouse or child;
155          (iv) to any civil or criminal proceeding for abuse or neglect committed against the child
156     of either spouse; or
157          (v) if otherwise specifically provided by law.
158          (2) An attorney cannot, without the consent of the client, be examined as to any
159     communication made by the client to the attorney or any advice given regarding the
160     communication in the course of the professional employment. An attorney's secretary,
161     stenographer, or clerk cannot be examined, without the consent of the attorney, concerning any
162     fact, the knowledge of which has been acquired as an employee.
163          (3) A member of the clergy or priest cannot, without the consent of the person making
164     the confession, be examined as to any confession made to either of them in their professional
165     character in the course of discipline enjoined by the church to which they belong.
166          (4) A physician or surgeon cannot, without the consent of the patient, be examined in a
167     civil action as to any information acquired in attending the patient which was necessary to
168     enable the physician or surgeon to prescribe or act for the patient. However, this privilege shall
169     be waived by the patient in an action in which the patient places the patient's medical condition
170     at issue as an element or factor of the claim or defense. Under those circumstances, a physician
171     or surgeon who has prescribed for or treated that patient for the medical condition at issue may
172     provide information, interviews, reports, records, statements, memoranda, or other data relating
173     to the patient's medical condition and treatment which are placed at issue.
174          (5) A public officer cannot be examined as to communications made in official
175     confidence when the public interests would suffer by the disclosure.
176          (6) (a) A sexual assault counselor as defined in Section 77-38-203 cannot, without the
177     consent of the victim, be examined in a civil or criminal proceeding as to any confidential
178     communication as defined in Section 77-38-203 made by the victim.
179          (b) A victim advocate as defined in Section 77-38-403 may not, without the written
180     consent of the victim, or the victim's guardian or conservator if the guardian or conservator is

181     not the accused, be examined in a civil or criminal proceeding as to a confidential
182     communication, as defined in Section 78-38-403, unless the victim advocate is examined in
183     camera to determine whether the confidential communication is privileged under the Utah
184     Rules of Evidence.