Rule 505.5  Victim-counselor privilege. 
(a)  Definitions.  As used in this rule:



(1)  A communication is "confidential" if
not intended to be disclosed to third persons other than those to whom
disclosure would be in furtherance of the provision of counseling or treatment
services to the victim or those reasonably necessary for the transmission of
the communication.



(2)  "Domestic violence victims' program"
means any refuge, shelter, office, safe home, institution, or center
established for the purpose of offering assistance to victims of abuse through
crisis intervention, medical, legal, or support counseling.



(3)  "Sexual assault crisis center" means
any office, institution, or center offering assistance to victims of sexual
assault and the families of such victims through crisis intervention, medical,
legal, or support counseling.



(4)  "Social worker" means a person who has
received a master's degree in social work from a school of social work
accredited by the Council on Social Work Education.



(5)  A "victim" is a person who consults a
victim counselor for assistance in overcoming any adverse emotional or
psychological effect of sexual assault, domestic violence, or child abuse.



(6)  A "victim counseling program" is any
activity of a domestic violence victims' program or a sexual assault crisis
center that has, as its primary function, the counseling and treatment of
sexual assault, domestic violence, or child abuse victims and their families,
and that operates independently of any law enforcement agency, prosecutor's
office, or the department of human services.



(7)  A "victim counselor" is either a sexual
assault counselor or a domestic violence victims' counselor.  A sexual assault
counselor is a person who is employed by or is a volunteer in a sexual assault
crisis center, has undergone a minimum of thirty-five hours of training and who
is, or who reports to and is under the direct control and supervision of, a
social worker, nurse, psychiatrist, psychologist, or psychotherapist, and whose
primary function is the rendering of advice, counseling or assistance to
victims of sexual assault.  A domestic violence victims' counselor is a person
who is employed by or is a volunteer in a domestic violence victims' program,
has undergone a minimum of twenty-five hours of training and who is, or who
reports to and is under the direct control and supervision of, a direct service
supervisor of a domestic violence victims' program, and whose primary function
is the rendering of advice, counseling, or assistance to victims of abuse.



(b)  General rule of privilege.  A victim has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made to a victim counselor for the purpose of
counseling or treatment of the victim for the emotional or psychological
effects of sexual assault, domestic violence, or child abuse or neglect, and to
refuse to provide evidence that would identify the name, location, or telephone
number of a safe house, abuse shelter, or other facility that provided
temporary emergency shelter to the victim.



(c)  Who may claim the privilege.  The
privilege may be claimed by the victim, the victim's guardian or conservator,
or the personal representative of a deceased victim.  The person who was the
victim counselor at the time of the communication is presumed to have authority
to claim the privilege but only on behalf of the victim.



(d)  Exceptions.  There is no privilege under
this rule:



(1)  Perjured testimony by victim.  If the victim
counselor reasonably believes that the victim has given perjured testimony and
a party to the proceeding has made an offer of proof that perjury may have been
committed.



(2)  Physical appearance and condition of victim.  In
matters of proof concerning the physical appearance and condition of the victim
at the time of the alleged crime.



(3)  Breach of duty by victim counselor or victim
counseling program.  As to a communication relevant to an issue of breach of
duty by the victim counselor or victim counseling program to the victim.



(4)  Mandatory reporting.  To relieve victim
counselors of any duty to refuse to report child abuse or neglect under chapter
350, domestic abuse under chapter 586, or abuse of a vulnerable adult under
part X of chapter 346, and to refuse to provide evidence in child abuse
proceedings under chapter 587.



(5)  Proceedings for hospitalization.  For
communications relevant to an issue in proceedings to hospitalize the victim
for mental illness or substance abuse, or in proceedings for the discharge or
release of a victim previously hospitalized for mental illness or substance
abuse.



(6)  Examination by order of court.  If the court
orders an examination of the physical, mental, or emotional condition of a
victim, whether a party or a witness, communications made in the course thereof
are not privileged under this rule with respect to the particular purpose of
which the examination is ordered unless the court orders otherwise.



(7)  Condition an element of claim or defense.  As to
a communication relevant to the physical, mental, or emotional condition of the
victim in any proceeding in which the victim relies upon the condition as an
element of the victim's claim or defense or, after the victim's death, in any
proceeding in which any party relies upon the condition as an element of the
party's claim or defense.



(8)  Proceedings against the victim counselor.  In any
administrative or judicial proceeding in which the competency or practice of
the victim counselor or of the victim counseling program is at issue, provided
that the identifying data of the victims whose records are admitted into
evidence shall be kept confidential unless waived by the victim.  The
administrative agency, board or commission shall close to the public any
portion of a proceeding, as necessary to protect the confidentiality of the
victim. [L 1992, c 217, §5; am L 1993, c 193, §2; am L 2008, c 154, §27]



 



Revision Note



 



  Only the subsection amended is compiled in this Supplement.



 



RULE 505.5 COMMENTARY



 



  This rule, which resembles victim-counselor privilege
provisions now in existence in some twenty states, e.g., Cal. Evid. Code §§1035
through 1037.7 (1992), encourages and protects the counseling of emotionally
distressed victims of violent crimes by according privilege status to confidential
communications made in the course of the counseling process.  In adopting a
similar law, N.J. Stat. Ann. §2A:84A-22.13 and 22.15 (1991), the New Jersey
Legislature declared that the "counseling of victims is most successful
when the victims are assured [that] their thoughts and feelings will remain
confidential and will not be disclosed without their permission."  The
present provision proceeds upon just such a policy basis.



 



RULE 505.5 SUPPLEMENTAL COMMENTARY



 



  The Act 154, Session Laws 2008 amendment replaced the term "dependent
adult" with the term "vulnerable adult" in subsection (d)(4),
with reference to chapter 346, part X.  Act 154 amended chapter 346, part X,
by, among other things, expanding the category of adults eligible for adult
protective services by replacing the term "dependent adult" with the
less restrictive term "vulnerable adult". 



 



Law Journals and Reviews



 



  Empowering Battered Women:  Changes in Domestic Violence Laws
in Hawai`i.  17 UH L. Rev. 575.



 



Case Notes



 



  When a statutory privilege interferes with a defendant's
constitutional right to cross-examine, then, upon a sufficient showing by the
defendant, the witness' statutory privilege must, in the interest of the
truth-seeking process, bow to the defendant's constitutional rights.  101 H.
172, 65 P.3d 119.