Ambiguity In Advocate Privilege Law

A pair of recent enactments by the Washington Legislature leaves uncertainty about just who qualifies as a “sexual assault advocate.” Persons who qualify as sexual assault advocates are entitled to communicate in confidence with sexual assault complainants.

The new laws are HB 2848, covering domestic violence advocates, and HB 2454, covering sexual assault advocates.

HB 2848 provides, “A domestic violence advocate may not, without the consent of the victim, be examined as to any communication between the victim and the domestic violence advocate.” HB 2848 goes on to define “domestic violence advocate” to exclude persons employed by criminal justice and child protection agencies:

For purposes of this section, “domestic violence advocate” means an employee or supervised volunteer from a community-based domestic violence program or human services program that provides information, advocacy, counseling, crisis intervention, emergency shelter, or support to victims of domestic violence and who is not employed by, or under the direct supervision of, a law enforcement agency, a prosecutor’s office, or the child protective services section of the department of social and health services.

That exclusion is important. Prosecutors in Washington often employ advocates for complaining witnesses. Unlike lawyers, these workers have no regulatory body to set and enforce rules on how they do their jobs. In the adversary system of justice, such advocates are tempted to help their employers win convictions. In particular, they are tempted to advise complainants on how to make their complaints more credible.

If the privilege of confidentiality prevented the lawyer for the accused from inquiring about communications between the advocate and the complainant, there would be little opportunity for witness coaching by the advocate to be discovered—and so less reason for advocates to avoid it.

HB 2454 expands the privilege for sexual assault advocates. It used to cover only communications from complainants to such advocates. It now covers communications from the advocates to the complainants, too: “A sexual assault advocate may not, without the consent of the victim, be examined as to any communication made between the victim and the sexual assault advocate.”

HB 2454 leaves unchanged the definition of “sexual assault advocate” in an earlier enactment, which does not mention law enforcement, prosecutors, or Child Protective Services:

For purposes of this section, “sexual assault advocate” means the employee or volunteer from a rape crisis center, victim assistance unit, program, or association, that provides information, medical or legal advocacy, counseling, or support to victims of sexual assault, who is designated by the victim to accompany the victim to the hospital or other health care facility and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.

The courts will need to decide whether to limit the term, as the Legislature has limited the term “domestic violence advocate,” to persons who do not work for law enforcement, a prosecutor’s office, or Child Protective Services.

Domestic violence advocates consulted and worked with criminal defense lawyers to define “domestic violence advocate” for purposes of establishing a privilege in HB 2848. Seattle lawyer Kim Gordon brought to my attention the differing approaches in defining “sexual assault advocate” and “domestic violence advocate” and the resulting ambiguity. Thank you, Kim!