SB3308 98TH GENERAL ASSEMBLY

LRB098 19434 HEP 54596 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB3308

Introduced 2/14/2014, by Sen. Jennifer Bertino-Tarrant

SYNOPSIS AS INTRODUCED:

735 ILCS 5/8-802.1	from Ch. 110, par. 8-802.1
750 ILCS 60/227	from Ch. 40, par. 2312-27

Amends the Code of Civil Procedure and the Illinois Domestic Violence Act of 1986. Provides that if a victim of rape or domestic violence is deceased, has been adjudged by a court to be a person under legal disability, or has been reported missing for more than 6 months, a judge may inspect in camera the records of a rape crisis organization or domestic violence program to determine whether those records contain relevant information about the victim's death, legal disability, or disappearance and may order the disclosure of information the court determines is necessary for: (1) an official law enforcement investigation or criminal proceeding regarding the cause of that victim's death, legal disability, or disappearance; or (2) a guardianship or custody proceeding involving the victim's minor child or children.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by changing Section 8-802.1 as follows:

(735 ILCS 5/8-802.1) (from Ch. 110, par. 8-802.1)

Sec. 8-802.1. Confidentiality of Statements Made to Rape Crisis Personnel.

(a) Purpose. This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them. On or after July 1, 1984, "rape" means an act of forced sexual penetration or sexual conduct, as defined in Section 11-0.1 of the Criminal Code of 2012, including acts prohibited under Sections 11-1.20 through 11-1.60 or 12-13 through 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012. Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them. As a result they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes.

(b) Definitions. As used in this Act:

(1) "Rape crisis organization" means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual assault, sexual relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse.

(2) "Rape crisis counselor" means a person who is a psychologist, social worker, employee, or volunteer in any organization or association defined as a rape crisis organization under this Section, who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization.

(3) "Victim" means a person who is the subject of, or who seeks information, counseling, or advocacy services as a result of an aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual assault, sexual relations within families, criminal sexual abuse, aggravated criminal sexual abuse, sexual exploitation of a child, indecent solicitation of a child, public indecency, exploitation of a child, promoting juvenile prostitution as described in subdivision (a)(4) of Section 11-14.4, or an attempt to commit any of these offenses.

(4) "Confidential communication" means any communication between a victim and a rape crisis counselor in the course of providing information, counseling, and advocacy. The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided.

(c) Waiver of privilege.

(1) The confidential nature of the communication is not waived by: the presence of a third person who further expresses the interests of the victim at the time of the communication; group counseling; or disclosure to a third person with the consent of the victim when reasonably necessary to accomplish the purpose for which the counselor is consulted.

(2) The confidential nature of counseling records is not waived when: the victim inspects the records; or in the case of a minor child less than 12 years of age, a parent or guardian whose interests are not adverse to the minor inspects the records; or in the case of a minor victim 12 years or older, a parent or guardian whose interests are not adverse to the minor inspects the records with the victim's consent, or in the case of an adult who has a guardian of his or her person, the guardian inspects the records with the victim's consent.

(3) When a victim is deceased, the executor or administrator of the victim's estate may waive the privilege established by this Section, unless the executor or administrator has an interest adverse to the victim.

(4) A minor victim 12 years of age or older may knowingly waive the privilege established in this Section. When a minor is, in the opinion of the Court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, unless the parent or guardian has been charged with a violent crime against the victim or otherwise has any interest adverse to that of the minor with respect to the waiver of the privilege.

(5) An adult victim who has a guardian of his or her person may knowingly waive the privilege established in this Section. When the victim is, in the opinion of the court, incapable of knowingly waiving the privilege, the guardian of the adult victim may waive the privilege on behalf of the victim, unless the guardian has been charged with a violent crime against the victim or otherwise has any interest adverse to the victim with respect to the privilege.

(d) Confidentiality. Except as provided in this Act, no rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the written consent of the victim or a representative of the victim as provided in subparagraph (c).

(e) A rape crisis counselor may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. Any rape crisis counselor or rape crisis organization participating in good faith in the disclosing of records and communications under this Act shall have immunity from any liability, civil, criminal, or otherwise that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this Section, the good faith of any rape crisis counselor or rape crisis organization who disclosed the confidential communication shall be presumed.

(e-5) If a victim is deceased, has been adjudged by a court to be a person under legal disability, or has been reported missing for more than 6 months, a judge may inspect in camera the records of a rape crisis organization to determine whether those records contain relevant information about the victim's death, legal disability, or disappearance and may order the disclosure of information the court determines is necessary for:

(1) an official law enforcement investigation or criminal proceeding regarding the cause of that victim's death, legal disability, or disappearance; or

(2) a guardianship or custody proceeding involving the victim's minor child or children.

(f) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor.

(Source: P.A. 96-1010, eff. 1-1-11; 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)

Section 10. The Illinois Domestic Violence Act of 1986 is amended by changing Section 227 as follows:

(750 ILCS 60/227) (from Ch. 40, par. 2312-27)

Sec. 227. Privileged communications between domestic violence counselors and victims.

(a) As used in this Section:

(1) "Domestic violence program" means any unit of local government, organization, or association whose major purpose is to provide one or more of the following: information, crisis intervention, emergency shelter, referral, counseling, advocacy, or emotional support to victims of domestic violence.

(2) "Domestic violence advocate or counselor" means any person (A) who has undergone a minimum of forty hours of training in domestic violence advocacy, crisis intervention, and related areas, and (B) who provides services to victims through a domestic violence program either on an employed or volunteer basis.

(3) "Confidential communication" means any communication between an alleged victim of domestic violence and a domestic violence advocate or counselor in the course of providing information, counseling, or advocacy. The term includes all records kept by the advocate or counselor or by the domestic violence program in the course of providing services to an alleged victim concerning the alleged victim and the services provided. The confidential nature of the communication is not waived by the presence at the time of the communication of any additional persons, including but not limited to an interpreter, to further express the interests of the domestic violence victim or by the advocate's or counselor's disclosure to such an additional person with the consent of the victim when reasonably necessary to accomplish the purpose for which the advocate or counselor is consulted.

(4) "Domestic violence victim" means any person who consults a domestic violence counselor for the purpose of securing advice, counseling or assistance related to one or more alleged incidents of domestic violence.

(5) "Domestic violence" means abuse as defined in the Illinois Domestic Violence Act.

(b) No domestic violence advocate or counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal case or proceeding or in any legislative or administrative proceeding without the written consent of the domestic violence victim except (1) in accordance with the provisions of the Abused and Neglected Child Reporting Act or (2) in cases where failure to disclose is likely to result in an imminent risk of serious bodily harm or death of the victim or another person.

(c) A domestic violence advocate or counselor who knowingly discloses any confidential communication in violation of this Act commits a Class A misdemeanor.

(d) When a domestic violence victim is deceased or has been adjudged incompetent by a court of competent jurisdiction, the guardian of the domestic violence victim or the executor or administrator of the estate of the domestic violence victim may waive the privilege established by this Section, except where the guardian, executor or administrator of the estate has been charged with a violent crime against the domestic violence victim or has had an Order of Protection entered against him or her at the request of or on behalf of the domestic violence victim or otherwise has an interest adverse to that of the domestic violence victim with respect to the waiver of the privilege. In that case, the court shall appoint an attorney for the estate of the domestic violence victim.

(d-5) If a victim is deceased, has been adjudged by a court to be a person under legal disability, or has been reported missing for more than 6 months, a judge may inspect in camera the records of a domestic violence program to determine whether those records contain relevant information about the victim's death, legal disability, or disappearance and may order the disclosure of information the court determines is necessary for:

(1) an official law enforcement investigation or criminal proceeding regarding the cause of that victim's death, legal disability, or disappearance; or

(2) a guardianship or custody proceeding involving the victim's minor child or children.

(e) A minor may knowingly waive the privilege established by this Section. Where a minor is, in the opinion of the court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, except where such parent or guardian has been charged with a violent crime against the minor or has had an Order of Protection entered against him or her on request of or on behalf of the minor or otherwise has any interest adverse to that of the minor with respect to the waiver of the privilege. In that case, the court shall appoint an attorney for the minor child who shall be compensated in accordance with Section 506 of the Illinois Marriage and Dissolution of Marriage Act.

(f) Nothing in this Section shall be construed to limit in any way any privilege that might otherwise exist under statute or common law.

(g) The assertion of any privilege under this Section shall not result in an inference unfavorable to the State's cause or to the cause of the domestic violence victim.

(Source: P.A. 87-1186.)