[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2315 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2315

 To require the Attorney General to develop model legislation for the 
 States to assure confidentiality of communications between victims of 
 sexual assault or domestic violence victims and their counselors, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 26 (legislative day, July 20), 1994

Mr. Hatch (for himself and Mr. Kennedy) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To require the Attorney General to develop model legislation for the 
 States to assure confidentiality of communications between victims of 
 sexual assault or domestic violence victims and their counselors, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Rape and Assault Victims Counseling 
Protection Act''.

SEC. 2. SENSE OF THE SENATE.

    It is the sense of the Senate that--
            (1) counseling programs for victims of sexual assault and 
        domestic violence, in which therapists and trained counselors 
        help victims cope with the trauma of these crimes and recover 
        from their debilitating effects, serve the valuable dual goals 
        of promoting the emotional and physical well-being of victims 
        and ensuring the reporting and prosecution of such crimes;
            (2) such counseling programs, at rape crisis centers and 
        elsewhere, can achieve these benefits only if the victims have 
        an expectation that the records of the counseling sessions will 
        be kept confidential, because otherwise victims fail to develop 
        the relationship of trust with their counselors that is 
        essential to effective treatment or decline to participate in 
        counseling programs altogether;
            (3) States have adopted a variety of approaches to 
        protecting the confidentiality of communications between 
        victims of sexual assault or domestic violence and their 
        counselors, including the creation of an absolute privilege for 
        such communications, qualified privileges that allow defendants 
        in criminal cases to obtain such communications in certain 
        circumstances and subject to certain procedures, and balancing 
        tests that weigh the probative value of such communications 
        against the effects of disclosure on the victim and the 
        treatment relationship;
            (4) in some States, however, criminal defendants in sexual 
        assault cases have been successful in obtaining court orders 
        requiring the production to defense counsel of records of 
        confidential counseling sessions with victims based on a 
        showing that such records are merely likely to be relevant to 
        an issue in the case;
            (5) although the best assurance that sexual assault and 
        domestic violence counseling programs will be successful is an 
        absolute privilege barring the disclosure of records of such 
        sessions or testimony about them, some courts have held that an 
        absolute privilege, by absolutely denying criminal defendants 
        the opportunity to obtain exculpatory evidence and present it 
        at trial, violates their rights under the Federal and State 
        constitutions; and
            (6) in order to ensure that the effectiveness of sexual 
        assault and domestic violence counseling programs will not be 
        undermined by the disclosure of confidential communications 
        with victims, no Federal or State court, in a criminal or civil 
        action, should order the disclosure of the records of 
        confidential communications between victims of such crimes and 
        their therapists or trained counselors, or compel testimony 
        from such therapists or counselors with respect to the 
        substance of their counseling, unless, at a minimum, the moving 
        party has demonstrated a particularized and compelling need for 
        such records or testimony, and the court has established 
        adequate procedural safeguards against unnecessary or damaging 
        disclosures.

SEC. 3. REPORT AND DEVELOPMENT OF MODEL LEGISLATION.

    (a) Study and Development of Model Legislation.--The Attorney 
General shall--
            (1) study and evaluate the manner in which the States have 
        taken measures to protect the confidentiality of communications 
        between sexual assault or domestic violence victims and their 
        therapists or trained counselors;
            (2) develop model legislation that will adequately protect 
        the confidentiality of such communications; and
            (3) prepare and disseminate to State authorities the 
        findings made as a result of the study and evaluation.
    (b) Report.--Not later than 1 year after the date of enactment of 
this Act, the Attorney General shall report to the Congress the 
findings of the study and evaluation required by this section and the 
need for and appropriateness of further action by the Federal 
Government.

SEC. 4. REVIEW OF FEDERAL EVIDENTIARY RULES.

    Not later than 1 year after the date of enactment of this Act, the 
Judicial Conference shall complete and submit to Congress a study 
evaluating whether the Federal Rules of Evidence should be amended, and 
if so how, to guarantee that the confidentiality of communications 
between sexual assault victims and their therapists or trained 
counselors will be adequately protected in Federal court proceedings.
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