By Maricarmen Garza
The right to privacy is a fundamental right enjoyed by all Americans. However, this vital right has often become the first thing to vanish for victims of domestic violence or sexual assault. It has been said that rape is the only crime in which the victim is treated like a suspect. Until the emergence of the #MeToo movement, a victim’s denouncement of sexual assault routinely was treated with suspicion, with every detail of her or his behavior questioned: What was the victim was wearing? Was the victim drinking? Did the victim invite the assault? Does the victim want publicity, money, or attention? Domestic violence victims often have faced similarly skeptical responses: It takes two to tango. The victim probably encouraged it. Or the victim is trying to get an advantage in the custody or the divorce case.
Not only is every peccadillo of a victim’s life often scrutinized and exposed for the world to see. Even actions that our society values and encourages – like seeking the life-saving services of domestic violence programs and rape crisis centers – can become minefields for victims. The defenders of accused assailants have often sought records from domestic violence and rape crisis centers in order to meticulously cross-examine the behavior or record of victims, or to completely discredit them. In effect, the painful experiences that victims shared at crisis centers have been fodder in the defense of the people who assaulted them. Attorneys prosecuting the assailants also have sought records from crisis centers in their efforts to establish elements of the crimes.
So how do we make sure the records of victims’ most vulnerable moments are not used against them? How do we ensure that they can confidently access the services they desperately need to restore their lives?
The Violence Against Women Act (VAWA) and the Family Violence Prevention Services Act (FVPSA) recognize the courage that it takes for victims to come forward to seek assistance. They acknowledge that by seeking services, survivors self-identify as victims of highly stigmatized crimes. Victims also expose the emotional and physical scars left by the violence. And the release of victims’ information creates a safety risk for them. As such, VAWA, FVPSA and later the Victim of Crimes Act (VOCA) imposed strict confidentiality restrictions as a condition of any grants released to crisis centers and authorized the release of victim information only under the most limited circumstances – namely, the client’s express written consent; statutory requirement (i.e. duty to report child and elder abuse); or by a court order.
Most domestic violence programs and rape crisis centers in Texas receive VAWA, FVPSA, and VOCA funding. Article I, Section 30 of the Texas Constitution guarantees victims the right to be treated with fairness and respect for the victim’s dignity and privacy throughout the criminal justice process. However, there are no provisions addressing how that right to privacy can be enforced or defining penalties for violating the same. The Texas Code of Criminal Procedure § 56.09 requires that as much as it is reasonably practical, the address of the victim may not be a part of the court file, except as it is necessary to identify the place of the crime. Nor can the phone number of the victim be a part of the court file. Until September 1, 2017, these protections – victim-centered grant conditions which could be overruled by court order; and unenforceable and very limited protections for the confidentiality of the victim’s address and phone number – were the only legal mechanisms for protecting victims’ private experiences.
Then, during the past legislative session, something remarkable happened. Texas joined at least 28 other states in extending the protection of legal privilege to communications between victims and advocates of domestic violence programs. State Representative Abel Herrero, of Corpus Christi, authored the Victim Information Privacy (VIP) bill (HB 3649), which was filed on March 9, 2017, signed by the governor on June 15, and took effect on Sept. 1. The VIP Act (VIPA) amended Subtitle C, Title 4 of the Texas Family Code to create Chapter 93, which establishes privilege for written and oral communications exchanged between a victim of family violence and an advocate at a family violence center. In other words, confidentiality of the painful, intensely private experiences that victims often share with advocates at crisis centers is now legally protected.
The law is new, and there’s still much work to be done to implement it and educate prosecutors, courts, and the private bar, but it’s already available for victims. Domestic violence programs have been required by the Texas Health and Human Services Commission to update and revise their policies to reflect the change in the law by Feb. 28.
Texas RioGrande Legal Aid (TRLA) has been proud to work alongside the Texas Council on Family Violence to educate domestic violence programs regarding the new privacy law and has been responding to subpoenas issued to its partner domestic violence programs. We are encouraged by the response from the courts, but most importantly we are encouraged by the effect the new privacy law has had on victims. Victims can now feel safe accessing life-saving services at domestic violence programs. They need not fear that the information they share will be used against them.
If you would like to schedule a training regarding the new Victim Information Privacy Act, please contact me at firstname.lastname@example.org.