People v. Savedo, 2017 IL App (1st) 152541 (March). Episode 338 (Duration 8:37)
The domestic violence advocate-victim privilege comes under scrutiny but survives intact.
This case involves a domestic violence advocate held in contempt for refusing to provide subpoenaed materials involving a criminal defendant who was being counseled by the domestic violence advocacy center, Sarah’s Inn.
Originally, defendant was charged with armed robbery while she was receiving services from the shelter.
During that trial, defendant allegedly made statements to a Sarah’s Inn advocate that threatened to harm one of the State’s witnesses, a police detective. The advocate disclosed the statements to the police pursuant to an exception to the advocate-victim privilege for imminent risks of serious bodily harm or death.
New Charge & Subpoena
Later, defendant was indicted for threatening a public official based on the disclosed statements, and the State eventually served a subpoena on Sarah’s Inn to produce documents generated in connection with the report of defendant’s threatening statements.
Sarah’s Inn moved to quash the subpoena based on the privilege for confidential communications between domestic violence advocates and victims.
The circuit court ordered Sarah’s Inn to produce the documents for in camera review, but Sarah’s Inn and Gall refused. The circuit court held them in direct civil and criminal contempt but stayed the imposition of the fine pending the outcome of this appeal.
The issue in the case asks whether or not the center must turn over the subpoenaed documents.
The issue raised concerns the scope of the domestic violence advocate-victim privilege provision of the Act. Other evidentiary privileges are discussed on this Illinois evidence resource page.
When the Act was enacted in 1986, the General Assembly recognized that domestic violence was a serious crime and the legal system historically had dealt ineffectively with family violence.
Section 227 of the Act specifically protects confidential communications between domestic violence counselors/advocates and victims and states, in pertinent part:
“(a) As used in this Section: * * * (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. *** (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 the Act commits a Class A misdemeanor. * * * (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.”
The center contends that the nature of this privilege is absolute and thus not subject to any in camera inspection by the court.
Everyone agrees that defendant made the statement to her domestic violence advocate while that advocate was attending defendant’s armed robbery trial in accordance with the advocate’s job to provide information, counseling, or advocacy. The privilege has not been waived by defendant or broken by the advocate’s disclosure pursuant to the imminent risk exception.
Privilege Has Exceptions
The State argues an advocate must actually be providing the victim counseling or support regarding incidents of domestic violence at the time of the communication in order for the privilege to apply, and consequently the advocate’s mere accompaniment of defendant at the armed robbery trial fails to meet this requirement.
In addition, at the time of the statement, defendant was not a domestic violence victim but rather a defendant in her own criminal case.
Moreover, the nature of defendant’s statement demonstrates that the conversation did not take place under the guise of domestic violence counseling because the threat was wholly unrelated to any incident of domestic violence and was directed toward a third party, the detective who testified against defendant in the armed robbery trial.
Further, the State argues that if the threat was made in an advocate-victim context, the threat is still subject to disclosure because it clearly met the exception for the disclosure of communications that present an imminent risk of serious harm and this exception does not expire.
The reviewing court agreed with the center.
First of all the act is intended to cover a broad sweep of communication.
That is the only way it can be effective at meeting its goals. The legislative intent to encourage victims of domestic violence to share confidential information with their advocates without the fear that the very act of seeking or receiving information, counseling, and advocacy will subject them to stigmatization or further victimization.
By its plain terms, section 227(a)(3) protects “any” communication between defendant and the Sarah’s Inn advocate in the normal series of acts or events of providing information, counseling or advocacy. The court discerned no language within this statutory provision that indicates the General Assembly intended to confine the privilege to protect only statements that are limited to the subject of domestic violence.
No Indefinite Disclosure
A correct reading of the statute indicates that the legislature intended to include within its scope any communication beyond the topic of domestic violence, even statements unrelated to the information, counseling, or advocacy being provided to the victim. The reviewing court also held that the plain language of the statute uses the present tense and requires the risk of harm to be “imminent,” which means “ready to take place, that is, hanging threateningly over one’s head.”
There is no support in the statute for the State’s assertion that once an advocate properly utilizes the imminent risk exception, the statement is subject to disclosure indefinitely.
Clearly, this disclosure exception is tied to the requirement of an imminent risk.
Additionally, here the criminal rules of discovery, namely the in camera inspection section, did not overrule any provision of the act. Illinois Supreme Court Rule 415(f) provides that:
“Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.”
However, a privilege may be absolute or qualified in nature, and there are crucial distinctions between the two.
If information is protected from disclosure pursuant to an absolute privilege, the opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need for the privileged information. In such a case, the appropriate inquiry is whether the information sought falls within the scope of the privilege.
If it does, the information is protected from discourse and the inquiry ends.
By contrast, a qualified privilege can be defeated if the party seeking discovery of the privileged information can demonstrate that his or her need for the materials is sufficiently great to overcome the privilege.
To meet this burden, the party seeking the information must show the importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means.
After the burden is met, the court then balances the demonstrated need for the privileged information against the degree of intrusion upon the confidentiality of the privileged communications necessary to satisfy the need.
When the legislature created the advocate-victim privilege, they created an absolute privilege.
The plain language of section 227 of the Act indicates the legislature believed the overriding public good requires that domestic violence advocates and victims must be able to communicate with each other freely and frankly without fear that their communications might be publicly disclosed and anything less than the protection afforded by an absolute privilege would adversely affect the freedom of their communication.
But sometimes an in camera inspection may be appropriate.
If a subpoena reveals on its face that the documents sought fall within the scope of an absolute privilege, the court does not need to look further than the face of the request.
If it cannot be immediately determined whether the sought documents are protected from discovery under the advocate-victim privilege, the Illinois Supreme Court Rules authorize the court to evaluate the applicability of the asserted privilege and determine the need for an in camera inspection of the documents.
Here, the court held that the undisputed facts concerning the communication and the face of the subpoena establish that the documents sought by the State are absolutely protected from disclosure under the advocate-victim privilege.
Accordingly, there is no necessity in the instant case for the circuit court to invoke its authority to conduct an in camera review of the sought documents.
The trial court’s judgment of contempt and vacate the fine imposed by the court was reversed. The center’s motion to quash the subpoena should have been granted.