What Are the Potential Privacy Issues?
Privacy issues11 may weigh on farmworker victims significantly as victims may work, migrate and live in close proximity to the perpetrator. They may risk a great deal by telling anyone, including service providers, about the assault. Having control over who has access to what information about the assault can help victims feel safe enough to access social services and pursue legal remedies. Therefore, when clients do come forward, there are steps that you can take to protect their privacy.
- Do not make assurances of confidentiality unless you and the person to whom you are making assurances know what you mean.
- Only certain relationships are privileged and are dependent upon your jurisdiction, e.g. attorney-client, therapist-patient, clergy-penitent, advocate-victim.
- Not all privileges are the same, i.e. some are qualified and some are absolute.
- Inform clients if you are a mandatory reporter and what obligates you to report.
Explain privacy to farmworkers. It is likely that farmworker victims will have had little or no experience with the concepts of confidentiality, privileged communications, mandatory reporting and releases and waivers. Take additional time to explain these issues and how they may affect decisions related to the assault. You should be able to explain clearly and understandably:
- The difference between a privileged and a non-privileged communication;
- How waiver of privilege might occur;
- The purpose and function of authorized releases;
- How released information might be used against a victim in the future;
- How mandatory reporting laws relate to minor and vulnerable adult victims of sexual assault; and
- If you are a mandatory reporter and what obligates you to make a report.
Explain privilege. Explain to victims how you can help protect their privacy and the limitations to those protections. While an attorney’s private communications with a client are privileged, a victim’s communications with providers such as a therapist, advocate, or medical provider may not be well protected from disclosure, depending on the applicable federal and state law. Advise your clients on whether privilege exists with each of the providers with whom they work.
Friends/family at appointments. Often female farmworkers bring their husband or a friend to a provider appointment. In this case, explain to the victim and her husband or friend that you must speak with the victim alone because if anyone else is present, your privilege, if applicable, may be waived. Waiver of a privilege means that you or your files could be subpoenaed in a court proceeding. Be cognizant that some sexual assault victims are also victims of domestic violence. Telling a victim’s intimate partner that he cannot attend the meeting might put the victim at risk for violence in the home. This should be discussed with your client and you should help the client with the related safety concerns.
Taking the time to talk about privacy and confidentiality is an opportunity for attorneys to build trust with victims. It validates victims’ needs for autonomy and control and empowers them to make informed decisions about issues related to the sexual assault.
Identify privacy issues. Farmworker victims may not identify their privacy concerns as such. It is more likely that they will express concerns about others finding out about the sexual violence or ask about what information must be revealed in order to pursue social services or legal remedies. You can help victims weigh the benefits of receiving social and medical services and pursuing civil and criminal remedies with the burdens of releasing private information. Additionally, you can help victims strategize how to protect private information when services and remedies are sought.
Help victims identify what information:
- Is in the public sphere about the victim and about the perpetrator, including information in electronic formats such as text messages, voice mail messages and emails;
- Has been disclosed about the assault and to whom and how it was disclosed;
- Has not yet been released that the victim is concerned may be released; and
- The victim wants to keep private. Once privacy concerns are identified, work with the victim to address the concerns.
Explain the Sexual Assault Forensic Examination (SAFE).12 Be prepared to explain the purpose and steps involved in undergoing a SAFE exam including how evidence is collected and how it may be used in civil and/or criminal litigation. Be aware that some farmworkers may never have undergone such an exam; even if they have, it can be especially violating and retraumatizing. Victims must make informed decisions about whether to undergo the exam, including understanding how medical records may be subpoenaed or used in legal proceedings.
It is critical to remember that your client’s privacy concerns are not static. Indeed, they often change throughout the course of represetation. For this reason, it is important to check back often with your client to discuss whether and how privacy concerns and needs may have changed.
Victim privacy within your organization.13 Unintentional disclosures of victims’ private information may occur within a law office. Some ways your agency can rigorously protect victim privacy:
- Have confidentiality practices—including record-keeping policies—that protect victim privacy and are reviewed and updated often, as laws regarding victim privacy change;
- Avoid casual conversations about clients within your agency and in public spaces such as hallways, elevators, lunchrooms, etc.;
- Impress upon farmworker victims the urgency in maintaining contact with you and other service providers when migrating, so that releases and other communications can be kept current;
- Have and follow your organization’s subpoena response policy, as victim’s private information is in danger of being released due to an improper subpoena or record request;
- Understand all partners’ information-sharing policies if your agency participates in community collaborations, including coordinated community response teams. Farmworker victims should decide what information can or cannot be disclosed to each partner.
- If your agency is an Office of Violence Against Women grantee, ensure that your release of information forms are VAWA compliant—written, reasonably time limited, revocable, sufficiently specific and signed with the victim’s informed consent; stay current on funders’ confidentiality requirements, especially VAWA, Victims of Crime Act (VOCA), Family Violence Prevention and Services Act (FVPSA), etc.14
Practical tips for how you can help protect a farmworker client’s privacy:
- When interviewing your client, determine who knows what about the sexual assault– e.g. friends, family, employers, landlords or medical providers–and how they received the information (i.e. letters, verbally, cell phone message or text message);
- Strategize with clients about how you can protect their privacy after disclosure;
- When creating a case plan, work directly with the client to determine what information needs to be disclosed to achieve the client’s goals;
- Be proactive about private information:
- Send written notice to record holders;
- Request notice before records are released;
- Explain to clients how private information can be used against them in legal proceedings; and
- Pay attention to how minor’s privacy rights may be different (more limited) than adults;
- Challenge subpoenas, as appropriate, including subpoenas issued by the prosecutor’s office and received by a third party or victim;
- Request notice from third parties if they receive a subpoena;
- Protect victims in defense interviews to the extent permitted; and
- With client’s consent, contact service providers and others to explain laws governing privacy.
- What words would I use to explain attorney-client privilege and waiver of privilege to a farmworker victim of sexual violence?
- Does our intake form for legal services include questions about the client’s most pressing privacy issues?
- What additional training and policies does my organization’s legal program need regarding protecting victim privacy?