SB439: Bill Text

LRB-2868/2

MGD:jld:pg

2001 - 2002 LEGISLATURE

2001 Senate BILL 439

February 13, 2002 - Introduced by Senators Burke, Darling, George, Hansen, Huelsman, Moore, Plache, Roessler and Harsdorf, cosponsored by Representatives Lippert, Boyle, Coggs, Cullen, Hahn, Kaufert, Krawczyk, La Fave, Lassa, J. Lehman, Meyerhofer, Miller, Musser, Olsen, Pocan, Richards, Shilling, Stone, Turner, Ward, Wasserman, Wieckert and Berceau. Referred to Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.

SB439,1,4 An Act to create 905.045 of the statutes; relating to: an evidentiary privilege for communications made to a person employed by or volunteering with an organization providing counseling, assistance, or support services to victims of sexual assault or abusive conduct.

Analysis by the Legislative Reference Bureau

Under current law, with certain exceptions, a patient has a privilege in a court and in certain administrative proceedings to refuse to disclose, and to prevent any other person from disclosing, confidential communications and information relating to the diagnosis or treatment of the patient's physical, mental, or emotional condition, if the communication was made or the information was shared between the patient, certain health care providers who are diagnosing or treating the patient, and other persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of a specified health care provider. The health care providers included under this privilege are physicians, registered nurses, chiropractors, psychologists, social workers, marriage and family therapists, and professional counselors.

The bill creates a new privilege for communications made and information shared between a victim of child abuse, interspousal battery, domestic abuse, or sexual assault (abusive conduct) and an individual (a victim advocate) who works with an organization that provides free counseling, assistance, or support services to such victims. Under the bill, a victim of abusive conduct has a privilege in a court and in certain administrative proceedings to refuse to disclose, and to prevent any other person from disclosing, confidential communications made or information obtained or disseminated among the victim, a victim advocate who is acting in the scope of his or her duties as an advocate, and persons who are participating in providing counseling, assistance, or support services under the direction of an advocate, if the communication was made or the information was obtained or disseminated for the purpose of providing counseling, assistance, or support services to the victim.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB439, s. 1 Section 1. 905.045 of the statutes is created to read:

SB439,2,3 905.045 Domestic violence or sexual assault advocate-victim privilege. (1) Definitions. In this section:

SB439,2,7 (a) "Abusive conduct" means abuse, as defined in s. 813.122 (1) (a), of a child, as defined in s. 48.02 (2), interspousal battery, as described under s. 940.19 or 940.20 (1m), domestic abuse, as defined in s. 813.12 (1) (a), or sexual assault under s. 940.225.

SB439,2,10 (b) "Advocate" means an individual who is an employee of or a volunteer for an organization the purpose of which is to provide counseling, assistance, or support services free of charge to a victim.

SB439,2,18 (c) A communication or information is "confidential" if not intended to be disclosed to 3rd persons other than persons present to further the interest of the person receiving counseling, assistance, or support services, persons reasonably necessary for the transmission of the communication or information, and persons who are participating in providing counseling, assistance, or support services under the direction of an advocate, including family members of the person receiving counseling, assistance, or support services and members of any group of individuals with whom the person receives counseling, assistance, or support services.

SB439,3,3 (d) "Victim" means an individual who has been the subject of abusive conduct or who alleges that he or she has been the subject of abusive conduct. It is immaterial that the abusive conduct has not been reported to any government agency.

SB439,3,11 (2) General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated among the victim, an advocate who is acting in the scope of his or her duties as an advocate, and persons who are participating in providing counseling, assistance, or support services under the direction of an advocate, if the communication was made or the information was obtained or disseminated for the purpose of providing counseling, assistance, or support services to the victim.

SB439,3,16 (3) Who may claim the privilege. The privilege may be claimed by the victim, by the victim's guardian or conservator, or by the victim's personal representative if the victim is deceased. The advocate may claim the privilege on behalf of the victim. The advocate's authority to do so is presumed in the absence of evidence to the contrary.

SB439,3,18 (4) Exceptions. Subsection (2) does not apply to any report concerning child abuse that an advocate is required to make under s. 48.981.

SB439,3,22 (5) Relationship to s. 905.04. If a communication or information that is privileged under sub. (2) is also a communication or information that is privileged under s. 905.04 (2), the provisions of s. 905.04 supersede this section with respect to that communication or information.

SB439, s. 2 Section 2. Initial applicability.

SB439,4,2 (1) This act first applies to communications made or information obtained or disseminated on the effective date of this subsection.

SB439,4,3 (End)