Section 1035.4 Of Article 8.5. Sexual Assault Counselor-victim Privilege From California Evidence Code >> Division 8. >> Chapter 4. >> Article 8.5.
1035.4
. As used in this article, "confidential communication
between the sexual assault counselor and the victim" means
information transmitted between the victim and the sexual assault
counselor in the course of their relationship and in confidence by a
means which, so far as the victim is aware, discloses the information
to no third persons other than those who are present to further the
interests of the victim in the consultation or those to whom
disclosures are reasonably necessary for the transmission of the
information or an accomplishment of the purposes for which the sexual
assault counselor is consulted. The term includes all information
regarding the facts and circumstances involving the alleged sexual
assault and also includes all information regarding the victim's
prior or subsequent sexual conduct, and opinions regarding the victim'
s sexual conduct or reputation in sexual matters.
The court may compel disclosure of information received by the
sexual assault counselor which constitutes relevant evidence of the
facts and circumstances involving an alleged sexual assault about
which the victim is complaining and which is the subject of a
criminal proceeding if the court determines that the probative value
outweighs the effect on the victim, the treatment relationship, and
the treatment services if disclosure is compelled. The court may also
compel disclosure in proceedings related to child abuse if the court
determines the probative value outweighs the effect on the victim,
the treatment relationship, and the treatment services if disclosure
is compelled.
When a court is ruling on a claim of privilege under this article,
the court may require the person from whom disclosure is sought or
the person authorized to claim the privilege, or both, to disclose
the information in chambers out of the presence and hearing of all
persons except the person authorized to claim the privilege and such
other persons as the person authorized to claim the privilege is
willing to have present. If the judge determines that the information
is privileged and must not be disclosed, neither he or she nor any
other person may ever disclose, without the consent of a person
authorized to permit disclosure, what was disclosed in the course of
the proceedings in chambers.
If the court determines certain information shall be disclosed,
the court shall so order and inform the defendant. If the court finds
there is a reasonable likelihood that particular information is
subject to disclosure pursuant to the balancing test provided in this
section, the following procedure shall be followed:
(1) The court shall inform the defendant of the nature of the
information which may be subject to disclosure.
(2) The court shall order a hearing out of the presence of the
jury, if any, and at the hearing allow the questioning of the sexual
assault counselor regarding the information which the court has
determined may be subject to disclosure.
(3) At the conclusion of the hearing, the court shall rule which
items of information, if any, shall be disclosed. The court may make
an order stating what evidence may be introduced by the defendant and
the nature of questions to be permitted. The defendant may then
offer evidence pursuant to the order of the court. Admission of
evidence concerning the sexual conduct of the complaining witness is
subject to Sections 352, 782, and 1103.