Federal Court Recognizes Victim–Advocate Privilege in Sexual-Assault Cases

The majority of states maintain confidentiality—not necessarily privilege—statutes prohibiting sexual-assault advocates from disclosing discussions with their victim–clients absent court order.  There is no federal statutory counterpart, so the question arises whether a federal common-law privilege protects from compelled disclosure a sexual-assault victim’s communications with his or her advocate.

In Doe v. Old Dominion University, 289 F. Supp. 3d 744 (E.D. Va. 2018), the USDC for the Eastern District of Virginia performed a privilege-adoption analysis and recognized a victim–advocate privilege because protecting victim–advocate communications “promotes sufficiently important interests to outweigh the need for probative evidence.”

This new evidentiary privilege is qualified, meaning that the court may order production of victim–advocate communications if their particular relevance to the case “outweighs the public policy in favor of keeping them confidential.”  You may read the full decision here.

Background

In Doe v. ODU, the plaintiff alleged that, on October 11, 2014 while a freshman in the ODU Honors College Program, an on-campus visitor raped her in her college dorm room.  On October 25, 2014, the victim met with Laura Dunn, the founder and then-Executive Director of SurvJustice, an organization that supports sexual-assault victims. Ms. Dunn and the victim held many discussions, including exchanging 150 emails.

The victim–plaintiff brought a federal, Title IX case alleging that ODU failed to prevent the “foreseeable sexual assault.”  ODU moved to compel production of communications between the victim and Ms. Dunn.  The victim–plaintiff argued that the victim–advocate privilege, purportedly arising from Virginia Code § 63.2-104.1, precluded disclosure.  ODU countered that federal law applied, and that federal law recognizes no such privilege. More…