The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
Confidentiality of communications between domestic violence counselor and victim
The domestic violence counselor-victim privilege created by 1984 PA 330 does not prohibit a crisis center counselor from disclosing to law enforcement authorities the whereabouts of an alleged domestic violence victim.
Opinion No. 6953
September 16, 1997
Thomas L. Smithson
Delta County Prosecuting Attorney
310 Ludington Street
Escanaba, MI 49829
You have asked whether the domestic violence counselor-victim privilege created by 1984 PA 340 prohibits a domestic violence counselor from disclosing to law enforcement authorities the whereabouts of an alleged domestic violence victim.
The scenario you describe involves the police responding to a domestic dispute, observing evidence of possible domestic violence, and being told by the suspected perpetrator at the scene, that the alleged victim's whereabouts is unknown. The police then contact a local domestic violence shelter or crisis center which declines to disclose the alleged victim's whereabouts. Consequently, the police are frustrated in their ability to contact the alleged victim, determine whether the victim is safe, and attempt to interview the victim, should he or she choose to talk to police.
In 1984 PA 340, MCL 600.2157a; MSA 27A.2157(1), the Legislature amended the revised Revised Judicature Act to include a sexual assault/domestic violence counselor-victim privilege. Section 2157a(1)(a) defines a "confidential communication" as:
[I]nformation transmitted between a victim and a sexual assault or domestic violence counselor, or between a victim or sexual assault or domestic violence counselor and any other person to whom disclosure is reasonably necessary to further the interests of the victim, in connection with the rendering of advice, counseling, or other assistance by the sexual assault or domestic violence counselor to the victim.
Section 2157a(2) provides that without a victim's written consent, counselor-victim confidential communications are not admissible as evidence.
[A] confidential communication, or any report, working paper, or statement contained in a report or working paper, given or made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim.
To determine the purpose of section 2157a, we may examine the legislative history of HB 4609, which became 1984 PA 340. That legislative history discussed the contents of the bill as follows:
The bill would add a new section to the Revised Judicature Act to provide for the confidentiality of information transmitted between a person who has been the victim, or who alleges to have been the victim, of sexual assault or domestic violence and a counselor working with a sexual assault or domestic violence crisis intervention center. The confidentiality would also apply to communications between the victim and any other person to whom information was necessarily disclosed in the course of counseling.
Except for information which must be disclosed under the provisions of the Child Protection Law, information transmitted between the victim and the counselor would not be admissible as evidence in any criminal or civil proceeding without the written consent of the victim.
House Legislative Analysis, HB 4609, November 16, 1983.
A plain reading of section 2157a(2) discloses that domestic violence counselor-victim communications are rendered inadmissible as evidence, absent a victim's written consent. Nothing contained in this statute, however, prohibits other non-evidentiary uses of such counselor-victim communications. In interpreting a statute, courts look to the plain meaning of the law at issue. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 224; 507 NW2d 422 (1993). If the plain and ordinary meaning of the statutory language is clear, judicial construction is normally neither necessary nor permissible. In re Lee Estate, 193 Mich App 586, 589; 484 NW2d 411 (1992).
The only reported decision construing section 2157a is People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994), cert den 513 US 1121; 115 S Ct 923; 130 L Ed 2d 802 (1995), which limits a defendant's access to the substantive content of confidential communications for use as evidence against the victim in a criminal proceeding. However, this case has no application to the instant question, which concerns the nonevidentiary sharing of counselor-victim communications.
Domestic violence shelters and other crisis centers are free to adopt whatever policies they wish regarding the voluntary disclosure of an alleged victim's whereabouts. Section 2157a, however, does not prohibit crisis center counselors from disclosing an alleged domestic violence victim's whereabouts to law enforcement personnel.
It is my opinion, therefore, that the domestic violence counselor-victim privilege created by 1984 PA 340 does not prohibit a domestic violence counselor from disclosing to law enforcement authorities the whereabouts of an alleged domestic violence victim.
FRANK J. KELLEY
STATE OF MICHIGAN