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Full Text of SB3308  98th General Assembly

SB3308 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB3308

 

Introduced 2/14/2014, by Sen. Jennifer Bertino-Tarrant

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/8-802.1  from Ch. 110, par. 8-802.1
750 ILCS 60/227  from Ch. 40, par. 2312-27

    Amends the Code of Civil Procedure and the Illinois Domestic Violence Act of 1986. Provides that if a victim of rape or domestic violence is deceased, has been adjudged by a court to be a person under legal disability, or has been reported missing for more than 6 months, a judge may inspect in camera the records of a rape crisis organization or domestic violence program to determine whether those records contain relevant information about the victim's death, legal disability, or disappearance and may order the disclosure of information the court determines is necessary for: (1) an official law enforcement investigation or criminal proceeding regarding the cause of that victim's death, legal disability, or disappearance; or (2) a guardianship or custody proceeding involving the victim's minor child or children.


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A BILL FOR

 

SB3308LRB098 19434 HEP 54596 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by
5changing Section 8-802.1 as follows:
 
6    (735 ILCS 5/8-802.1)  (from Ch. 110, par. 8-802.1)
7    Sec. 8-802.1. Confidentiality of Statements Made to Rape
8Crisis Personnel.
9    (a) Purpose. This Section is intended to protect victims of
10rape from public disclosure of statements they make in
11confidence to counselors of organizations established to help
12them. On or after July 1, 1984, "rape" means an act of forced
13sexual penetration or sexual conduct, as defined in Section
1411-0.1 of the Criminal Code of 2012, including acts prohibited
15under Sections 11-1.20 through 11-1.60 or 12-13 through 12-16
16of the Criminal Code of 1961 or the Criminal Code of 2012.
17Because of the fear and stigma that often results from those
18crimes, many victims hesitate to seek help even where it is
19available at no cost to them. As a result they not only fail to
20receive needed medical care and emergency counseling, but may
21lack the psychological support necessary to report the crime
22and aid police in preventing future crimes.
23    (b) Definitions. As used in this Act:

 

 

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1        (1) "Rape crisis organization" means any organization
2    or association the major purpose of which is providing
3    information, counseling, and psychological support to
4    victims of any or all of the crimes of aggravated criminal
5    sexual assault, predatory criminal sexual assault of a
6    child, criminal sexual assault, sexual relations between
7    siblings, criminal sexual abuse and aggravated criminal
8    sexual abuse.
9        (2) "Rape crisis counselor" means a person who is a
10    psychologist, social worker, employee, or volunteer in any
11    organization or association defined as a rape crisis
12    organization under this Section, who has undergone 40 hours
13    of training and is under the control of a direct services
14    supervisor of a rape crisis organization.
15        (3) "Victim" means a person who is the subject of, or
16    who seeks information, counseling, or advocacy services as
17    a result of an aggravated criminal sexual assault,
18    predatory criminal sexual assault of a child, criminal
19    sexual assault, sexual relations within families, criminal
20    sexual abuse, aggravated criminal sexual abuse, sexual
21    exploitation of a child, indecent solicitation of a child,
22    public indecency, exploitation of a child, promoting
23    juvenile prostitution as described in subdivision (a)(4)
24    of Section 11-14.4, or an attempt to commit any of these
25    offenses.
26        (4) "Confidential communication" means any

 

 

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1    communication between a victim and a rape crisis counselor
2    in the course of providing information, counseling, and
3    advocacy. The term includes all records kept by the
4    counselor or by the organization in the course of providing
5    services to an alleged victim concerning the alleged victim
6    and the services provided.
7    (c) Waiver of privilege.
8        (1) The confidential nature of the communication is not
9    waived by: the presence of a third person who further
10    expresses the interests of the victim at the time of the
11    communication; group counseling; or disclosure to a third
12    person with the consent of the victim when reasonably
13    necessary to accomplish the purpose for which the counselor
14    is consulted.
15        (2) The confidential nature of counseling records is
16    not waived when: the victim inspects the records; or in the
17    case of a minor child less than 12 years of age, a parent
18    or guardian whose interests are not adverse to the minor
19    inspects the records; or in the case of a minor victim 12
20    years or older, a parent or guardian whose interests are
21    not adverse to the minor inspects the records with the
22    victim's consent, or in the case of an adult who has a
23    guardian of his or her person, the guardian inspects the
24    records with the victim's consent.
25        (3) When a victim is deceased, the executor or
26    administrator of the victim's estate may waive the

 

 

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1    privilege established by this Section, unless the executor
2    or administrator has an interest adverse to the victim.
3        (4) A minor victim 12 years of age or older may
4    knowingly waive the privilege established in this Section.
5    When a minor is, in the opinion of the Court, incapable of
6    knowingly waiving the privilege, the parent or guardian of
7    the minor may waive the privilege on behalf of the minor,
8    unless the parent or guardian has been charged with a
9    violent crime against the victim or otherwise has any
10    interest adverse to that of the minor with respect to the
11    waiver of the privilege.
12        (5) An adult victim who has a guardian of his or her
13    person may knowingly waive the privilege established in
14    this Section. When the victim is, in the opinion of the
15    court, incapable of knowingly waiving the privilege, the
16    guardian of the adult victim may waive the privilege on
17    behalf of the victim, unless the guardian has been charged
18    with a violent crime against the victim or otherwise has
19    any interest adverse to the victim with respect to the
20    privilege.
21    (d) Confidentiality. Except as provided in this Act, no
22rape crisis counselor shall disclose any confidential
23communication or be examined as a witness in any civil or
24criminal proceeding as to any confidential communication
25without the written consent of the victim or a representative
26of the victim as provided in subparagraph (c).

 

 

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1    (e) A rape crisis counselor may disclose a confidential
2communication without the consent of the victim if failure to
3disclose is likely to result in a clear, imminent risk of
4serious physical injury or death of the victim or another
5person. Any rape crisis counselor or rape crisis organization
6participating in good faith in the disclosing of records and
7communications under this Act shall have immunity from any
8liability, civil, criminal, or otherwise that might result from
9the action. In any proceeding, civil or criminal, arising out
10of a disclosure under this Section, the good faith of any rape
11crisis counselor or rape crisis organization who disclosed the
12confidential communication shall be presumed.
13    (e-5) If a victim is deceased, has been adjudged by a court
14to be a person under legal disability, or has been reported
15missing for more than 6 months, a judge may inspect in camera
16the records of a rape crisis organization to determine whether
17those records contain relevant information about the victim's
18death, legal disability, or disappearance and may order the
19disclosure of information the court determines is necessary
20for:
21        (1) an official law enforcement investigation or
22    criminal proceeding regarding the cause of that victim's
23    death, legal disability, or disappearance; or
24        (2) a guardianship or custody proceeding involving the
25    victim's minor child or children.
26    (f) Any rape crisis counselor who knowingly discloses any

 

 

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1confidential communication in violation of this Act commits a
2Class C misdemeanor.
3(Source: P.A. 96-1010, eff. 1-1-11; 96-1551, eff. 7-1-11;
497-1150, eff. 1-25-13.)
 
5    Section 10. The Illinois Domestic Violence Act of 1986 is
6amended by changing Section 227 as follows:
 
7    (750 ILCS 60/227)  (from Ch. 40, par. 2312-27)
8    Sec. 227. Privileged communications between domestic
9violence counselors and victims.
10    (a) As used in this Section:
11        (1) "Domestic violence program" means any unit of local
12    government, organization, or association whose major
13    purpose is to provide one or more of the following:
14    information, crisis intervention, emergency shelter,
15    referral, counseling, advocacy, or emotional support to
16    victims of domestic violence.
17        (2) "Domestic violence advocate or counselor" means
18    any person (A) who has undergone a minimum of forty hours
19    of training in domestic violence advocacy, crisis
20    intervention, and related areas, and (B) who provides
21    services to victims through a domestic violence program
22    either on an employed or volunteer basis.
23        (3) "Confidential communication" means any
24    communication between an alleged victim of domestic

 

 

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1    violence and a domestic violence advocate or counselor in
2    the course of providing information, counseling, or
3    advocacy. The term includes all records kept by the
4    advocate or counselor or by the domestic violence program
5    in the course of providing services to an alleged victim
6    concerning the alleged victim and the services provided.
7    The confidential nature of the communication is not waived
8    by the presence at the time of the communication of any
9    additional persons, including but not limited to an
10    interpreter, to further express the interests of the
11    domestic violence victim or by the advocate's or
12    counselor's disclosure to such an additional person with
13    the consent of the victim when reasonably necessary to
14    accomplish the purpose for which the advocate or counselor
15    is consulted.
16        (4) "Domestic violence victim" means any person who
17    consults a domestic violence counselor for the purpose of
18    securing advice, counseling or assistance related to one or
19    more alleged incidents of domestic violence.
20        (5) "Domestic violence" means abuse as defined in the
21    Illinois Domestic Violence Act.
22    (b) No domestic violence advocate or counselor shall
23disclose any confidential communication or be examined as a
24witness in any civil or criminal case or proceeding or in any
25legislative or administrative proceeding without the written
26consent of the domestic violence victim except (1) in

 

 

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1accordance with the provisions of the Abused and Neglected
2Child Reporting Act or (2) in cases where failure to disclose
3is likely to result in an imminent risk of serious bodily harm
4or death of the victim or another person.
5    (c) A domestic violence advocate or counselor who knowingly
6discloses any confidential communication in violation of this
7Act commits a Class A misdemeanor.
8    (d) When a domestic violence victim is deceased or has been
9adjudged incompetent by a court of competent jurisdiction, the
10guardian of the domestic violence victim or the executor or
11administrator of the estate of the domestic violence victim may
12waive the privilege established by this Section, except where
13the guardian, executor or administrator of the estate has been
14charged with a violent crime against the domestic violence
15victim or has had an Order of Protection entered against him or
16her at the request of or on behalf of the domestic violence
17victim or otherwise has an interest adverse to that of the
18domestic violence victim with respect to the waiver of the
19privilege. In that case, the court shall appoint an attorney
20for the estate of the domestic violence victim.
21    (d-5) If a victim is deceased, has been adjudged by a court
22to be a person under legal disability, or has been reported
23missing for more than 6 months, a judge may inspect in camera
24the records of a domestic violence program to determine whether
25those records contain relevant information about the victim's
26death, legal disability, or disappearance and may order the

 

 

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1disclosure of information the court determines is necessary
2for:
3        (1) an official law enforcement investigation or
4    criminal proceeding regarding the cause of that victim's
5    death, legal disability, or disappearance; or
6        (2) a guardianship or custody proceeding involving the
7    victim's minor child or children.
8    (e) A minor may knowingly waive the privilege established
9by this Section. Where a minor is, in the opinion of the court,
10incapable of knowingly waiving the privilege, the parent or
11guardian of the minor may waive the privilege on behalf of the
12minor, except where such parent or guardian has been charged
13with a violent crime against the minor or has had an Order of
14Protection entered against him or her on request of or on
15behalf of the minor or otherwise has any interest adverse to
16that of the minor with respect to the waiver of the privilege.
17In that case, the court shall appoint an attorney for the minor
18child who shall be compensated in accordance with Section 506
19of the Illinois Marriage and Dissolution of Marriage Act.
20    (f) Nothing in this Section shall be construed to limit in
21any way any privilege that might otherwise exist under statute
22or common law.
23    (g) The assertion of any privilege under this Section shall
24not result in an inference unfavorable to the State's cause or
25to the cause of the domestic violence victim.
26(Source: P.A. 87-1186.)