Section 505. Domestic Violence Victims’ Counselor Privilege

(a) Definitions. The definitions that follow apply to this section unless the context clearly requires otherwise.

(1) Abuse. “Abuse” means causing or attempting to cause physical harm; placing another in fear of imminent physical harm; or causing another to engage in sexual relations against his or her will by force, threat of force, or coercion.

(2) Confidential Communication. A “confidential communication” is information transmitted in confidence by and between a victim and a domestic violence victims’ counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term “information” includes, but is not limited to, reports, records, working papers, or memoranda.

(3) Domestic Violence Victims’ Counselor. A “domestic violence victims’ counselor” is a person who is employed or volunteers in a domestic violence victim’s program; who has undergone a minimum of twenty-five hours of training; who reports to and is under the direct control and supervision of a direct service supervisor of a domestic violence victims’ program; and whose primary purpose is the rendering of advice, counseling, or assistance to victims of abuse.

(4) Domestic Violence Victims’ Program. A “domestic violence victims’ program” is any refuge, shelter, office, safe home, institution or center established for the purpose of offering assistance to victims of abuse through crisis intervention, medical, legal, or support counseling.

(5) Victim. A “victim” is a person who has suffered abuse and who consults a domestic violence victims’ counselor for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by such abuse.

(b) Privilege. A domestic violence victims’ counselor shall not disclose confidential communications between the counselor and the victim of domestic violence without the prior written consent of the victim. Such confidential communication shall not be subject to discovery in any civil, legislative, or administrative proceeding without the prior written consent of the victim to whom such confidential communication relates, except as provided in Subsection (c).

(c) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

NOTE

This section is derived from G. L. c. 233, § 20K; Commonwealth v. Dwyer, 448 Mass. 122, 143 n.25, 859 N.E.2d 400, 416 n.25 (2006) (characterizing records prepared by domestic violence victims’ counselor as privileged); and Commonwealth v. Tripolone, 425 Mass. 487, 489, 681 N.E.2d 1216, 1218 (1997) (same). The specific provision in G. L. c. 233, § 20K, for in camera judicial review prior to an order allowing any discovery of material covered by the domestic violence victims’ counselor privilege is different from the procedure recently established by the Supreme Judicial Court in Commonwealth v. Dwyer, 448 Mass. at 145–146, 859 N.E.2d at 418–419. See Introductory Note to Article V, Privileges and Disqualifications.