(a) Definitions. The definitions that follow apply to this section unless the context clearly requires otherwise.
(1) Rape Crisis Center. A “rape crisis center” is any office, institution, or center offering assistance to victims of sexual assault and the families of such victims through crisis intervention, medical, and legal counseling.
(2) Sexual Assault Counselor. A “sexual assault counselor” is a person who (A) is employed by or is a volunteer in a rape crisis center; (B) has undergone thirty-five hours of training; (C) reports to and is under the direct control and supervision of a licensed social worker, nurse, psychiatrist, psychologist, or psychotherapist; and (D) has the primary purpose of rendering advice, counseling, or assistance to victims of sexual assault.
(3) Victim. A “victim” is a person who has suffered a sexual assault and who consults a sexual assault counselor for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by such sexual assault.
(4) Confidential Communication. A “confidential communication” is information transmitted in confidence by and between a victim of sexual assault and a sexual assault 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 includes all information received by the sexual assault counselor which arises out of and in the course of such counseling and assisting, including, but not limited to, reports, records, working papers, or memoranda.
(b) Privilege. A confidential communication as defined in Subsection (a)(4) shall not be disclosed by a sexual assault counselor, is not subject to discovery, and is inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom the report, record, working paper, or memorandum relates. Nothing in this section shall be construed to limit the defendant’s right of cross-examination of such counselor in a civil or criminal proceeding if such counselor testifies with such written consent.
(c) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.
Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20J.
Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20J. See Commonwealth v. Dwyer, 448 Mass. 122, 143 n.25, 859 N.E.2d 400, 416 n.25 (2006) (characterizing records prepared by sexual assault victims’ counselor as privileged).
This privilege protects only confidential communications between the victim and the counselor and does not extend to the date, time, or fact of the communication. Commonwealth v. Neumyer, 432 Mass. 23, 29, 731 N.E.2d 1053, 1058 (2000). The victim’s testimony to the content of a privileged communication under this section does not constitute a waiver of the privilege unless the testimony is given with knowledge of the privilege and an intent to waive it. Id. at 35–36, 731 N.E.2d at 1062. See Section 523(b), Waiver of Privilege: Conduct Constituting Waiver.
Subsection (c). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006) (establishing protocol in criminal cases governing access to and use of material covered by privilege). See Introductory Note to Article V, Privileges and Disqualifications.