Advocacy Confidential – June 2024

By Carol Schrader
Senior Attorney, National Training and Consultation, Victim Rights Law Center

Dear Fierce Survivors, Advocates, and Allies,

Welcome back to my blog series – Advocacy Confidential. Where we sip tea¹ and muse together about the role of confidentiality in our violence abolition movement.

As you may recall, in my most recent and inaugural post,² I made a compelling case for the role of confidentiality with survivor-centered advocacy,³ and how VAWA confidentiality is an important tool for protecting confidentiality. In response to that post, my esteemed colleague, Curious Confidentiality Questioner, reached out with some follow-up questions.

In our discussion of these questions, one thing led to another, and we concluded that protecting confidentiality is like a rare diamond:⁴ multi-faceted and commanding our attention. VAWA confidentiality only gets us so far. What about requirements in confidentiality and privilege statutes? Licensure requirements for mental health and other professionals? Policies in school, prisons, and other institutions? Title IX and Clery Act disclosure requirements? Mandatory reporting and duties to protect? I hope to go into detail with some of these aspects of confidentiality in future posts. But allow me to offer a questions about the aspects of confidentiality that each of us need to consider in our work with survivors.

A preliminary point: By “confidentiality,” I mean a legally established professional requirement to protect information not intended for further disclosure.⁵ This information may be acquired through conversations, documents, recordings, etc.

We, Fierce Reader, must consider and adhere to our⁶ answers to these questions:

1. Why am I protecting survivors’ confidentiality?
2. What are the statutory requirements for my profession (e.g., certified advocate, licensed social worker, attorney), to protect the confidentiality of the people I serve? The answer would include victim-advocate confidentiality and attorney-client privilege, for example.⁷
3. What are the professional licensure and ethical rules that govern my responsibility to protect confidentiality?
4. What are my employer’s policies on protecting confidentiality?
5. What are funding requirements that affect confidentiality? (This is where VAWA, et al., come into play. Note that VAWA confidentiality is established in federal law.)
6. What competing legal requirements, if any, may confound my commitment to protect the confidentiality of survivors (e.g., mandatory reporting laws, duties to protect, Title IX disclosure requirements, subpoena or warrant response)?
7. How will I clearly explain to people I serve my confidentiality requirements?
8. How will I clearly explain to people I serve that they can always give me informed consent to share their information? How do I explain related points such as waiver of privilege?
9. How will I clearly explain these requirements to my colleagues and the people to whom I make referrals?

If you need help answering these questions, please reach out to VRLC’s TA team.

What do you think? Would you add other questions to this list? What other confidentiality issues would you like us to consider together? Please join the conversation. And when you write in or reach out, feel free to use a pseudonym that’s powerful or fun or whatever you want it to be.

Yours,

Carol Confidential

¹ Many of you already know that by “tea” I mean the beverage of your choice.

² If you missed this post, you may find it here.

³ I use “advocacy” broadly and include work anyone does to help a survivor meet needs related to their experience of harm.

⁴ I contemplate an ethically sourced or harvested diamond with this analogy.

⁵ This definition is distinguished, but not entirely divorced, from the VAWA confidentiality prohibition from disclosing, revealing, or releasing any “personally identifying information or individual information collected in connection with services….” 34 U.S.C. § 12291(b)(2)(B).

⁶ The answers to these questions may be similar among advocates, but each of us must answer them personally based on where we work, our profession, and what we do.

⁷ VRLC has some jurisdiction-specific resources that can hep you learn what these requirements are for where you work. You can access them at our Resource Library.

Carol Confidential (nee Schrader) (she/her) is a Senior Attorney on Victim Rights Law Center’s national training and consultation team. She helps attorneys and other victim service providers across the country provide legal advocacy for and protect the confidentiality of survivors of sexual assault, dating and domestic violence, and stalking. She lives in the Pacific Northwest. She enjoys her hiking and book groups, culinary adventures, yoga, and quiet evenings at home.