Bill Text: CA AB1735 | 2019-2020 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Evidence: privileges: human trafficking caseworker-victim privilege.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2019-08-30 - Chaptered by Secretary of State - Chapter 197, Statutes of 2019. [AB1735 Detail]

Download: California-2019-AB1735-Introduced.html

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CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 1735

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Introduced by Assembly Member Bauer-Kahan

February 22, 2019

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An act to amend Sections 1038, 1038.1 and 1038.2 of the Evidence Code, relating to evidentiary privilege.

LEGISLATIVE COUNSEL'S DIGEST

AB 1735, as introduced, Bauer-Kahan. Evidence: privileges: human trafficking caseworker-victim privilege.

Existing law establishes the crime of trafficking of a person for forced labor or services or for effecting or maintaining other specified felonies, and the crime of trafficking of a minor for those purposes. Existing law establishes procedures governing the admissibility of evidence in civil and criminal actions in this state. Existing law recognizes various evidentiary privileges, including a victim‑caseworker privilege, under which a human trafficking victim may refuse to disclose, or may prevent another’s disclosure of, a confidential communication made to a human trafficking caseworker, as defined. Existing law also sets forth circumstances under which a court may compel the disclosure of information otherwise protected by this privilege, and defines various terms for these purposes.

This bill would allow a human trafficking victim’s current caseworker to claim the privilege, even if that caseworker was not the victim’s caseworker at the time the confidential communication was made, thereby expanding the scope of the privilege. This bill would adjust the definitions of “holder of the privilege” and “human trafficking caseworker” for these purposes, including by expanding the list of topics about which human trafficking caseworkers shall be trained.

The California Constitution requires that a statute that would exclude relevant evidence in any criminal proceeding be enacted by a 2/3 vote of each house of the Legislature.

Because this bill would exclude certain communications between a victim of human trafficking and a human trafficking caseworker in criminal proceedings, the bill would require a 2/3 vote.

Digest Key

Vote: 2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1038 of the Evidence Code is amended to read:

1038.

 (a) A trafficking victim, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication communication, whether made orally, in writing, or otherwise conveyed, between the victim and a human trafficking caseworker if the privilege is claimed by any of the following persons:

(1) The holder of the privilege.

(2) A person who is authorized to claim the privilege by the holder of the privilege.

(3) The person who was the human trafficking caseworker at the time of the confidential communication. communication or is presently the human trafficking caseworker for the victim. However, that person may not claim the privilege if there is no holder of the privilege in existence or if he or she the person is otherwise instructed by the court or by a another person authorized to permit disclosure. The

(b) The human trafficking caseworker who received or made a communication subject to the privilege granted by this article shall claim the privilege whenever he or she the caseworker is present when the communication is sought to be disclosed and he or she the caseworker is authorized to claim the privilege under this section.

(b)

(c) A human trafficking caseworker shall inform a trafficking victim of any applicable limitations on confidentiality of communications between the victim and the caseworker. This information may be given orally.

SEC. 2.

 Section 1038.1 of the Evidence Code is amended to read:

1038.1.

 (a) The court may compel disclosure of information received by a human trafficking caseworker that constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim and that is the subject of a criminal proceeding, if the court determines that the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services. The court may compel disclosure if the victim is either dead or not the complaining witness in a criminal action against the perpetrator.

(b) When a court rules on a claim of privilege under this article, it may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and those other persons that the person authorized to claim the privilege consents to have present.

(c) If the judge determines that the information is privileged and shall not be disclosed, neither he nor she nor any other person may no person shall disclose, without the consent of a person authorized to permit disclosure, any information disclosed in the course of the proceedings in chambers. If the court determines that information shall be disclosed, the court shall so order and inform the defendant in the criminal action. If the court finds there is a reasonable likelihood that any information is subject to disclosure pursuant to the balancing test provided in this section, the procedure specified in paragraphs (1), (2), and (3) of Section 1035.4 shall be followed.

SEC. 3.

 Section 1038.2 of the Evidence Code is amended to read:

1038.2.

 (a) As used in this article, “victim” means any person who is a “trafficking victim” as defined in Section 236.1 of the Penal Code. the following terms have the following meanings:

(a) “Confidential communication” means information transmitted between the victim and the human trafficking caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking caseworker is consulted. ”Confidential communication” includes all information regarding the facts and circumstances involving all incidences of human trafficking, whether that information is exchanged in orally, in writing, or otherwise.

(b) “Holder of the privilege” means:

(1) The victim if the victim has no guardian or conservator.

(2) A guardian or conservator of the victim if the victim has a guardian or conservator.

(3) The personal representative of the victim if the victim is dead.

(b)As used in this article, “human trafficking

(c) “Human trafficking caseworker” means any of the following: a person employed by a human trafficking victim service organization, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who meets the requirements of paragraph (1) or (2) and who also meets the requirements of paragraph (3), if applicable:

(1)A person who is employed by any organization providing the programs specified in Section 18294 of the Welfare and Institutions Code, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who has received specialized training in the counseling of human trafficking victims, and who meets one of the following requirements:

(A)

(1) Has an advanced degree or license, such as a master’s degree in counseling counseling, social work, or a related field; or has at least one year of counseling experience, at least six months of which is in the counseling of human trafficking victims. experience in a caseworker role working directly with victims of human trafficking.

(B)

(2) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a counselor under subparagraph (A), or is a psychotherapist, as defined in Section 1010. (1). The training, supervised by a person qualified under subparagraph (A), (1), shall include, but need not be limited to, the following areas: history

(A) History of human trafficking, civil trafficking.

(B) Civil and criminal law as it relates to human trafficking, societal attitudes toward human trafficking, peer relating to human trafficking.

(C) Systems of oppression.

(D)  counseling techniques, housing, public assistance, and other financial resources available to meet the financial needs of human trafficking victims, and referral services available to human trafficking victims. A portion of this training must include an explanation of privileged communication.Peer counseling techniques.

(2)A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting human trafficking victims, and who meets one of the following requirements:

(A)Is a psychotherapist as defined in Section 1010, has a master’s degree in counseling or a related field, or has one year of counseling experience, at least six months of which is in rape assault counseling.

(B)Has the minimum training for human trafficking counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under subparagraph (A). The training, supervised by a person qualified under subparagraph (A), shall include, but not be limited to, law, victimology, counseling techniques, client and system advocacy, and referral services. A portion of this training must include an explanation of privileged communication.

(c)As used in this article, “confidential communication” means information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted. It includes all information regarding the facts and circumstances involving all incidences of human trafficking.

(d)As used in this article, “holder of the privilege” means the victim when he or she has no guardian or conservator, or a guardian or conservator of the victim when the victim has a guardian or conservator.

(E) Resources available to victims of human trafficking.

(F) Crisis intervention and counseling techniques.

(G) Role playing.

(H) Intersections of human trafficking and other crimes.

(I) Client and system advocacy.

(J) Referral services.

(K) Connecting to local, regional, and national human trafficking coalitions.

(L) Explaining privileged communications.

(3) If the caseworker has been employed by a human trafficking service organization for a period of less than six months, that caseworker is supervised by another human trafficking caseworker who has at least one year of experience working with human trafficking victims.

(d) “Human trafficking victim service organization” means a nongovernmental organization or entity that provides shelter, program, or other services described in Sections 13835.2, 13835.4, and 13835.5 of the Penal Code, to victims of human trafficking and their children.

(e) “Victim” means any person who is a “trafficking victim” as defined in Section 236.1 of the Penal Code.