Bill Text: IL SB3308 | 2013-2014 | 98th General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2015-01-13 - Session Sine Die [SB3308 Detail]

Download: Illinois-2013-SB3308-Introduced.html

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

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

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

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privilege established by this Section, unless the executor
or administrator has an interest adverse to the victim.
(4) A minor victim 12 years of age or older may
knowingly waive the privilege established in this Section.
When a minor is, in the opinion of the Court, incapable of
knowingly waiving the privilege, the parent or guardian of
the minor may waive the privilege on behalf of the minor,
unless the parent or guardian has been charged with a
violent crime against the victim or otherwise has any
interest adverse to that of the minor with respect to the
waiver of the privilege.
(5) An adult victim who has a guardian of his or her
person may knowingly waive the privilege established in
this Section. When the victim is, in the opinion of the
court, incapable of knowingly waiving the privilege, the
guardian of the adult victim may waive the privilege on
behalf of the victim, unless the guardian has been charged
with a violent crime against the victim or otherwise has
any interest adverse to the victim with respect to the
privilege.
(d) Confidentiality. Except as provided in this Act, no
rape crisis counselor shall disclose any confidential
communication or be examined as a witness in any civil or
criminal proceeding as to any confidential communication
without the written consent of the victim or a representative
of the victim as provided in subparagraph (c).

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(e) A rape crisis counselor may disclose a confidential
communication without the consent of the victim if failure to
disclose is likely to result in a clear, imminent risk of
serious physical injury or death of the victim or another
person. Any rape crisis counselor or rape crisis organization
participating in good faith in the disclosing of records and
communications under this Act shall have immunity from any
liability, civil, criminal, or otherwise that might result from
the action. In any proceeding, civil or criminal, arising out
of a disclosure under this Section, the good faith of any rape
crisis counselor or rape crisis organization who disclosed the
confidential communication shall be presumed.
(e-5) If a victim 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 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.
(f) Any rape crisis counselor who knowingly discloses any

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confidential communication in violation of this Act commits a
Class C misdemeanor.
(Source: P.A. 96-1010, eff. 1-1-11; 96-1551, eff. 7-1-11;
97-1150, eff. 1-25-13.)
Section 10. The Illinois Domestic Violence Act of 1986 is
amended by changing Section 227 as follows:
(750 ILCS 60/227) (from Ch. 40, par. 2312-27)
Sec. 227. Privileged communications between domestic
violence counselors and victims.
(a) As used in this Section:
(1) "Domestic violence program" means any unit of local
government, organization, or association whose major
purpose is to provide one or more of the following:
information, crisis intervention, emergency shelter,
referral, counseling, advocacy, or emotional support to
victims of domestic violence.
(2) "Domestic violence advocate or counselor" means
any person (A) who has undergone a minimum of forty hours
of training in domestic violence advocacy, crisis
intervention, and related areas, and (B) who provides
services to victims through a domestic violence program
either on an employed or volunteer basis.
(3) "Confidential communication" means any
communication between an alleged victim of domestic

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

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accordance with the provisions of the Abused and Neglected
Child Reporting Act or (2) in cases where failure to disclose
is likely to result in an imminent risk of serious bodily harm
or death of the victim or another person.
(c) A domestic violence advocate or counselor who knowingly
discloses any confidential communication in violation of this
Act commits a Class A misdemeanor.
(d) When a domestic violence victim is deceased or has been
adjudged incompetent by a court of competent jurisdiction, the
guardian of the domestic violence victim or the executor or
administrator of the estate of the domestic violence victim may
waive the privilege established by this Section, except where
the guardian, executor or administrator of the estate has been
charged with a violent crime against the domestic violence
victim or has had an Order of Protection entered against him or
her at the request of or on behalf of the domestic violence
victim or otherwise has an interest adverse to that of the
domestic violence victim with respect to the waiver of the
privilege. In that case, the court shall appoint an attorney
for the estate of the domestic violence victim.
(d-5) If a victim 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 domestic violence program to determine whether
those records contain relevant information about the victim's
death, legal disability, or disappearance and may order the

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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.
(e) A minor may knowingly waive the privilege established
by this Section. Where a minor is, in the opinion of the court,
incapable of knowingly waiving the privilege, the parent or
guardian of the minor may waive the privilege on behalf of the
minor, except where such parent or guardian has been charged
with a violent crime against the minor or has had an Order of
Protection entered against him or her on request of or on
behalf of the minor or otherwise has any interest adverse to
that of the minor with respect to the waiver of the privilege.
In that case, the court shall appoint an attorney for the minor
child who shall be compensated in accordance with Section 506
of the Illinois Marriage and Dissolution of Marriage Act.
(f) Nothing in this Section shall be construed to limit in
any way any privilege that might otherwise exist under statute
or common law.
(g) The assertion of any privilege under this Section shall
not result in an inference unfavorable to the State's cause or
to the cause of the domestic violence victim.
(Source: P.A. 87-1186.)