SEXUAL MISCONDUCT AT INSTITUTIONS OF HIGHER EDUCATION
Confidential Resource Advisors
188-H:8 Privilege for Confidential Resource Advisors.
I. In this section:
" means information transmitted between a victim, as defined in paragraph (b), of an alleged sexual assault, alleged domestic abuse, alleged sexual harassment, or alleged stalking, and a confidential resource advisor in the course of that relationship and in confidence by means which, so far as the victim is aware, does not disclose the information to a third person. The presence of an interpreter for the hearing impaired, a foreign language interpreter, or any other interpreter necessary for that communication to take place shall not affect the confidentiality of the communication nor shall it be deemed a waiver of the privilege. The term includes all information received by the confidential resource advisor in the course of that relationship.
" means any person alleging sexual misconduct, as defined by the institutions' policies and procedures, who consults a confidential resource advisor for the purpose of securing support, counseling or assistance concerning a mental, physical, emotional, legal, housing, medical, or financial problem caused by an alleged act of sexual misconduct, or an alleged attempted sexual misconduct.
II. (a) A victim has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to a confidential resource advisor, including any record made in the course of support, counseling, or assistance of the victim. Any confidential communication or record may be disclosed only with the prior written consent of the victim. This privilege terminates upon the death of the victim. The privilege and confidentiality under this subparagraph shall extend to:
(1) A third person present to assist communication with the victim.
(2) A third person present to assist a victim who is physically challenged.
(3) Co-participants in support group counseling of the victim.
(b) Persons prevented from disclosing a confidential communication or record pursuant to subparagraph (a) shall be exempt from the provisions of RSA 631:6.
III. The privilege may be claimed or waived in all civil, administrative, and criminal legal proceedings, including discovery proceedings, by the following persons:
(a) The victim or an attorney on the victim's behalf.
(b) The guardian of the victim, if the victim has been found incompetent by a court of competent jurisdiction.
(c) A minor victim who is emancipated, married, or over the age of 15, unless, in the opinion of the court, the minor is incapable of knowingly waiving the privilege. A guardian ad litem shall be appointed in all cases in which there is a potential conflict of interest between a victim under the age of 18 and their parent or guardian.
IV. Waiver as to a specific portion of communication between the victim and the confidential resource advisor shall not constitute a waiver of the privilege as to other portions of the confidential communication between victim and confidential resource advisor, relating to the alleged crime.
V. In criminal proceedings when a defendant seeks information privileged under this chapter in discovery or at trial, the procedure below shall be followed:
(a) A written pretrial motion shall be made by the defendant to the court stating that the defendant seeks discovery of records of a confidential resource advisor or testimony of a confidential resource advisor. The written motion shall be accompanied by an affidavit setting forth specific grounds as to why discovery is requested and showing that there is a substantial likelihood that favorable and admissible information would be obtained through discovery or testimony. No discovery or hearing shall occur pursuant to the information sought to be disclosed for at least 3 business days after the filing of a motion for disclosure.
(b) The only information subject to discovery from the records of a confidential resource advisor or which may be elicited during the testimony of a confidential resource advisor are those statements of the victim which relate to the alleged crime being prosecuted in the instant trial.
(c) Prior to admission of information at deposition, trial, or other legal proceeding, when a claim of privilege has been asserted and whether or not the information was obtained through discovery, the burden of proof shall be upon the defendant to establish by a preponderance of the evidence that:
(1) The probative value of the information, in the context of the particular case, outweighs its prejudicial effect on the victim's emotional or physical recovery, privacy, or relationship with the confidential resource advisor.
(2) That the information sought is unavailable from any other source.
(3) That there is a substantial probability that the failure to disclose that information will interfere with the defendant's right to confront the witnesses against him or her and the defendant's right to a fair trial.
(d) The trial court shall review each motion for disclosure of information on a case by case basis and determine on the totality of the circumstances that the information sought is or is not subject to the privilege established in paragraph II. In finding that the privilege shall not apply in a particular case, the trial court shall make written findings as to its reasons therefor.
(e) The records and testimony of a confidential resource advisor shall be disclosed solely to the trial judge to determine, as a matter of law, whether the information contained in the records or testimony is admissible under this chapter.
(f) That portion of any record and testimony of a confidential resource advisor which is not disclosed to the defendant shall be preserved by the court under seal for appeal. For the purpose of preservation, a copy of the record shall be retained with the original released to the confidential resource advisor. Costs of duplication shall be borne by the defendant.
(g) If, after disclosure of privileged information, the court upholds the privilege claim, the court shall impose a protective order against revealing any of the information without the consent of the person authorized to permit disclosure.
VI. The privilege established by this chapter shall not apply when the confidential resource advisor has knowledge that the victim has given perjured testimony and when the defendant has made an offer of proof that there is probable cause to believe that perjury has been committed.
VII. Failure of any person to testify as a witness pursuant to the provisions of this chapter shall not give rise to an inference unfavorable to the prosecution or the defense.
VIII. The victim shall have a right to interlocutory appeal to the supreme court from any decision by a court to require the disclosure of records or testimony of a confidential resource advisor.
IX. The confidential resource advisor shall have the same reporting duties under RSA 169-C:29 as other professionals, providing that this duty shall not apply where a minor is seeking relief pursuant to RSA 173-B:3 for abuse by a spouse or former spouse of the minor, or by an intimate partner who is not related to the minor by consanguinity or affinity. As used in this section, "abuse" and "intimate partners" shall be as defined in RSA 173-B:1.
Source. 2020, 24:18, eff. Jan. 16, 2021.