VICTIM RIGHTS AND ADVOCACY

1. VICTIM RIGHTS AND ADVOCACY Module 1 Kentucky Victim Assistance Academy DRAFT KVAA

2. Learning Objectives 1.1:Victim Rights • Explain the History of the Victims Rights Movement • Identify the rights of victims under Kentucky Law • Identify alterative ways for victims to seek their rights DRAFT KVAA

3. History of Victim Rights and Services DRAFT KVAA

4. Victim Rights in Kentucky 1. Crime Victim Bill of Rights (KRS 421.500 – 421.575) As the result of the commission, there are multiple classifications of crime. DRAFT KVAA

5. Who is the Victim? Applies to: • All felony and misdemeanor proceedings in a district or circuit court and • To individuals who have suffered direct or threatened physical, financial or emotional harm • If “victim” is a minor or legal incapacitated, it includes: a parent, guardian, custodian or court appointed special advocate is designated “victim”. • If “victim” is deceased: the spouse, an adult child, a parent, a sibling, or a grandparent is designated “victim”. DRAFT KVAA

6. Law Enforcement Responsibilities • Initial contact: • Provide protective, emergency, and social and medical services • As soon as possible: • Provide availability of crime victims compensation, community based treatment programs, criminal process/victim participation, arrest of accused, notification regarding release, info on protection from intimidation • Promptly return property unless there is a compelling need and assist in informing employers of the need for absence from work DRAFT KVAA

7. Prosecutor Responsibilities • Protective, emergency, social and medical services • Crime victims compensation • Restitution • Obtaining the assistance of a victim advocate • Community-based treatment programs • How to register to receive notice of release • Protection from intimidation, harassment or retaliation • Victim, Witness, Family Protection Program Insure info is received on: DRAFT KVAA

8. Prosecutor Responsibilities Cont’d • If provided with contact information, it is the Prosecutor’s responsibility to provide notification of multiple items. DRAFT KVAA

9. Advocate Responsibilities • Perform duties necessary for compliance with crime victims’ bill of rights • If requested by victim, in court proceedings, Advocate may accompany during the proceedings for support. • In court proceedings, Advocate must be allowed to confer orally and in writing with victim in a reasonable manner. DRAFT KVAA

10. OAG Responsibilities • Deliver notification to victim of defendant’s initial appeal, status of the case, and decision of case (if Commonwealth is represented by the OAG) • If requested, provide technical assistance to law enforcement and prosecutors in establishing a victim assistance program DRAFT KVAA

11. Enforceability vs. Non - Enforceability DRAFT KVAA

12. Additional Rights of Child Victims • KRS 26A.140 Special Needs of Children In Courtroom • KRS 421.500 Speedy Trial Where Child Victim is Involved. DRAFT KVAA

13. Victim Advocate Rights in Court 4. KRS 421.575 Right Victim Advocate in Court • Upon request of victim, Victim advocate shall be allowed to accompany victim during proceedings to: • Provide moral and emotional support • Confer with victim orally and in writing DRAFT KVAA

14. Additional Rights 5. KRS 532.055 Sentencing Phase Evidence 6. KRS 533.030(3) Restitution 7. Parole 8. Victim Notification 9. Criminal Laws 10. Crime Victims Compensation DRAFT KVAA

15. Alternative Remedies • Representation by private attorney during criminal case • Civil Legal Case DRAFT KVAA

16. Trends for Expansion • Constitutional amendments • Victim rights compliance legislation DRAFT KVAA

17. DRAFT KVAA

18. Learning Objectives 1.2: Victim Advocates • Explain the role of the victim advocate • Explain the difference between system based and community/non-profit based advocates DRAFT KVAA

19. Advocacy • Speaking and acting for change or justice on behalf of oneself or another person or cause. • Based on the concept of empowerment. DRAFT KVAA

20. What is a victim advocate? • KRS 421.570 Victim Advocate • An individual at least 18 years of age and of good moral character • Employed by or serves as a volunteer for a public or private organization, agency or official • To counsel and assist crime victims • Shall not engage in the practice of law DRAFT KVAA

21. Where can I find a victim advocate? • Government/Criminal Justice System • Prosecutor’s offices • Law enforcement agencies • Community Based • Non-profits such as KASAP, KDVA, etc. • Volunteers – through organizations such as KVCV. DRAFT KVAA

22. Activity DRAFT KVAA

23. What were some similarities between Advocates that your group came up with? • What were some differences between Advocates that your group came up with • What were some Benefits and Challenges of Advocates working together that your group came up with? DRAFT KVAA

24. DRAFT KVAA

25. Learning Objectives 1.3: Confidentiality • Identify the laws related to confidentiality and privacy protections between an advocate and client • Develop an awareness of HIPPA compliance requirements DRAFT KVAA

26. Confidentiality? • The practice and law of treating information as private. • Protection of individual’s rights • Right to privacy • Protected by the US Constitution DRAFT KVAA

27. Many laws protect privacy • Counselor-client Privilege (KRE 506) • HIPAA • Professional Ethics • US Constitution • VAWA • Administrative Laws for RCCs, DVPs, CACs • Abuse Reporting Requirements DRAFT KVAA

28. How do laws protect privacy? • Shield against requests for information. • None will protect in all situations, but are beneficial and effective when working together. DRAFT KVAA

29. Why are Confidentiality & HIPAA important? Best interest for clients Basic respect for clients Agency/Program policy compliance Protect yourself DRAFT KVAA

30. What information is “confidential”? • Identity • Identifying information • Location • Mental & physical health history • Anecdotal information • Anything & everything learned from a victim DRAFT KVAA

31. Breaches of Confidentiality • Voluntary • Involuntary • Unjustified • Justified DRAFT KVAA

32. Justified Breaches: Mandatory Reporting • Abuse or neglect of: • Child (person under 18) • Vulnerable adult (18 or older) • Who is unable to manage due to mental or physical dysfunction • Duty to warn of threat of violent behavior DRAFT KVAA

33. Privilege • A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling. DRAFT KVAA

34. SARTs & Other Collaborations • Communications with others present are not “confidential,” so no privilege attaches. • Inform victim that may speak with counselor separately. • Advocates cannot divulge confidences without breaking the law BUT prosecutor exception. DRAFT KVAA

35. Testimonial Privileges • Protect Communications within Particular Relationships • Established in the Rules of Evidence • Exception to the general rule that individuals have a duty to testify in legal proceedings DRAFT KVAA

36. Privileges recognized for specific relationships: • Counselor-client • Psychotherapist-client • Attorney-client • Religious privilege • Spousal privilege DRAFT KVAA

37. Privilege can be destroyed! • Waiver by Voluntary Disclosures • KRE 509 • Waiver does not apply if disclosure itself was privileged DRAFT KVAA

38. Qualified Privilege Procedures • Judge may conduct in camera (in chambers) review to determine whether privilege applies DRAFT KVAA

39. Responding to Subpoenas • Contact the client • Review the record • Discuss PROs and CONs • “Authorization for Release” form • Contact attorney regarding other options. DRAFT KVAA

40. Health Insurance Portability & Accountability Act of 1996 DRAFT KVAA

41. What is HIPAA? • HI = Health Information • P = Portability • A = Accountability DRAFT KVAA

42. Protected Health Information • Any information that would identify the client is PHI • Name • Initials • Social security number • Date of birth • Address • Other descriptors DRAFT KVAA

43. HIPAA Privacy Rule:The BIG Picture • People have a right to privacy • Purpose is to protect privacy, not interfere with service delivery. • Compliance standard is “due diligence.” • Professionals must be accountable for how they use and disclose information. • Disclose “minimum necessary” for the purpose. DRAFT KVAA

44. HIPAA’s Basic Rule Do not disclose information without authorization, except for treatment, payment and health care operations, and as otherwise required or permitted by law. See 45 CFR § 164.502 DRAFT KVAA

45. Guiding Principal for DisclosuresMinimum Necessary Information Standard45 CFR § 164.514(d) Amount of information disclosed or requested must be restricted to the minimum necessary to accomplish the intended purpose Exceptions: for “treatment” purposes when disclosure authorized by client DRAFT KVAA

46. Valuable new rights and protections • Right to notice of privacy practices. • Right to accounting of disclosures. • Right to request special protection. • Requirements for release of records pursuant to outside requests. DRAFT KVAA

47. Special Interest to Victims • Provisions specific to victims • General Provisions DRAFT KVAA

48. There are many exceptions for Law Enforcement! DRAFT KVAA

49. Kentucky does NOT require reporting of all crimes or all rapes. • It is necessary to get permission before reporting in most rapes. DRAFT KVAA

50. Special Issues for SARTs • Contacting Rape Crisis Center Advocates • Part of treatment • Required by law • Contacting Law Enforcement Authorities • Ask for the victim’s authorization to do so • Report without authorization only where child abuse or abuse of vulnerable adult (inc. spouse) DRAFT KVAA