VICTIM RIGHTS AND ADVOCACY

Module 1Kentucky Victim Assistance Academy

1DRAFT KVAA

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

Learning Objectives 1.1:Learning Objectives 1.1:Victim RightsVictim Rights

2DRAFT KVAA

History of Victim Rights and History of Victim Rights and ServicesServices

3DRAFT KVAA

1. Crime Victim Bill of Rights (KRS 421.500 – 421.575)

As the result of the commission, there are multiple classifications of crime.

Victim Rights in KentuckyVictim Rights in Kentucky

4DRAFT KVAA

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”.

Who is the Victim?Who is the Victim?

5DRAFT KVAA

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

Law Enforcement Law Enforcement ResponsibilitiesResponsibilities

6DRAFT KVAA

Prosecutor ResponsibilitiesProsecutor Responsibilities

Insure info is received on:

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

7DRAFT KVAA

If provided with contact information, it is the Prosecutor’s responsibility to provide notification of multiple items.

Prosecutor Responsibilities Prosecutor Responsibilities Cont’dCont’d

8DRAFT KVAA

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.

Advocate ResponsibilitiesAdvocate Responsibilities

9DRAFT KVAA

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

OAG ResponsibilitiesOAG Responsibilities

10DRAFT KVAA

Enforceability vs. Non - Enforceability vs. Non - Enforceability Enforceability

11DRAFT KVAA

2. KRS 26A.140 Special Needs of Children In Courtroom

2. KRS 421.500 Speedy Trial Where Child Victim is Involved.

Additional Rights of Child Additional Rights of Child VictimsVictims

12DRAFT KVAA

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

Victim Advocate Rights in Victim Advocate Rights in CourtCourt

13DRAFT KVAA

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

Additional RightsAdditional Rights

14DRAFT KVAA

Representation by private attorney during criminal case

Civil Legal Case

Alternative RemediesAlternative Remedies

15DRAFT KVAA

Constitutional amendments

Victim rights compliance legislation

Trends for ExpansionTrends for Expansion

16DRAFT KVAA

17DRAFT KVAA

Explain the role of the victim advocate

Explain the difference between system based and community/non-profit based advocates

Learning Objectives 1.2:Learning Objectives 1.2: Victim Advocates Victim Advocates

18DRAFT KVAA

Speaking and acting for change or justice on behalf of oneself or another person or cause.

Based on the concept of empowerment.

AdvocacyAdvocacy

19DRAFT KVAA

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

What is a victim advocate?What is a victim advocate?

20DRAFT KVAA

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.

Where can I find a victim Where can I find a victim advocate?advocate?

21DRAFT KVAA

ActivityActivity

22DRAFT KVAA

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?

23DRAFT KVAA

24DRAFT KVAA

Identify the laws related to confidentiality and privacy protections between an advocate and client

Develop an awareness of HIPPA compliance requirements

Learning Objectives Learning Objectives 1.3:1.3: Confidentiality Confidentiality

25DRAFT KVAA

Confidentiality?Confidentiality?

The practice and law of treating information as private.

Protection of individual’s rights◦Right to privacy

Protected by the US Constitution

26DRAFT KVAA

Many laws protect privacyMany laws protect privacy

◦Counselor-client Privilege (KRE 506)

◦HIPAA◦Professional Ethics◦US Constitution◦VAWA◦Administrative Laws for RCCs,

DVPs, CACs◦Abuse Reporting Requirements

27DRAFT KVAA

How do laws How do laws protect protect privacy?privacy?

Shield against requests for information.

None will protect in all situations, but are beneficial and effective when working together.

28DRAFT KVAA

Why are Confidentiality & HIPAA Why are Confidentiality & HIPAA important?important?

Best interest for clients

Basic respect for clients

Agency/Program policy compliance

Protect yourself

29DRAFT KVAA

What information is What information is “confidential”?“confidential”?

Identity Identifying informationLocationMental & physical health historyAnecdotal informationAnything & everything learned from a victim

30DRAFT KVAA

Breaches of Breaches of ConfidentialityConfidentiality

VoluntaryInvoluntary

UnjustifiedJustified

31DRAFT KVAA

Justified Breaches: Mandatory Justified Breaches: Mandatory ReportingReportingAbuse 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

32DRAFT KVAA

PrivilegePrivilege

A client has a privilege torefuse to disclose and to prevent anyother person from disclosing confidential communications made forthe purpose of counseling.

33DRAFT KVAA

SARTs & Other SARTs & Other CollaborationsCollaborationsCommunications 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.

34DRAFT KVAA

Testimonial Testimonial PrivilegesPrivileges

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

35DRAFT KVAA

Privileges recognized for Privileges recognized for specific relationships:specific relationships:

Counselor-client

Psychotherapist-client

Attorney-client

Religious privilege

Spousal privilege

36DRAFT KVAA

Privilege can be Privilege can be destroyed!destroyed!

Waiver by Voluntary Disclosures

◦KRE 509

◦Waiver does not apply if disclosure itself was privileged

37DRAFT KVAA

Qualified Privilege Qualified Privilege ProceduresProcedures

Judge may conduct in camera (in chambers) review to determine whether privilege applies

38DRAFT KVAA

Responding to Responding to SubpoenasSubpoenasContact the clientReview the recordDiscuss PROs and CONs

“Authorization for Release” form

Contact attorney regarding other options.

39DRAFT KVAA

Health Health Insurance Insurance Portability & Portability & Accountability Accountability Act of 1996Act of 1996

40DRAFT KVAA

What is HIPAA?What is HIPAA?

HI = Health Information

P = Portability

A = Accountability

41DRAFT KVAA

Protected Health InformationProtected Health Information

Any information that would identify the client is PHI

◦ Name◦ Initials◦ Social security number◦ Date of birth◦ Address◦ Other descriptors

42DRAFT KVAA

HIPAA Privacy Rule:HIPAA Privacy Rule:The BIG PictureThe 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.

43DRAFT KVAA

HIPAA’s Basic RuleHIPAA’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

44DRAFT KVAA

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

45DRAFT KVAA

Valuable new rights Valuable new rights and protectionsand 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.

46DRAFT KVAA

Special Interest to VictimsSpecial Interest to Victims

Provisions specific to victims

General Provisions

47DRAFT KVAA

There are many exceptions for Law Enforcement!

48DRAFT KVAA

Kentucky does NOT require reporting of all crimes or all rapes.

It is necessary to get permission before reporting in most rapes.

49DRAFT KVAA

Special Issues for SARTsSpecial 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)

50DRAFT KVAA

What does it mean for me?What does it mean for me?

Be aware in all situations…

◦ Phones: messages, cell use◦ Faxing and email◦ Conversations◦ Community Interaction◦ Documentation care◦ Information Release

51DRAFT KVAA

You are a privacy expert!

HIPAA raises importance of privacy to new level.

Purpose is to protect privacy, not interfere with service delivery.

Victim service providers are not of primary concern to enforcement agencies.

52DRAFT KVAA

Identify the difference between advocating for a client and the unauthorized practice of law

Learning Objectives 1.4: Learning Objectives 1.4: Providing Effective Advocacy & Avoiding Providing Effective Advocacy & Avoiding

the Unauthorized Practice of Lawthe Unauthorized Practice of Law

53DRAFT KVAA

Why are we here?Why are we here?

“Each victim advocate shall complete training which shall include information concerning the difference between advocacy and practice of law…”

KRS 421.57054DRAFT KVAA

Also…Also…A victim advocate shall not engage in the practice of law as defined in KRS 524.130.

KRS 421.570

“Unauthorized practice of law” is a Class B misdemeanor

KRS 524.13055DRAFT KVAA

What does “Advocacy” What does “Advocacy” mean?mean?

“Championing the rights of individuals or communities through direct intervention or through empowerment”

- Social Work DictionaryActive support; especially the act of pleading or arguing for something

– Webster’s Online Dictionary

56DRAFT KVAA

Empowerment AdvocacyEmpowerment Advocacy Believe & validate Promote individual’s rights Respect confidentiality Promote safety Provide information Help individual understand “systems” Promote access to community resources Encourage self-determination

57DRAFT KVAA

What is the “Practice of What is the “Practice of Law”?Law”?Any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.

- Ky. Supreme Court Rule 3.020

58DRAFT KVAA

Practicing Law includesPracticing Law includes

Giving legal adviceSpeaking on behalf of a client in court

Preparing any form or document that is filed in a court or affects a case that may be filed in court

59DRAFT KVAA

Balancing the RealitiesBalancing the Realities

UPL laws protect individuals rights

Victims need advocates for many reasons!

60DRAFT KVAA

A Few Roles of AdvocatesA Few Roles of AdvocatesProvide victims with full access to courts & legal rights through education & Navigation

Educate attorneys about the trauma and victimization

Facilitate communicationsListener & Provider of Information & Resources

61DRAFT KVAA

An Advocate MAY NOT:An Advocate MAY NOT:

Provide any advice relating to a person’s rights or remedies

Predict outcome of a case or particular issue

Speak on behalf of individuals in court

Complete documents for client

62DRAFT KVAA

Common Tests for UPLCommon Tests for UPL

Application of Law to Facts

Affecting Legal RightsClient Reliance Test

63DRAFT KVAA

Victim Victim AdvocateAdvocate Role In Role In Court Proceedings Court Proceedings (KRS 421.575)(KRS 421.575)

64DRAFT KVAA

Person - Centered Person - Centered Legal AdvocacyLegal Advocacy

List 3 issues or settings for advocacy by you or your agency

Think beyond criminal law!65DRAFT KVAA

What is most important to the survivor?

Personal Safety Housing

Family Privacy

Work Credit

School Benefits

Health Care Immigration Status

Accountability Protecting Others

Opportunity to be heard

Changing systems66DRAFT KVAA

Examine the Examine the PossibilitiesPossibilities Learn to “issue spot”

◦ Ask survivors about their concerns◦ Ask what they want to see happen

Understand various laws & remedies◦ Sexual harassment & bullying◦ Housing protections & benefits protections◦ Civil law suits & formal complaint procedures◦ Campus disciplinary proceedings

67DRAFT KVAA

Make the ConnectionsMake the Connections Consider advocacy options

◦ Remember, the advocate ‘CAN DOs’

Connect with other resources◦ Commission on Human Rights◦ Protection & Advocacy (disability rights)◦ Legal Aid Agencies & Law School Clinics◦ Private Attorneys◦ Victims Rights Law Center

68DRAFT KVAA

Criminal Justice Criminal Justice Advocacy Advocacy

List 3 criminal justice advocacy tasks you or your agency can do

Think beyond going to court!

69DRAFT KVAA

Advocacy with Advocacy with Law Enforcement OfficialsLaw Enforcement Officials

• Ask about status of the case

• Provide info about issues of concern (alcohol, prior relationship, etc.)

• Provide reminders about victims rights, available evidence, follow-up photos, etc.

70DRAFT KVAA

Pre-trial Advocacy Pre-trial Advocacy Tasks Tasks

Provide info about the process

Keep up to date on developments & inquire about non-developments

Discuss expectations & realities

Help victim prepare for court & testimony

71DRAFT KVAA

INFORMATION is POWER!INFORMATION is POWER! Focus on Empowerment Provide Information, not Advice

Maximize Use of Law Related Resources◦KY Crime Victims Bill of Rights

Handbook ( http://ag.ky.gov/victims/)◦KASAP “Professionals Guide”

Build relationships with Local Attorneys for referrals to ensure access to legal resources

72DRAFT KVAA

73DRAFT KVAA

Identify how the mandatory reporting laws apply to:◦ Children◦ Spouses◦ Vulnerable adults

Learning Objectives: 1.5Learning Objectives: 1.5 Mandatory Reporting Mandatory Reporting

74DRAFT KVAA

Mandatory Reporting in Mandatory Reporting in Kentucky: Kentucky: Protections for Protections for Vulnerable PopulationsVulnerable Populations

Abuse or neglect of:◦Child (under 18)◦Spouse◦Adults with Disabilities

75DRAFT KVAA

Kentucky’s Universal Kentucky’s Universal Child Abuse & Neglect Reporting LawChild Abuse & Neglect Reporting Law

76DRAFT KVAA

Defining Child Abuse & Defining Child Abuse & NeglectNeglect

A child whose health or welfare is harmed or threatened when:

◦ An individual Inflicts, commits, allows, or creates a risk of physical, emotional injury, sexual abuse, sexual exploitation, or prostitution.

◦ Fails or refuses to provide basic needs

77DRAFT KVAA

What if I am not sure?What if I am not sure?

Do you have “reasonable cause to believe”?

Failure to report is a crime

You are immune from liability for reports made in good faith

78DRAFT KVAA

Where to Report Child AbuseCabinet for Health & Family Services, Division of Protection & Permanency

•Local Office•Regional (Centralized) Intake•State Abuse Reporting Hotline, 1-877-KYSAFE1 or 1-877-597-2331•New e-reporting for ‘non-emergency’- ??

Kentucky State Police

Local Law Enforcement Agency

County Attorney

Commonwealth’s Attorney 79DRAFT KVAA

What information do I give? What information do I give? Child's name, sex and approximate age Name of the person responsible for the abuse Description of the injury, neglect or threatened

harm Current location of the child Address of the child’s home, day care, and/ or

school Any immediate risk to the child OR a worker

going out to ensure the child's safety Your name & business address, unless you make

an anonymous report

80DRAFT KVAA

What if they won’t take the What if they won’t take the report?report?

Report to different agency

“If I am required to make it, you are required to take it.”

Ask to speak to supervisor

Family in Need of Services Referral

Other?

81DRAFT KVAA

Adult Abuse ReportingAdult Abuse Reporting

82DRAFT KVAA

83

Preliminary IssuesPreliminary IssuesCommon misperceptionsPurpose of reporting lawsBalance against other laws that give individuals legal rights to determine whether to report in most cases◦VAWA - Privilege◦HIPAA - Regulations

83DRAFT KVAA

84

Violence Against Women Violence Against Women ActAct

Requirement: ◦Provide SAFE Exams; No requirement to report

Purposes: ◦Provide more options for victims, ◦Increase medical treatment,◦Expand evidence collection,◦Increase reporting

DRAFT KVAA

85

Examining Mandatory Examining Mandatory ReportingReporting No law requires reporting all rapes to police

Mandatory reporting laws are very narrow and specific

• Details are critical!

Release to police without Victim’s authorization = HIPAA violation in most cases

85DRAFT KVAA

Child Adult with Disabilities

Spouse

CHFS, Local or State Law

Enf.,Prosecuting

Attorney

CHFS CHFS

Note: Adult cases must be reported to CHFS. Reports can only be made to

law enforcement with client authorization.

Reports must be made to Reports must be made to proper authorityproper authority

86DRAFT KVAA

Adult with Adult with Disabilities Disabilities (KRS 209)(KRS 209)

“Adult” means a person 18 or older who, because of mental or physical dysfunction, is unable to manage own resources, carry out the

activity of daily living, or protect himself from neglect, exploitation, or a hazardous or abusive situation without assistance, and

who may be in need of protective services◦Note: There is no age defining “elder” abuse, instead related to independence

87DRAFT KVAA

KRS 209A.020 (4) (Spouse)“Adult” means a person without regard to age who is the victim of abuse or neglect inflicted by a spouse

Note: different than “domestic violence” as defined in protection order statutes

88

Spouse Spouse Abuse Abuse

ReportingReporting

DRAFT KVAA

Key ThoughtsKey Thoughts Only “spouse” abuse must be reported, but CHFS will accept other reports

Inform client of duty to report

Involve client if possible Discuss safety planning

89DRAFT KVAA

Case Study: AnthonyCase Study: Anthony

24 year old male; Admitted to Psych Unit

after suicide attempt Discloses he was

sexually abused from 6 – 10 years old by grandfather, who recently died

90DRAFT KVAA

Case Study: BettyCase Study: Betty

22 year old female with intellectual disability;

During unrelated visit, you notice she frequently scratches her genitals & says her “belly” hurts

When asked, she says “Daddy’s friend” has been “messing with me… it’s a secret!”

91DRAFT KVAA

92

Case Study: CandiceCase Study: Candice 20 year old college student

Seeks treatment at ED after rape by local football player

She is afraid to talk to police, but wants to get medical treatment and try to rest

92DRAFT KVAA

93

Case Study: DianeCase Study: Diane

14 year old female who is brought to the hospital by her mom (Mary)

Mary says that she thinks Diane is having sex with her 15 year-old boyfriend, Bobby, and insists that a rape exam be performed

Diane is furious and says ‘NO’

93DRAFT KVAA

94

Reporting & Reporting & PrivilegesPrivilegesProfessional privileges are not grounds for refusing to report.

Only the attorney-client and clergy-penitent privileges are grounds for not reporting.

DRAFT KVAA

95

Internal Reporting isInternal Reporting isNOT Sufficient!NOT Sufficient!

The duty to report is an individual legal duty, which can only be fulfilled by reporting to designated authorities.

–KRS 620.040 (4) specifically prohibits internal investigations in lieu of official investigations.

DRAFT KVAA

Tips for effective reporting:Tips for effective reporting:

Use terminology used by the person – DO NOT USE LEGAL TERMINOLOGY!

Report necessary demographicsState when child will leave school or adult

is likely to return to dangerous situation.Make ADDITIONAL REPORTS if

additional information becomes available

◦MAKE ALL REPORTS IMMEDIATELY!

96DRAFT KVAA

After a report is made:After a report is made:Reporting may be a beginning, not an end!

Victims often need more support and advocacy after a report is made.

97DRAFT KVAA

98DRAFT KVAA

This Instructor Manual was produced by the Justice and Public Safety Cabinet and Western Kentucky University under 2011VFGXK004, awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this Instructor Manual are those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

DRAFT KVAA 99