The 2023 Florida Statutes (including Special Session C)

Title VII
EVIDENCE

Chapter 90
EVIDENCE CODE

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F.S. 90.5035

90.5035 Sexual assault counselor-victim privilege.—

(1) For purposes of this section:

(a) A “rape crisis center” is any public or private agency that offers assistance to victims of sexual assault or sexual battery and their families.

(b) A “sexual assault counselor” is any employee of a rape crisis center whose primary purpose is the rendering of advice, counseling, or assistance to victims of sexual assault or sexual battery.

(c) A “trained volunteer” is a person who volunteers at a rape crisis center, has completed 30 hours of training in assisting victims of sexual violence and related topics provided by the rape crisis center, is supervised by members of the staff of the rape crisis center, and is included on a list of volunteers that is maintained by the rape crisis center.

(d) A “victim” is a person who consults a sexual assault counselor or a trained volunteer for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by a sexual assault or sexual battery, an alleged sexual assault or sexual battery, or an attempted sexual assault or sexual battery.

(e) A communication between a sexual assault counselor or trained volunteer and a victim is “confidential” if it is not intended to be disclosed to third persons other than:

1. Those persons present to further the interest of the victim in the consultation, examination, or interview.

2. Those persons necessary for the transmission of the communication.

3. Those persons to whom disclosure is reasonably necessary to accomplish the purposes for which the sexual assault counselor or the trained volunteer is consulted.

(2) A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or trained volunteer or any record made in the course of advising, counseling, or assisting the victim. Such confidential communication or record may be disclosed only with the prior written consent of the victim. This privilege includes any advice given by the sexual assault counselor or trained volunteer in the course of that relationship.

(3) The privilege may be claimed by:

(a) The victim or the victim’s attorney on his or her behalf.

(b) A guardian or conservator of the victim.

(d) The sexual assault counselor or trained volunteer, but only on behalf of the victim. The authority of a sexual assault counselor or trained volunteer to claim the privilege is presumed in the absence of evidence to the contrary.

History.—s. 1, ch. 83-284; s. 476, ch. 95-147; s. 1, ch. 2002-246.

F.S. 90.5035 on Google Scholar

F.S. 90.5035 on Casetext

Amendments to 90.5035

Arrestable Offenses / Crimes under Fla. Stat. 90.5035

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 90.5035.

Annotations, Discussions, Cases:

Cases from cite.case.law:

DOE, v. OLD DOMINION UNIVERSITY,, 289 F. Supp. 3d 744 (E.D. Va. 2018)

. . . . § 90.5035(2) (West 2017); Ga. Code Ann. § 24-5-509(b) (West 2017); Haw. Rev. Stat. . . .

STATE v. TOPPS,, 142 So. 3d 978 (Fla. Dist. Ct. App. 2014)

. . . privileges, i.e., lawyer-client privilege (§ 90.502(l)(c)l., 2.), sexual assault counselor-victim (§ 90.5035 . . .

FLORIDA HOSPITAL WATERMAN, INC. v. M. BUSTER, v., 984 So. 2d 478 (Fla. 2008)

. . . Stat. (2006) (providing for psychotherapist-patient privilege); § 90.5035, Fla. . . .

AMENDMENTS TO THE FLORIDA EVIDENCE CODE, 891 So. 2d 1037 (Fla. 2004)

. . . In chapter 2002-246, section 1, Laws of Florida, the Legislature amended section 90.5035, Florida Statutes . . .

STATE v. ROBERSON,, 884 So. 2d 976 (Fla. Dist. Ct. App. 2004)

. . . records or communications between a sexual assault counselor and a victim made confidential by section 90.5035 . . .

PINNELL, v. STATE, 838 So. 2d 596 (Fla. Dist. Ct. App. 2003)

. . . victim as the conversation fell within the sexual assault counselor-victim privilege created by section 90.5035 . . . privilege includes any advice given by the sexual assault counselor in the course of that relationship.” § 90.5035 . . .

STATE v. FAMIGLIETTI,, 817 So. 2d 901 (Fla. Dist. Ct. App. 2002)

. . . Those records would otherwise be immune from disclosure under section 90.5035, Florida Statutes (2001 . . . Under Pinder: To obtain in camera review of confidential communications or records under section 90.5035 . . .

STATE v. FAMIGLIETTI,, 817 So. 2d 915 (Fla. Dist. Ct. App. 2001)

. . . Fourth District Court of Appeal addressed the issue of disclosure of communications protected by section 90.5035 . . . The court said: Disclosure of material protected by section 90.5035 undermines the reasons for the privilege . . . To obtain in camera review of confidential communications or records under section 90.5035, a defendant . . . In Katlein, the Fourth District, discussing its previous decision in Pinder, explained that section 90.5035 . . .

KATLEIN, v. STATE, 731 So. 2d 87 (Fla. Dist. Ct. App. 1999)

. . . That information is absolutely privileged under section 90.5035, Florida Statutes (1995), because the . . .

GERHEISER, v. STEPHENS, 712 So. 2d 1252 (Fla. Dist. Ct. App. 1998)

. . . To obtain in camera review of confidential' communications or records under section 90.5035 [codifying . . .

STATE v. PINDER,, 678 So. 2d 410 (Fla. Dist. Ct. App. 1996)

. . . neither due process nor the Sixth Amendment require disclosure of communications protected by section 90.5035 . . . on the victim, both counselors asserted the sexual assault counselor-victim privilege under section 90.5035 . . . Section 90.5035 contains no exceptions or limitations, no balancing test for its application. . . . Disclosure of material protected by section 90.5035 undermines the reasons for the privilege. . . . We use the term as it is used in section 90.5035(l)(c), Florida Statutes (1995), to include a person . . .