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AB-828 Human trafficking caseworker-victim privilege.(2019-2020)

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Date Published: 03/27/2019 09:00 PM
AB828:v98#DOCUMENT

Amended  IN  Assembly  March 27, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 828


Introduced by Assembly Member Ting

February 20, 2019


An act to amend Section 1038.2 of the Evidence Code, relating to privileges.


LEGISLATIVE COUNSEL'S DIGEST


AB 828, as amended, Ting. Human trafficking caseworker-victim privilege.
Existing law governs the admissibility of evidence in court proceedings and permits a trafficking victim to claim an evidentiary privilege for confidential communications between the victim and a human trafficking case worker. Existing law defines “human trafficking caseworker” as, among other things, a person who is employed by an organization that provides domestic violence shelter-based programs and who has specified training or experience. Existing law requires domestic violence shelter-based programs to provide certain basic services to victims of domestic violence and their children, including shelter on a 24 hours a day, 7 days a week basis, and a drop-in center that operates during normal business hours to assist victims of domestic violence who have a need for support services.
This bill would expand the definition of a human trafficking caseworker to include a person who is employed by a human trafficking victim services program program, as defined, and who has the training and experience described above. The bill would instead define a domestic violence shelter-based program for the purposes of the privilege to include programs that provide, in addition to the other basic services referenced above, either or both of shelter on a 24 hours a day, 7 days a week basis or a drop-in center that operates during normal business hours. The bill would expand the scope of the privilege by making each of these changes to the definition of a human trafficking caseworker.
The California Constitution requires that a statute that would exclude relevant evidence in any criminal proceeding be enacted by a 2/32/3 vote of each house of the Legislature.
Because this bill would exclude certain communications between a victim of human trafficking and a human trafficking caseworker in criminal proceedings, the bill would require a 2/32/3 vote.
Vote: 2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1038.2 of the Evidence Code is amended to read:

1038.2.
 (a) As used in this article, “victim” means any person who is a “trafficking victim” as defined in Section 236.1 of the Penal Code. the following terms have the following meanings:
(a) “Confidential communication” means information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted. It includes all information regarding the facts and circumstances involving all incidences of human trafficking.
(b) “Holder of the privilege” means the victim when the victim has no guardian or conservator, or a guardian or conservator of the victim when the victim has a guardian or conservator.
(c) As used in this article, “human“Human trafficking caseworker” means any of the following:
(1) A person who is employed by a domestic violence shelter-based program or a human trafficking victim services program, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who has received specialized training in the counseling of human trafficking victims, and who meets one of the following requirements:
(A) Has a master’s degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in the counseling of human trafficking victims.
(B) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a counselor under subparagraph (A), or is a psychotherapist, as defined in Section 1010. The training, supervised by a person qualified under subparagraph (A), shall include, but need not be limited to, the following areas: history of human trafficking, civil and criminal law as it relates to human trafficking, societal attitudes toward human trafficking, peer counseling techniques, housing, public assistance, and other financial resources available to meet the financial needs of human trafficking victims, and referral services available to human trafficking victims. A portion of this training must include an explanation of privileged communication.
(2) A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting human trafficking victims, and who meets one of the following requirements:
(A) Is a psychotherapist as defined in Section 1010, has a master’s degree in counseling or a related field, or has one year of counseling experience, at least six months of which is in rape assault counseling.
(B) Has the minimum training for human trafficking counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under subparagraph (A). The training, supervised by a person qualified under subparagraph (A), shall include, but not be limited to, law, victimology, counseling techniques, client and system advocacy, and referral services. A portion of this training must include an explanation of privileged communication.
(d) “Human trafficking victim services program” means one of the following:
(1) A nongovernmental organization or entity that provides shelter, program, or other support services to victims of human trafficking and their children and does all of the following:
(i) Employs staff that meets the requirements of a human trafficking caseworker set forth in this section.
(ii) Operates a telephone hotline, advertised to the public, for survivor crisis calls.
(iii) Offers psychological support and peer counseling provided in accordance with this section.
(iv) Makes staff available during normal business hours to assist victims of human trafficking who need shelter, programs, or other support services.
(2) A domestic violence victim service organization as defined in subdivision (b) of Section 1037.1.
(e) “Victim” means a person who consults a human trafficking caseworker for the purpose of securing advice or assistance concerning a mental, physical, emotional or other condition related to their experience as a victim of human trafficking.

(c)As used in this article, “confidential communication” means information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted. It includes all information regarding the facts and circumstances involving all incidences of human trafficking.

(d)As used in this article, “holder of the privilege” means the victim when the victim has no guardian or conservator, or a guardian or conservator of the victim when the victim has a guardian or conservator.

(e)As used in this article, “domestic violence shelter-based program” means a shelter-based program that provides all of the following basic services to victims of domestic violence and their children:

(1)Either or both of the following:

(A)Shelter on a 24 hours a day, seven days a week basis.

(B)A drop-in center that operates during normal business hours to assist victims of domestic violence who have a need for support services.

(2)A 24 hours a day, seven days a week telephone hotline for crisis calls.

(3)Temporary housing and food facilities.

(4)Psychological support and peer counseling provided in accordance with Section 1037.1.

(5)Referrals to existing services in the community.

(6)Arrangements for schoolage children to continue their education during their stay at the domestic violence shelter-based program.

(7)Emergency transportation as feasible.