Privacy: It is a victim’s right to control disclosure of his or her story and personal information. Maintaining privacy may directly reduce the chances of revictimization.
Confidentiality: The rules prohibiting the disclosure of victim information.
Privilege: Communications between certain professionals and victims as defined by statutes.
Human trafficking victims have pronounced interests in privacy as do the organizations and task forces that serve them. For human trafficking victims, the need for autonomy and control over her/his body, the private details of her/his life, and the decisions that must be made relative to the crime (including whether and how to assist with a criminal prosecution of their trafficker) are often essential to recovery. Safety from future exploitation is also a real concern.
Laws designed to protect confidentiality and/or establish privilege are complex. Federal confidentiality laws and state confidentiality laws vary. Protecting victims requires understanding relevant privacy rules and regulations, evidentiary privileges, state and federal statutes, state and federal constitutional rights (including crime victims’ rights amendments), and the unique status of minors, persons with disabilities, or other potential classes of victims.
The Importance of Privacy and Confidentiality
The concept of privacy is broader than either confidentiality or privilege. All people have an interest in protecting their own privacy. People choose what personal information they reveal to their friends, neighbors, and professional acquaintances on a daily basis. Privacy laws (such as the Fair Credit Reporting Act) limit access to private information, such as banking and tax information, and apply broadly.
Confidentiality is a more limited concept that describes the laws, rules, and regulations that prohibit certain professionals from disclosing information that can be used to identify the individuals they serve. Confidentiality protects a broad range of information, including the identity of clients, medical records, immigration status, and other information. Confidentiality rules can be found in professional ethics requirements (for attorneys, medical professionals, social workers, and law enforcement among others), grant funding requirements, and agency policies and procedures, among other places.
Privilege is a very specific legal protection that limits what information can be shared within a court proceeding. Each state specifies which professionals or relationships have privilege protections (most common are spouses, lawyers, doctors, and therapists), what information can be protected by privilege, and how privilege can be waived.
Sharing personal information without informed consent can be a violation of professional ethics for the provider and traumatizing for the victim. Confidentiality helps the victim feel safe when reporting crimes to police, receiving medical attention, or working with a service provider. It encourages victims to disclose information that may make them uncomfortable, embarrassed, or fearful; however, confidentiality is limited by policies and practices that are unknown to the victims. Victims often disclose their experiences to a victim service provider because of presumed confidentiality; however, there are several exceptions to confidentiality, which need to be taken into consideration before discussing the scope of confidentiality that can be guaranteed to a victim. It is very important for a task force to have clear outlines as to how confidentiality of data will be managed and maintained on all levels, and for all members of the task force to understand the policies, procedures, and ethical requirements that guide the other members.
Exceptions to Confidentiality
Additional Information and Training Resources:
To find more information about mandatory reporting laws in your state, visit our Resource page.
OVC TTAC offers a module on Confidentiality in the Victim Assistance Training (VAT) Online. Module lessons include: maintaining confidentiality, safely disclosing information, exceptions to confidentiality, and other laws and considerations.
Balancing Collaboration, Confidentiality, and Privilege in Human Trafficking Cases
This webinar, coordinated by OVC TTAC, explores strategies for promoting collaboration while protecting confidentiality.
The National Crime Victim Law Institute also provides training on protection of victims’ rights.
There are limited exceptions to confidentiality and privilege protections. They are briefly noted below, but providers and law enforcement need to understand the specific rules, policies, and procedures that apply to their position within their organization. Revealing confidential information should never be done lightly and without a clear intention. Improper releases can be a violation of state or federal law.
Additional Resources: For more resources regarding subpoenas and the Motion to Quash, review the National Network to End Domestic Violence’s Technology & Confidentiality Resources Toolkit for Nonprofit Victim Service Agencies & Advocates Working to Provide Safe & Effective Services to Victims of Domestic Violence, Dating Violence, Sexual Assault & Stalking.
For additional information and tools, visit the Resource page for Section 3.2 Information Sharing.