SECTIONS 1038-1038.2 - California Statutes

EVIDENCE CODE

SECTION 1038-1038.2

1038. (a) A trafficking victim, whether or not a party to the
action, has a privilege to refuse to disclose, and to prevent another
from disclosing, a confidential communication between the victim and
a human trafficking caseworker if the privilege is claimed by any of
the following persons:
(1) The holder of the privilege.
(2) A person who is authorized to claim the privilege by the
holder of the privilege.
(3) The person who was the human trafficking caseworker at the
time of the confidential communication. However, that person may not
claim the privilege if there is no holder of the privilege in
existence or if he or she is otherwise instructed by a person
authorized to permit disclosure. The human trafficking caseworker who
received or made a communication subject to the privilege granted by
this article shall claim the privilege whenever he or she is present
when the communication is sought to be disclosed and he or she is
authorized to claim the privilege under this section.
(b) A human trafficking caseworker shall inform a trafficking
victim of any applicable limitations on confidentiality of
communications between the victim and the caseworker. This
information may be given orally.

1038.1. (a) The court may compel disclosure of information received
by a human trafficking caseworker that constitutes relevant evidence
of the facts and circumstances involving a crime allegedly
perpetrated against the victim and that is the subject of a criminal
proceeding, if the court determines that the probative value of the
information outweighs the effect of disclosure of the information on
the victim, the counseling relationship, and the counseling services.
The court may compel disclosure if the victim is either dead or not
the complaining witness in a criminal action against the perpetrator.
(b) When a court rules on a claim of privilege under this article,
it may require the person from whom disclosure is sought or the
person authorized to claim the privilege, or both, to disclose the
information in chambers out of the presence and hearing of all
persons except the person authorized to claim the privilege and those
other persons that the person authorized to claim the privilege
consents to have present.
(c) If the judge determines that the information is privileged and
shall not be disclosed, neither he nor she nor any other person may
disclose, without the consent of a person authorized to permit
disclosure, any information disclosed in the course of the
proceedings in chambers. If the court determines that information
shall be disclosed, the court shall so order and inform the defendant
in the criminal action. If the court finds there is a reasonable
likelihood that any information is subject to disclosure pursuant to
the balancing test provided in this section, the procedure specified
in paragraphs (1), (2), and (3) of Section 1035.4 shall be followed.

1038.2. (a) As used in this article, "victim" means any person who
is a "trafficking victim" as defined in Section 236.1.
(b) As used in this article, "human trafficking caseworker" means
any of the following:
(1) A person who is employed by any organization providing the
programs specified in Section 18294 of the Welfare and Institutions
Code, 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 towards
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.
(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 he or she has no guardian or conservator, or a guardian
or conservator of the victim when the victim has a guardian or
conservator.