Chapter 5—Legal Issues

Publication Details

All jurisdictions in the United States have implemented regulations and laws designed to protect victims of domestic violence. The Violence Against Women Act (VAWA), which was signed into law by President Clinton in September 1994, strengthens many of these protections and outlines Federal as well as State enforcement provisions and penalties. The Federal penalties mandated by VAWA are more stringent than existing State penalties: The bill, for example, makes it a Federal offense to cross State lines in violation of a civil protection order. In order to provide useful advice and support, substance abuse treatment providers should be familiar with VAWA and with relevant State and local regulations as well as with the legal resources available to victims of domestic violence.

Substance abuse treatment providers should also have working relationships with the criminal justice system and local providers of legal and domestic violence services to whom they can refer a client with such problems. (See Appendix E for a listing of national programs and hotlines that can help providers identify local services.)

Federal Law

The Violence Against Women Act

VAWA is a civil rights statute that was passed as part of the Violent Crime Control and Law Enforcement Act (Public Law 103-322). Besides strengthening prevention and prosecution of violent crimes against women and children, the law made domestic violence a civil rights violation. What this means is that a victim of "crimes of violence motivated by gender" can bring a suit for damages in civil court in addition to any charges made in criminal court.

Some of the more important provisions of the law include

  • Greater penalties for sex crimes
  • Funding for States to improve law enforcement, prosecution, and services for female victims of violent crimes
  • Increased security in public transportation systems and national and urban parks
  • Funding for rape prevention and education programs, targeted to, among others, middle and senior high school students
  • Enhanced treatment for released sex offenders
  • The development of model confidentiality legislation
  • Funding for programs for victims of child abuse as well as for individuals who are homeless, for runaways, and for street youth at risk of abuse
  • The creation of a national domestic violence hotline
  • Funding to improve mandatory arrest or proarrest (a policy stating that police will make arrests in domestic violence incidents) programs, to improve tracking of domestic violence cases, to increase coordination of services, to strengthen legal advocacy, and to educate judges
  • The prohibition of the purchase of firearms by individuals subject to a final civil protection order
  • The implementation of more protections for battered immigrant women and children, including liberalization of the "battered spouse waiver" enforced by the Immigration and Naturalization Service (INS).

Some provisions of VAWA may be particularly important to women in substance abuse treatment who are also survivors of domestic violence. Under VAWA,

  • Past sexual behavior or alleged sexual predisposition of the victim is no longer admissible evidence in civil or criminal proceedings involving sexual misconduct.
  • New Federal criminal penalties apply to anyone who crosses a State line in order to commit domestic violence or to violate a civil protection order.
  • Anyone who forces a spouse or domestic partner to cross a State line for these purposes also is subject to penalties.
  • States are required to enforce civil protection orders issued by the courts of other States.
  • Victims must have the opportunity to testify regarding the potential danger of the pretrial release of a defendant.
  • Defendants are required to make financial restitution to victims.
  • The U.S. Postal Service is required to maintain the confidentiality of shelters and individual abuse victims by not disclosing addresses or other locating information.

One of the most important aspects of VAWA is the civil rights remedy for gender-motivated violence mentioned above. Relief in civil court may include monetary damages, injunctions, or declaratory judgment to redress the civil rights violation.

As of this writing, at least one district court decision has been issued that upholds the provisions of VAWA. In Doe v. Doe (929 F.Supp.608 D.Conn. 1996), a woman sought damages for 17 years of "physical and mental abuse and cruelty" by her husband. He moved to dismiss the case on the grounds that VAWA was unconstitutional. The Federal district court denied the motion to dismiss and upheld VAWA's constitutionality. If VAWA withstands other pending challenges, it may become an important weapon for women seeking to break free from battering partners.

Welfare Reform

The issue of preventing domestic violence has important implications for welfare reform; when considered in conjunction with issues involving substance abuse treatment, the overall picture becomes extremely complicated. In fact, some States (such as Kansas) have established laws that require people receiving welfare to be screened, assessed, and treated for substance abuse. It is important for treatment providers to be aware of the issues involved; careful coordination of services with domestic violence workers can help to avoid serious problems (Raphael, 1996).

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193), signed into law on August 22, 1996, calls for greater use of paternity determinations to enforce child support regulations. This can be problematic for welfare recipients who are victims of domestic violence. Abuse is often exacerbated or reactivated when legal action is taken against the batterer for child support. Many abused women are afraid to seek child support because they fear that doing so will result in the batterer being given visitation rights, which would force disclosure of their new location. Although current Federal law does provide "good cause" exemptions in a number of situations, including domestic violence, this option is used by fewer than 1 percent of welfare applicants nationally (Raphael, 1996; Zorza, 1995b). Providers should tell survivor clients concerned about confidentiality that these exemptions exist.

Local Laws: Civil Protection and Restraining Orders

The most common and easily obtainable mechanism of relief for victims of domestic violence is the civil protection order. This general term includes any injunction or other order (such as a restraining order) that is issued for the purpose of preventing violent or threatening acts against another person. Generally, these orders prohibit harassment, contact, communication, or physical proximity. Protection orders may be temporary or final and may be issued by a civil or a criminal court. Protection orders can be issued independently or as part of another proceeding, such as a divorce or criminal complaint, but are separate from support or child custody orders.

Statutes and case law in all States and the District of Columbia allow an abused adult to petition the court for an order of protection, and in most State courts, a parent or another adult can file for a civil protection order on behalf of a minor child (Klein and Orloff, 1993). Depending on the relevant statutes and case law on the books of any given jurisdiction, conduct sufficient to support issuance of a civil protection order can include

  • Criminal acts (most commonly battery, but also criminal trespass, robbery, burglary, kidnapping, malicious mischief, and reckless endangerment)
  • Sexual assault and marital rape
  • Interference with personal liberty
  • Interference with child custody
  • Assaults involving motor vehicles
  • Harassing behaviors
  • Stalking
  • Emotional abuse
  • Damage to property
  • Transferred intent (in which someone other than the petitioner is injured by violence directed toward the petitioner) (Klein and Orloff, 1993).

State courts have consistently upheld the constitutionality of domestic violence statutes. Civil protection order statutes have been held to rationally and reasonably uphold the State's interest in preventing domestic abuse, because these statutes do not

  • Deprive abusers of liberty and interest in their homes
  • Deprive abusers of their families or reputations
  • Inflict cruel and unusual punishment
  • Violate equal protection, due process, freedom of association, or free space.

In addition, courts have found that procedural aspects of civil protection orders do not violate the defendant's right to a jury trial. Most jurisdictions allow an individual to petition for civil protection with or without the aid of a lawyer. In fact, some courts have upheld laws that permit court clerks to assist petitioners in filing for protection orders.

Although the assistance of legal counsel is preferable, pro se representation -- or self-representation -- is an option for victims who cannot afford the services of an attorney. Pro se actions allow domestic violence survivors to seek the immediate protection of the courts, and it can also empower them as they seek to gain control of their lives. Furthermore, many areas lack attorneys who are able and willing to act as advocates for battered women, although in some jurisdictions lay advocates are available to counsel victims of domestic violence, help prepare court papers, and handle uncomplicated cases in court.

Other Legal Issues

For many clients, treatment for substance abuse includes an effort to acknowledge—to themselves and perhaps to others -- the harm they have visited on family and friends. A victim of domestic violence will explore the role substance abuse played in the abusive relationship. A perpetrator of domestic violence may have agreed to enter treatment in lieu of trial or incarceration; he will need to examine that aspect of his behavior as well as his substance abuse. Finally, a client who enters treatment presenting an entirely different constellation of issues may disclose during the course of counseling that he or she has either assaulted or been assaulted by a spouse. During the course of counseling victims -- or perpetrators -- of domestic violence, substance abuse program staff will hear about violent behavior. What is the program's legal obligation in such circumstances? How should programs deal with inquiries from lawyers or criminal justice officials? What should a program do when a counselor or client records are subpoenaed or the police come armed with a search warrant? This section discusses these issues and the tension between the need to protect people from harm and the need to respect the client's confidentiality. Confidentiality is protected under 42 Code of Federal Regulations (C.F.R.), Part 2, implementing 42 U.S.C. §290dd-2. (All references to §2 . . . below refer to these regulations.)

Although the Federal confidentiality regulations may prohibit reporting domestic violence to law enforcement authorities, substance abuse treatment providers should still ask about it. Whether the information is passed along or not, it still bears on treatment. Providers should acknowledge the abuse; help the client separate her responsibility from that of the batterer; counsel her that the violence may escalate; help assess her safety and offer available options; clearly document the abuse (enlisting the aid of a forensic examiner, if necessary); provide referrals to shelter, legal services, and counseling; and facilitate such referrals with her consent. Treatment providers must not let confidentiality restrictions prevent them from routinely inquiring about domestic violence in the course of providing appropriate care to clients.

Reporting Child Abuse And Domestic Violence

What should a program do when a client admits he has battered his spouse at some time in the past -- or during his participation in treatment? Does the program have a duty to call law enforcement officials if a woman threatens to assault her husband or child -- an act the counselor knows she has committed in the past? What can a program do if a client attacks his wife at the program? These are three very different questions that require separate analysis.

Is there a legal duty to report past crimes?

The general question about the duty to report past criminal activity is one that arises frequently for substance abuse treatment programs. Many substance abusers engage in criminal behavior while they are abusing drugs and even during the course of treatment. In a situation in which a client has told a substance abuse counselor that he or she has battered a spouse or child in the past, there are generally three questions the program needs to ask as it considers whether to make a report: (1) Does State law require the program to make a report? (2) Does State law permit the program to make a report? (3) How can a report be made without violating the Federal law and regulations governing confidentiality of patients' records (42 U.S.C. §§290dd-2 and 42 C.F.R. Part 2)?

First, under State law, is there a legal duty to report child abuse or other domestic violence? For substance abuse counselors the answer to this question is "yes" if child abuse is involved and generally "no" if battering of a spouse is involved.

Reporting child abuse

All States (and the District of Columbia) require a broad range of care providers -- including substance abuse treatment programs -- to report when there is reasonable cause to believe or suspect child abuse or neglect. While many State statutes are similar, each has different rules about what kinds of conditions must be reported, who must report, and when and how reports must be made. In most States, failure to report may result in civil or criminal charges. All States extend immunity from prosecution to persons reporting child abuse and neglect; in other words, a person who reports abuse cannot be sued.

While all States require agencies to report child abuse, most alcohol and drug programs are limited by Federal law in the kind and amount of information they may disclose to anyone without a patient's written consent. (The regulations require that a particular form of written consent be used. Appendix B contains a full discussion of these regulations as well as a sample consent form.) However, the Federal confidentiality regulations do permit substance abuse treatment programs to comply with State mandatory child abuse reporting laws.

Note, however, that this is a narrow exception to the regulation's general rule prohibiting disclosure of any information about a client. It permits only initial reports of child abuse or neglect. Programs may not respond to followup requests for information or subpoenas for additional information, even if the records are sought for use in civil or criminal proceedings resulting from the program's initial report, unless the client consents or the appropriate court issues an order under §2.64 or §2.65 of the regulations.

Reporting domestic violence against adults

Assault of another person, including a spouse, is a crime. Few States impose a duty to report a crime committed in the past, although some States do require physicians treating certain types of injuries incurred as the result of a violent criminal act (e.g., a shotgun wound) to make a report to the police. Even those States that still have laws that require reports of past criminal acts rarely prosecute violations of the law. Therefore, unless a particular State should mandate reporting of spousal abuse by health care providers and mental health counselors, it is unlikely that a substance abuse treatment counselor will have a legal obligation to report.

When is reporting permitted?

Does State law permit counselors to report a crime involving domestic violence to law enforcement authorities? Whether or not there is a legal obligation imposed on citizens to report past crimes to the police, occasions may arise when counselors feel a personal obligation to report an admission of domestic violence to law enforcement authorities. However, State law may protect conversations between counselors of substance abuse programs and their clients (by making them privileged) or exempt counselors from any requirement to report past criminal activity by clients. Such laws are important to clients in substance abuse treatment, many of whom have committed offenses during their years of alcohol or drug abuse. If part of the therapeutic process for clients includes acknowledging the harm they have done others, substance abuse programs that routinely reported clients' admissions of past criminal activity would have limited ability to work with clients in the recovery process. Laws protecting conversations between counselors of substance abuse programs and their clients are designed to protect that relationship, an important part of the treatment process. Survivor clients as well as batterers need to know that their disclosures are protected.

State laws vary widely in the protection they accord communications between patients and counselors. In some States, admissions of past crimes may be considered privileged and counselors may be prohibited from reporting them; in others, admissions may not be privileged. Moreover, each State defines the kinds of relationships protected differently. Whether a communication about past criminal activity is privileged (and therefore cannot be reported without the patient's consent) may depend on the type of professional the counselor is and whether he or she is licensed or certified by the State.

Any program that is especially concerned about this issue should ask a local attorney for an opinion letter about whether there is a duty to report and whether any counselor-patient privilege exempts counselors from that duty.

Complying with Federal and State law

Any program that decides to report a client's admission of past spousal abuse must do so without violating either the Federal confidentiality regulations or State laws. A program that decides to report a client's admission of battering or any other criminal activity can comply with the Federal regulations by following one of these three methods:

  1. If a criminal justice agency has required the batterer to enter treatment in lieu of prosecution or incarceration, and the batterer has signed a criminal justice system consent form that is worded broadly enough to allow this sort of information to be disclosed, the program can report the client's admission of a crime to the referring criminal justice agency. Generally, programs that treat such mandated patients agree to report progress in treatment, failure to attend treatment, and certain categories of criminal acts to the referring criminal justice agency. Mandated patients sign a special consent form permitting programs to do so. (A full explanation of criminal justice system referrals and consent form appears in Appendix B.) Note, however, that the Federal regulations limit what the criminal justice agency can do with the information. Anyone receiving information pursuant to a criminal justice system consent "may redisclose and use it only to carry out that person's official duties with regard to the patient's conditional release or other action in connection with which the consent was given" (§2.35(d)). Thus the disclosure can be used by the criminal justice agency that ordered the offender to enter treatment to revoke his or her participation in treatment in lieu of criminal justice processing, but most likely not to prosecute the batterer for a separate crime (in other words, for making the assault the program is reporting). Only if a special court order is obtained pursuant to §2.65 of the regulations (also explained in Appendix B) can information obtained from a program be used to investigate or prosecute a patient (42 U.S.C. §290dd-2(2)(C) and 42 C.F.R. §2.12(d)(1)).
  2. The program can make a report in a way that does not identify the individual as a client in a substance abuse program. (Disclosures that do not identify the offender as someone with a substance abuse problem are permitted. See the explanation of §2.12(a)(1) in Appendix B.) This can be accomplished either by making an anonymous report or -- for a substance abuse program that is part of a larger entity, say, a managed care organization -- by making the report in the larger entity's name. For example, a counselor employed by a program that is part of a mental health facility could phone the police, identify herself as "a counselor at the Palm County Health Center," and report the assault. This would convey the vital information without identifying the client as an alcohol or drug abuser. Counselors at free-standing substance abuse programs cannot give the name of the program.
  3. The program can obtain a court order under §2.65 of the regulations, permitting it to make a report if the crime is "extremely serious." The program must take care that the court issuing the order abides by the requirements of the regulations. (Court orders are discussed in Appendix B.)

By using any one of these methods, the program will have discharged its reporting responsibility without violating the Federal regulations. Before reporting, however, the program should also be sure that a report would not violate any State laws making communications between clients and counselors privileged. Because of the complicated nature of this issue, any program considering reporting a batterer's admission should seek the advice of a lawyer familiar with local law as well as the Federal regulations.

Is there a duty to report threats?

In working with batterers, substance abuse treatment programs may face questions about their "duty to warn" someone of a client's threat to harm his spouse or child. Even when a counselor has no legal obligation to report a client's threat, a treatment professional may feel an ethical, professional, or moral obligation to try to prevent a crime.

Over the past 20 years, States across the nation have adopted a principle -- through legislation or court decision -- requiring psychiatrists and other therapists to take "reasonable steps" to protect an intended victim when they learn that a patient presents a "serious danger of violence to another." This trend started with the case of Tarasoff v. Regents of the University of California, 17 Cal.3d 425 (1976), in which the California Supreme Court held a psychologist liable for money damages because he failed to warn a potential victim his patient threatened to, and then did, kill. The court ruled that if a psychologist knows that a patient poses a serious risk of violence to a particular person, the psychologist has a duty "to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances."

In most States, therapists and other care providers must warn a victim or the police when a patient makes a credible threat of violence to another identified person. (Of course, not every threat uttered by a patient should be taken seriously. It is only when a patient poses a serious threat of violence toward a particular person that the duty to warn arises.) Counselors who fail to warn either the intended victim or the police may be liable for money damages or license revocation.

In a situation where a client threatens to assault a spouse, and the counselor believes he is serious, the counselor must ask him- or herself at least two -- and sometimes three -- questions:

  1. Is there a legal duty to warn in this particular situation under State law?
  2. Even if there is no State requirement that the program warn an intended victim or the police, do I feel a moral obligation to do so?

The first question can only be answered by an attorney familiar with the law in the State in which the substance abuse program operates. If the answer to the first question is "no," it is advisable to discuss the second question with a knowledgeable lawyer too.

  1. If the answer to the two questions above is "yes," can the counselor warn the victim or someone likely to be able to take action without violating the Federal confidentiality regulations?

The problem is that there is an apparent conflict between the "duty to warn" imposed by the many States that have adopted the principles of the Tarasoff case and the Federal confidentiality requirements. Simply put, the Federal confidentiality law and regulations prohibit the type of disclosure that Tarasoff and similar cases require unless a substance abuse program can use one of the Federal regulations' narrow exceptions. These aside, the Federal regulations make it clear that Federal law overrides any State law that conflicts with the regulations (§2.20). In the only case, as of this writing, that addresses this conflict between Federal and State law (Hasenie v. United States, 541 F. Supp. 999 (D. Md. 1982)), the court ruled that the Federal confidentiality law prohibited any report.

There are five ways a substance abuse treatment program can report a client who makes a serious threat to harm someone (or himself). The first three of those methods have already been outlined above in the discussion about reporting admissions of past crimes:

  1. The program can make a report to the criminal justice agency that mandated the batterer into treatment so long as there is a criminal justice system consent form signed by the batterer that is worded broadly enough to allow this sort of information to be disclosed. (As noted above, the Federal regulations limit what the criminal justice agency partner can do with the information.)
  2. The program can make a disclosure to the potential victim or law enforcement officials that does not identify the individual who has made the threat as a patient in substance abuse treatment. This can be accomplished either by making an anonymous report or -- for a substance abuse treatment program that is part of a larger entity, such as a managed care organization -- by making the report in the larger entity's name.
  3. The program can go to court and request a court order in accordance with §2.64 of the Federal regulations, authorizing the disclosure to the intended victim, or in accordance with §2.65, authorizing disclosure to a law enforcement agency. The regulations limit disclosures to law enforcement agencies for the purpose of investigating or prosecuting a patient to "extremely serious" crimes, "such as one which causes or directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, and child abuse and neglect" (§2.65). See Appendix B for a discussion of both court order exceptions.
  4. The program can make a report to medical personnel if the threat poses an immediate danger to the health of any individual and requires immediate medical intervention (§2.51). Thus, for example, a program could notify a private physician about a suicidal patient so that medical intervention can be arranged.
  5. The program can obtain the client's consent. This is extremely unlikely if the client is the batterer, and even survivor clients often do not want their batterer's threats reported to the law.

If none of these options is practical, what should a program do? If a program believes there is clear and imminent danger to a client or another person, it is probably prudent to report the danger to the authorities or the threatened individual, particularly in States that follow the Tarasoff rule. While each case presents different questions, it is doubtful that any prosecution (or successful civil lawsuit) under the confidentiality regulations would be brought against a program or counselor who believed in good faith that there was real danger to a particular individual. On the other hand, a civil lawsuit for failure to warn might well result if a threat were actually carried out. In any event, the program should try to make the warning in a manner that does not identify the individual as a substance abuser.

As in other areas where there are no clear-cut answers and the law is in flux, programs should find a lawyer familiar with State law who can provide advice on a case-by-case basis. Programs would also be well advised to establish a protocol ensuring that the clinical or program director has a chance to review the situation before a report is made. "Duty to warn" issues are an area in which staff training may be helpful.

What should a program do if an assault occurs on the premises?

The answer is more straightforward when a client has committed or threatens to commit a crime on program premises or against program personnel. In this situation, the Federal regulations permit the program to report the crime to a law enforcement agency or to seek its assistance. Moreover, in these circumstances, the program can disclose details about the incident, including the suspect's name, address, last known whereabouts, and status as a client at the program (§2.12(c)(5)).

Communicating With The Legal System

Counselors working with victims—or perpetrators -- of domestic violence may find that lawyers, law enforcement officials, and others view them as a good source of information. A call from a lawyer asking about a client, a visit from a law enforcement officer asking to see records, or the arrival of a subpoena to testify or produce treatment records -- what should a program do in each of these circumstances?

The answer is (1) consult the client, (2) use common sense, and (3) as a last resort, consult State law (or a lawyer familiar with State law).

Responding to Lawyers' Inquiries

Starting with the first scenario -- a lawyer calls and asks about Jane White's treatment history or treatment. As a first approach to the question, Jane's counselor must tell the lawyer, "I don't know that I have a client with that name. I'd have to check my records." This is because the Federal confidentiality regulations prohibit any other response without the client's written consent. The regulations view any response indicating that Jane White is the counselor's client as an unauthorized disclosure that Jane White is in substance abuse treatment.

Even if the counselor has the client's written consent to speak with the lawyer, she may find it helpful to consult with the client before having a conversation about her: "I'm sure you understand that I am professionally obligated to speak with Jane White before I speak with you." It will be hard for any lawyer to disagree with this statement.

The counselor should then speak with the client to ask whether the client knows what information the caller is seeking and whether the client wants her to disclose that or any other information. She should leave the conversation with a clear understanding of the client's instructions -- whether she should disclose the information, and if so, how much and what kind. It may be that the lawyer is representing the client and the client wants the counselor to share all the information she has. On the other hand, the lawyer may represent the client's spouse or some other party with whom the client is not anxious to share information. There is nothing wrong with refusing to answer a lawyer's questions, but a polite tone is best. If confronted by what could be characterized as "stonewalling," a lawyer may be tempted to subpoena the requested information and more. The counselor will not want to provoke the lawyer into taking action that will harm the client.

If the lawyer represents the client and the client asks the counselor to share all information, the counselor can speak freely with the lawyer once the client signs a proper consent form. However, if the counselor is answering the questions of a lawyer who does not represent the client (but the client has consented in writing to the disclosure of some information), the counselor should listen carefully to each question, choose her words with care, limit each answer to the question asked, and take care not to volunteer information not called for.

Visits by Law Enforcement

A police officer, detective, or probation officer who asks a counselor to disclose information about a client or a client's treatment records must be handled in a similar manner. The counselor should give a noncommittal response, such as "I'll have to check my records to see whether I have such a patient." Of course, if the patient was mandated into treatment in lieu of prosecution or incarceration, program staff may be obligated to speak with someone from the referring criminal justice agency, and the client will have signed a criminal justice system consent form authorizing the program to do so.

If the officer's inquiry has come "out of the blue," the counselor should speak with the client to find out whether the client knows the subject of the officer's inquiry, whether he wants the counselor to disclose information and if so, how much and what kind and whether there are any particular areas the client would prefer she not discuss with the officer. Again, the counselor must get written consent from the client before speaking with the officer.

If the counselor knows that a client is a fugitive from justice, a refusal to assist or give officers information is a criminal offense in some States.

Responding to Subpoenas

Subpoenas come in two varieties. One is an order requiring a person to testify either at a deposition out of court or at a trial. The other—known as a subpoena duces tecum -- requires a person to appear with the records listed in the subpoena. Depending upon the State, a subpoena can be signed by a lawyer or a judge. Unfortunately, it can neither be ignored nor automatically obeyed.

In this instance, the counselor's first step should be to call Jane White -- the client about whom she is asked to testify or whose records are sought -- and ask what the subpoena is about. It may be that the subpoena has been issued by or on behalf of Jane's lawyer with Jane's consent. However, it is equally possible that the subpoena has been issued by or on behalf of the spouse's lawyer (or the lawyer for another adverse party). If that is the case, the counselor's best option is to consult with Jane's lawyer (after getting Jane's written consent) to find out whether the lawyer will object -- ask the court to "quash" the subpoena -- or whether the counselor should simply get the client's written consent to testify or turn over her records. An objection can be based on a number of grounds and can be raised by any party, including the person whose medical information is sought. Often, the counselor may assert the client's privilege for the client.

Dealing With the Police

A program may unknowingly admit a client who is sought by the police. If the police discover that someone they are seeking is at the program and come armed with an arrest warrant, what should the program do? How should programs handle search warrants? The answers to these questions are quite different.

Arrest Warrants

An arrest warrant gives police the authority to search the program facilities; however, the program is not authorized to help the police by pointing out the client they are seeking unless the client is being sought because he or she committed a crime on program premises or against program personnel. The unfortunate result is that the confidentiality of all clients in the program may be compromised when the police enter and search for a fugitive. There is no solution to this problem unless the police secure a court order under §2.66, which would authorize the program to disclose the identity of the client, or the program convinces the client to surrender. (Voluntary surrender by a client is a disclosure by the client, not the program.) It is usually in the client's best interest to surrender voluntarily, since arrest is probably inevitable and his cooperation may weigh in his favor with the prosecutor and judge when the question of bail arises. The risk is that the client will attempt to escape, which might expose the program to a charge of assisting unlawful escape. To reduce this possibility, the program should work with the police so that law enforcement personnel have secured the area around the program.

Search Warrants

A search warrant does not authorize the program to permit the police to enter the premises. Even if signed by a judge, a search warrant is not the kind of "court order" that the Federal regulations require before the program can allow anyone to enter and see clients or client records when clients have not consented. Law enforcement officials are unlikely to know about the restrictions of the Federal regulations, however, and they will probably believe that a search warrant permits them to enter and search the program. What should a program do?

Presented with a search warrant, program staff should show the officer a copy of the Federal regulations and explain their restrictions. Staff can suggest that the officer obtain a court order that will authorize the program to make the disclosure called for in the search warrant. No harm will ordinarily be caused by resultant delay (although the police may not agree with this view). The program should call its lawyer and let him or her talk with the police. Failing that, a program could try to call the prosecutor who has sent the police, explain the regulations, and point out that any evidence seized without the proper court order may be excluded at trial, since it will have been seized illegally.

If none of these steps works, the program must permit the police to enter. Refusal to obey a direct order of the police may be a crime, even if the police are wrong, and forcible resistance would be unwise. If the program has made a good faith effort to convince the law enforcement authorities to pursue the proper route, it is unlikely that it would be held liable for allowing entry when argument fails.

Conclusion

Programs should develop protocols for dealing with the constellation of legal issues that may arise during the treatment of victims—or perpetrators -- of domestic abuse. Programs should have a copy of the Federal regulations available at all times to show law enforcement officials and establish a relationship with an attorney who can be called upon to help in these situations. Finally, programs should reach out to law enforcement agencies before a crisis arises and work with them to develop ways of dealing with these kinds of issues. If the regulations are explained when there is no emergency and there can be no suspicion that the program is hiding anyone or anything, and a protocol is established, unpleasant confrontations may be avoided.