Particular PrivilegesHuman Trafficking Caseworker-victim Privilege

Section § 1038

Explanation

This law states that victims of human trafficking have the right to keep their communications with their caseworkers private. They can stop anyone else from sharing these private talks, whether they were spoken or written. The right to keep these communications private can be claimed by the victim, someone the victim allows to claim it, or the caseworker who handled or is handling the victim's case. However, if the court or authorized person says it's okay to share, the caseworker cannot claim this right.

The caseworker has to assert this right whenever they are present and it's allowed by the rule. They also need to tell the victim about any limits on how confidential their communications will be. This can be explained orally to the victim.

(a)CA Evidence Code § 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, whether made orally, in writing, or otherwise conveyed, between the victim and a human trafficking caseworker if the privilege is claimed by any of the following persons:
(1)CA Evidence Code § 1038(a)(1) The holder of the privilege.
(2)CA Evidence Code § 1038(a)(2) A person who is authorized to claim the privilege by the holder of the privilege.
(3)CA Evidence Code § 1038(a)(3) The person who was the human trafficking caseworker at the time of the confidential communication or is presently the human trafficking caseworker for the victim. However, that person may not claim the privilege if there is no holder of the privilege in existence or if the person is otherwise instructed by the court or by another person authorized to permit disclosure.
(b)CA Evidence Code § 1038(b) The human trafficking caseworker shall claim the privilege whenever the caseworker is present when the communication is sought to be disclosed and the caseworker is authorized to claim the privilege under this section.
(c)CA Evidence Code § 1038(c) 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.
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Section § 1038.1

Explanation

This law allows a court to require a human trafficking caseworker to disclose information related to a crime against a victim, but only if the court decides the information is more valuable as evidence than it is harmful to the victim or their therapy. The court might conduct a private review of this information, with only select individuals present. If the judge says the information is confidential, it cannot be shared without permission. However, if the court orders disclosure, the defendant must be informed. If there's a strong chance the information needs to be shared, specific procedures must be followed.

(a)CA Evidence Code § 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.
(b)CA Evidence Code § 1038.1(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)CA Evidence Code § 1038.1(c) If the judge determines that the information is privileged and shall not be disclosed, no person shall 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.
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Section § 1038.2

Explanation

This section defines key terms related to confidential communication between victims of human trafficking and their caseworkers. A 'confidential communication' covers all information exchanged privately, including facts about trafficking incidents and any related personal details.

A 'holder of the privilege' refers to who can assert confidentiality: the victim, their guardian, or their representative.

A 'human trafficking caseworker' works for an organization helping trafficking victims and must have specific education, training, and supervision.

'Human trafficking victim service organizations' are non-profits offering support services to victims, such as hotlines and counseling. Lastly, a 'victim' is anyone seeking assistance from a caseworker for issues stemming from trafficking.

As used in this article, the following terms have the following meanings:
(a)CA Evidence Code § 1038.2(a) “Confidential communication” means all information, including, but not limited to, written and oral communication, transmitted between the victim and the human trafficking 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 caseworker is consulted and made with the victim’s knowledge and consent. “Confidential communication” includes all information regarding the facts and circumstances relating to all incidences of human trafficking, as well as all information about the children of the victim and the relationship of the victim to the human trafficker.
(b)CA Evidence Code § 1038.2(b) “Holder of the privilege” means:
(1)CA Evidence Code § 1038.2(b)(1) The victim if the victim has no guardian or conservator.
(2)CA Evidence Code § 1038.2(b)(2) A guardian or conservator of the victim if the victim has a guardian or conservator.
(3)CA Evidence Code § 1038.2(b)(3) The personal representative of the victim if the victim is deceased.
(c)CA Evidence Code § 1038.2(c) “Human trafficking caseworker” means a person working for a human trafficking victim service organization, whether financially compensated or not, for the purpose of rendering advice or assistance to victims of human trafficking, who meets the requirements of paragraph (1) or (2) and who also meets the requirements of paragraph (3), if applicable:
(1)CA Evidence Code § 1038.2(c)(1) Has an advanced degree or license, such as a master’s degree in counseling, social work, or a related field and at least one year of experience in a caseworker role working directly with victims of human trafficking.
(2)CA Evidence Code § 1038.2(c)(2) Has at least 40 hours of training as specified in this paragraph and is supervised by an individual who qualifies as a human trafficking caseworker under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but need not be limited to, the following areas:
(A)CA Evidence Code § 1038.2(c)(2)(A) History of human trafficking.
(B)CA Evidence Code § 1038.2(c)(2)(B) Civil and criminal law relating to human trafficking.
(C)CA Evidence Code § 1038.2(c)(2)(C) Systems of oppression.
(D)CA Evidence Code § 1038.2(c)(2)(D) Peer counseling techniques.
(E)CA Evidence Code § 1038.2(c)(2)(E) Resources available to victims of human trafficking.
(F)CA Evidence Code § 1038.2(c)(2)(F) Crisis intervention and counseling techniques.
(G)CA Evidence Code § 1038.2(c)(2)(G) Role playing.
(H)CA Evidence Code § 1038.2(c)(2)(H) Intersections of human trafficking and other crimes.
(I)CA Evidence Code § 1038.2(c)(2)(I) Client and system advocacy.
(J)CA Evidence Code § 1038.2(c)(2)(J) Referral services.
(K)CA Evidence Code § 1038.2(c)(2)(K) Connecting to local, regional, and national human trafficking coalitions.
(L)CA Evidence Code § 1038.2(c)(2)(L) Explaining privileged communications.
(3)CA Evidence Code § 1038.2(c)(3) If the caseworker has been employed by a human trafficking service organization for a period of less than six months, that caseworker is supervised by another human trafficking caseworker who has at least one year of experience working with human trafficking victims.
(d)CA Evidence Code § 1038.2(d) “Human trafficking victim service organization” means a nongovernmental organization or entity that provides shelter, program, or other support services to victims of human trafficking and their children and that does all of the following:
(1)CA Evidence Code § 1038.2(d)(1) Employs staff that meet the requirements of a human trafficking caseworker as set forth in this section.
(2)CA Evidence Code § 1038.2(d)(2) Operates a telephone hotline, advertised to the public, for survivor crisis calls.
(3)CA Evidence Code § 1038.2(d)(3) Offers psychological support and peer counseling provided in accordance with this section.
(4)CA Evidence Code § 1038.2(d)(4) Makes staff available during normal business hours to assist victims of human trafficking who need shelter, programs, or other support services.
(e)CA Evidence Code § 1038.2(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.
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Section § 1038.3

Explanation

This section clarifies that there is no intention to change or reduce the obligation to report child abuse incidents as mandated by another law, specifically Section 11166 of the Penal Code.

Nothing in this article shall be construed as limiting any obligation to report instances of child abuse as required by Section 11166 of the Penal Code.
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