Request By:
LaDonna Koebel, Assistant General Counsel
Kentucky Department of Juvenile Justice
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; S. Travis Mayo, Assistant Attorney General
Statute construed : KRS 635.527
Opinion of the Attorney General
LaDonna Koebel, Assistant General Counsel for the Kentucky Department of Juvenile Justice (hereinafter "DJJ"), has requested an opinion of this office regarding KRS 635.527, Disclosure of communications made in course of sexual offender's diagnosis and treatment. Specifically, Ms. Koebel has requested an opinion and interpretation of KRS 635.527 as it relates to two questions:
(1) Do the confidentiality provisions of KRS 635.527 prohibit Department of Juvenile Justice staff from reporting newly-identified child/infant victims of sexual assault to the Cabinet for Health and Family Services for the purpose of ensuring that victims receive treatment and care relating to sexual abuse?
(2) Do the confidentiality provisions of KRS 635.527 limit the ability of licensed professionals to report child abuse by other persons which are disclosed by the juvenile sexual offender during treatment?
With respect to the first question, we advise that KRS 635.527 creates a limited privilege against disclosure of communications in a civil or criminal proceeding. Thus, the statute does not prohibit DJJ staff from reporting newly-identified child/infant victims of sexual assault to the Cabinet for Health and Services (hereinafter "CHFS") for purpose of ensuring that the victims receive treatment and care. As to the second question, we advise that KRS 635.527 obviates the duty of DJJ staff to report child abuse by other persons disclosed by a juvenile sexual offender during treatment, but does not prohibit staff from reporting child abuse for purposes other than for use in a civil or criminal proceeding. Further, KRS 17.125 allows DJJ staff to disclose and share with other agencies named in that statute, including the Cabinet for Health and Family Services, all information the DJJ maintains on a juvenile or child sexual offender in a treatment program, so long as such disclosure remains within the parameters of KRS 635.527.
I. The Limited Privilege of KRS 635.527 Prohibits the Disclosure of Communications in Any Civil or Criminal Proceedings .
Effective as amended on July 12, 2006 through passage of House Bill 3, KRS 635.527 provides a limited privilege to communications made in the application for and during the course of treatment of a child sexual offender. In its entirety, KRS 635.527 provides as follows:
Communications made in the application for or in the course of a child sexual offender's diagnosis and treatment in the program, between a sexual offender or member of the sexual offender's family and any employee of the department who is assigned to work in the program, or any approved provider as defined in KRS 17.500, shall be privileged from disclosure in any civil or criminal proceeding, other than proceedings to determine the sentence, unless the sexual offender consents in writing to the disclosure or the communication is related to an ongoing criminal investigation. The privilege created by this section shall not extend to disclosures made for the purpose of determining whether the sexual offender should continue to participate in the program. The provisions of KRS 620.030 shall not apply to a communication made, received, or overheard if the communication is made pursuant to this section. The child sexual offender shall be informed in writing of the limits of the privilege created by this section.
The language of KRS 635.527 expressly limits the statutory privilege against disclosure of communications to disclosure in civil or criminal proceedings, other than proceedings to determine the sentence. The statute provides the following exceptions to the limited privilege: (1) if the child sexual offender consents in writing to the disclosure, or (2) the communication is related to an ongoing criminal investigation. KRS 635.527. Prior to amendment of the statute in 2006, the limitation of the privilege did not exist. The original language of KRS 635.527, effective on July 15, 2002, provided a broader privilege that did not include the limitation "? in any civil or criminal proceeding, ? ."
Testimony before the House Standing Committee on Judiciary on House Bill 3 recognized that the original version of KRS 635.527 was far broader than the language of KRS 197.440 creating the privilege for communications involving adult sexual offenders. See Hearing on H.B. 3 Before the H. Standing Committee on Judiciary , 2006 General Assembly Regular Session (Feb. 14, 2006) (testimony of Robert Lotz, Kentucky Association of Criminal Defense Lawyers). At the time of House Bill 3, KRS 197.440 contained the limiting language "? in any civil or criminal proceeding, ..." and now has language identical to that in KRS 635.527.
With the addition of the language "? in any civil or criminal proceeding, ..." KRS 635.527 limits the scope of the privilege against disclosure of communications to disclosure in civil or criminal proceedings, other than sentencing proceedings. Chapter 635 does not define the terms "civil proceeding" or "criminal proceeding. " Pursuant to KRS 446.080(4), all words and phrases must be construed according to the common and approved usage of language, but technical words and phrases that may have acquired a peculiar and appropriate meaning in the law must be construed according to such meaning. As the terms "civil proceeding" and "criminal proceeding" have acquired a peculiar and appropriate meaning in the law, each much be construed according to that meaning.
The term "civil proceeding" is defined as, "[a] judicial hearing, session, or lawsuit in which the purpose is to decide or delineate private rights and remedies, as in a dispute between litigants in a matter relating to torts, contracts, property, or family law." Black's Law Dictionary 300 (10th ed. 2014). The term "criminal proceeding" is defined as, "A judicial hearing, session, or prosecution in which a court adjudicates whether a person has committed a crime or, having already fixed guilt, decides on the offender's punishment; a criminal hearing or trial." Black's Law Dictionary 456 (10th ed. 2014). Applying those definitions, the limited privilege under KRS 635.527 bars disclosure of communications made in the application for or in the course of a child sex offender's diagnosis or treatment in any judicial hearing, session, or lawsuit to decide or delineate private rights and remedies. Likewise, the statute bars disclosure of such communications in any judicial hearing, session, or prosecution in which a court adjudicates whether a person has committed a crime or decides the offender's punishment or a criminal hearing or trial.
Our interpretation of KRS 635.527 promotes the objects of the statute and carries out the intent of the legislature in protecting communications from civil or criminal proceedings to encourage child sexual offenders to fully disclose information without fear of self-incrimination. KRS 446.080(1). Moreover, the fact that KRS 635.527 does not contain the more expansive language of privileges created by the Kentucky Rules of Evidence shows the intent of the legislature to limit the privilege of KRS 635.527. For example, under the lawyer-client privilege, "A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of legal services to the client," made between various individuals identified in the Rule. KRE 503(b). The Rule also identifies third parties other than the client who may claim the privilege. KRE 503(c). Unlike KRS 635.527, the lawyer-client privilege and other privileges under the Rules of Evidence are not limited to disclosures in any civil or criminal proceeding. 1 Additionally, KRS 635.527 does not specifically allow the child sexual offender to prevent any other person from disclosing a communication, or identify individuals other than the child sexual offender who may claim the privilege. Had the legislature intended the privilege under KRS 635.527 to apply as broadly as these other privileges, it would not have included the language limiting the privilege to disclosure in any civil or criminal proceeding.
Further, the position that the statute limits the privilege to disclosure of communications in any civil or criminal proceeding follows the holding in
Welch v. Commonwealth, 149 S.W.3d 407 (Ky. 2004). In Welch , the Court held that a child sexual offender's confession made to counselors during treatment was inadmissible against the offender in any subsequent criminal trial. 149 S.W.3d at 412. The child had been adjudicated as a juvenile sex offender and committed to the DJJ, and was sent to a treatment facility to participate in the juvenile sex offender treatment program. Id. at 408. During his treatment, the offender disclosed several uncharged acts of sexual misconduct, which the counselor disclosed to social workers, who alerted the Boyle County Sheriff's Department. Id. In the resulting criminal investigation, the offender gave a confession that was consistent with the information a deputy sheriff had gathered from the alleged child victim. Id. at 409. The Court found that the confession was involuntary because it was coerced by a state actor, and that it led directly to the police investigation and discovery of the offender's criminal conduct. Id. at 412.
In its opinion, the Court pointed out that the questioning regarding the offender's sexual misconduct other than the offense that led to his commitment was a necessary part of the juvenile sexual offender program, a program in which participation is court-ordered. Id. at 409-10. Participants were "strongly encouraged" to disclose and admit additional sexual misconduct to foster treatment and reprogramming of the behavior of those involved. Id. 2
Disclosure of information to the CHFS by DJJ staff to ensure that potential child victims of sexual abuse receive proper care and treatment would neither hinder the objectives of child sexual offender treatment nor run afoul of the holding in Welch . Contrary to the disclosure in Welch , such disclosure would not be for the purpose of the pursuit of subsequent criminal charges against the child sexual offender. Rather than put the child sexual offender in jeopardy of self-incrimination, the disclosure would be used for the purpose of protecting a potential victim of sexual abuse, not in any civil or criminal proceeding.
Moreover, KRS 17.576(1) mandates that agencies of the Commonwealth's juvenile justice system disclose and share all information they maintain on a juvenile in a facility or program, subject to restrictions imposed by state or federal law. The DJJ and the CHFS are such agencies. KRS 17.576(1)(g), (h). As KRS 17.576(2) reiterates, all information that the agencies share are subject to applicable confidentiality disclosure, redisclosure and access restrictions imposed by federal or state law. As such, DJJ staff must share with the CHFS communications made by a child sexual offender or a member of his family made during his diagnosis of treatment in the program about newly-identified child/infant victims of sexual assault, so long as such disclosure does not violate the limited privilege of KRS 635.527. The language of KRS 17.576 supports our position, as it, like KRS 635.527, provides the same limited privilege to communications made in the course of comprehensive sex offender presentence evaluations or treatment. 3 Although communications made during the course of child sexual offender treatment are not fully privileged, they are confidential under KRS 635.527. Thus, such communications are not subject to public disclosure under KRS 61.878(1)(l), and may only be shared among the agencies identified in KRS 17.576. See 03-ORD-039.
The privilege created by KRS 635.527 against the disclosure of communications made in the application for or during the course of the child sexual offender treatment program is limited to disclosure for use in any civil or criminal proceeding. The limited privilege does not apply to disclosure of communications in sentencing proceedings, or to communications related to an ongoing criminal investigation. KRS 635.527. Additionally, the child sexual offender may consent in writing to the disclosure, and the privilege does not extend to disclosures made for the purpose of determining whether the offender should continue in the program. Id. Therefore, KRS 635.527 does not prohibit DJJ staff from reporting newly-identified child/infant victims of sexual assault to the CHFS for the purpose of ensuring that the victims receive proper treatment and care related to sexual abuse. Disclosure of communications for such a purpose is not a disclosure for use in any civil or criminal proceeding, or in any judicial proceeding and, thus, would not violate KRS 635.527. Additionally, KRS 17.576 permits such disclosure so long as it is within the parameters of state or federal law restricting disclosure of information concerning juveniles.
II. DJJ Staff May, But are Not Required to Report Communications About Child Abuse, Neglect or Dependency, or Human Trafficking
In addition to limiting the privilege to disclosures in any civil or criminal proceeding, the legislature amended KRS 635.527 to obviate the duty to report under KRS 620.030. The legislature added the following sentence to the statute - "The provisions of KRS 620.030 shall not apply to communications made, received, or overheard if the communication is made pursuant to this section." KRS 635.527.
Pursuant to KRS 620.030(1), any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused has a duty to immediately cause a report to be made to: local law enforcement or the Kentucky State Police; the CHFS or its designated representative; or the Commonwealth's attorney or county attorney. The statute also mandates that a person who knows or has reason to believe a child is a victim of human trafficking must immediately cause a report to be made to the same agencies. KRS 620.030(3). Neither the husband-wife nor any professional client-privilege, other than the attorney-client and religious privileges, are grounds for refusing to report under KRS 620.030. KRS 620.030(4). Additionally, KRS 620.030(5) states that "[t]he [CHFS] upon request shall receive from any agency of the state or any other agency, institution or facility providing services to the child or his or her family, such cooperation, assistance, and information as will enable the [CHFS] to fulfill its responsibilities under KRS 620.030, 620.040, and 620.050." Any person who intentionally violates the mandatory reporting requirements is subject to criminal prosecution of up to a Class D felony. KRS 620.030(6).
Under KRS 620.050(1), a person acting on reasonable cause in the making of a report or acting under KRS 620.030 to 620.050 in good faith is immune from civil or criminal liability. Further, KRS 620.050(5) prohibits disclosure of the report of suspected child abuse, neglect, or dependency and all information obtained by the CHFS or its delegate representative as a result of an investigation or assessment made under KRS Chapter 620, and identifies specific individuals who may receive such information.
By adding the language that KRS 620.030 shall not apply to communications made in the course of treatment of a child sexual offender, the legislature removed the duty of DJJ staff to report information disclosed during the course of treatment that is related to child abuse, neglect, or dependency, or human trafficking. Prior to its amendment, KRS 635.527 ran contrary to the mandatory reporting requirement under KRS 620.030. As shown by direct testimony before the House Standing Committee on Judiciary concerning the inconsistency between the statues making information during sexual offender treatment privileged and the mandatory reporting statute, the amended language reflects the intent of the legislature to eliminate the inconsistency and obviate the duty to report. See Hearing on H.B. 3 Before the H. Standing Committee on Judiciary , 2006 General Assembly Regular Session (Feb. 14, 2006) (testimony of Mary Lee Perry, Kentucky Association of Sexual Assault Programs).
Consequently, under the amended version of KRS 635.527, DJJ staff is not obligated to report communications made pursuant to KRS 635.527, and would not automatically be subject to criminal charges for KRS 620.030 if they did not report such communications. However, the amended language of KRS 635.527 does not prohibit DJJ from disclosure those communications if such disclosure is within the parameters of the limited privilege of the statute.
III. Conclusion
In summary, KRS 635.527 does not prohibit DJJ staff from reporting newly-identified child/infant victims of sexual assault to the CHFS in order to ensure that the alleged victims receive appropriate treatment and care. Such disclosures could not be used in a civil or criminal proceeding. Further, KRS 635.27 removes the duty under KRS 620.030 of reporting potential child dependency, abuse, or neglect, or potential human trafficking, but does not prohibit DJJ staff from making such reports so long as the disclosure complies with the limited privilege of KRS 635.527.
Footnotes
Footnotes
1 See KRE 505, Religious Privilege ("A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the person and a clergyman in his professional character as spiritual adviser"); KRE 506, Counselor-client privilege ("A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling the client, between himself, his counselor, and persons present at the direction of the counselor, including members of the client's family"); and KRE 507, Psychotherapist-patient Privilege ("A patient, or the patient's representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of the patient's mental condition, between the patient, the patient's psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family").
2 In a prior Open Records Decision concerning the privilege created by KRS 197.440, this Office described the sexual offender treatment program in a similar fashion as the Court in Welch, including the position that an interpretation of the privilege that puts participants in jeopardy of self-incrimination is clearly inimical to the objective of the program. 03-ORD-039. There, we affirmed the Department of Corrections' denial of a request for records containing statements an offender made while participating in the program, pursuant to KRS 197.440. Id.
3 KRS 17.576 provides: "Communications made in the course of comprehensive sex offender presentence evaluations or treatment to the approved provider and any employee of the approved provided who is assigned to assist in the assessments shall be privileged from disclosure in any civil or criminal proceeding, other than to determine sentence, unless the offender consents in writing to the disclosure or the communication is related to an ongoing criminal investigation. The sexual offender shall be informed in writing of the limits of the privilege created in this section."