1.A military victim advocate shall not be examined or required to give evidence in any
civil or criminal proceeding as to any confidential communication made by a victim to the
advocate, nor shall a clerk, secretary, stenographer, or any other employee who types or
otherwise prepares or manages the confidential reports or working papers of an advocate
be required to produce evidence of any such confidential communication, unless the victim
waives this privilege in writing or disclosure of the information is compelled by a court
pursuant to subsection 6. However, under no circumstances shall the identity of the advocate
be disclosed in any civil or criminal proceeding.
2.If a victim is deceased or has been declared to be incompetent, the privilege specified
in subsection 1 may be waived b
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1. A military victim advocate shall not be examined or required to give evidence in any
civil or criminal proceeding as to any confidential communication made by a victim to the
advocate, nor shall a clerk, secretary, stenographer, or any other employee who types or
otherwise prepares or manages the confidential reports or working papers of an advocate
be required to produce evidence of any such confidential communication, unless the victim
waives this privilege in writing or disclosure of the information is compelled by a court
pursuant to subsection 6. However, under no circumstances shall the identity of the advocate
be disclosed in any civil or criminal proceeding.
2. If a victim is deceased or has been declared to be incompetent, the privilege specified
in subsection 1 may be waived by the guardian of the victim or by the personal representative
of the victim’s estate.
3. A minor who is a member of the national guard or a branch of the armed forces of the
United States may waive the privilege under subsection 1.
4. A privilege under this section does not apply in matters of proof concerning the chain
of custody of evidence, in matters of proof concerning the physical appearance of the victim
at the time of the injury or the advocate’s first contact with the victim after the injury, or if the
advocatehasreasontobelievethatthevictimhasgivenperjuredtestimonyandthedefendant
or the state has made an offer of proof that perjury may have been committed.
5. The failure of an advocate to testify due to this section shall not give rise to an inference
unfavorable to the cause of the state or the cause of a defendant.
6. Uponthemotionofaparty,accompaniedbyawrittenofferofproof,acourtmaycompel
disclosure of certain information if the court determines that all of the following conditions
are met:
§916.2, MILITARY VICTIM ADVOCATES — PRIVILEGED COMMUNICATIONS 2
a. Theinformationsoughtisrelevantandmaterialevidenceofthefactsandcircumstances
involved in an alleged criminal act which is the subject of a criminal proceeding.
b. The probative value of the information outweighs the harmful effect, if any, of
disclosure on the victim, the advocacy relationship, and the treatment services.
c. The information cannot be obtained by reasonable means from any other source.
7. In ruling on a motion under subsection 6, the court, if the motion was filed in a
criminal proceeding to be tried to the court, or a different judge, shall adhere to the following
procedure:
a. The court may require the advocate from whom disclosure is sought or the victim
claiming the privilege, or both, to disclose the information in chambers out of the presence
and hearing of all persons except the victim and any other persons the victim is willing to
have present.
b. If the court determines that the information is privileged and not subject to compelled
disclosure, the information shall not be disclosed by any person without the consent of the
victim.
c. If the court determines that certain information may be subject to disclosure, as
providedinsubsection6, thecourtshallsoinformthepartyseekingtheinformationandshall
order a subsequent hearing out of the presence of the jury, if applicable, at which time the
parties shall be allowed to examine the advocate regarding the information that the court has
determinedmaybesubjecttodisclosure. Thecourtmayacceptotherevidenceatthehearing.
d. At the conclusion of a hearing under paragraph “c”, the court shall determine which
information, if any, shall be disclosed and may enter an order describing the evidence which
may be introduced by the moving party and prescribing the line of questioning which may be
permitted. The moving party may then offer evidence pursuant to the court order. A victim
advocate is not subject to exclusion under rule of evidence 5.615.
8. This section does not relate to the admission of evidence of the victim’s past sexual
behavior which is strictly subject to rule of evidence 5.412.