§ 8-804 — Confidential advisor

(a) This Section is intended to protect students at higher education institutions in this State who are survivors of sexual violence from public disclosure of communications they make in confidence to confidential advisors. Because of the fear, stigma, and trauma that often result from incidents of sexual violence, many survivors hesitate to report or seek help, even when it is available at no cost to them. As a result, they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the incident of sexual violence to the higher education institution or law enforcement. (b) In this Section: "Confidential advisor" means a person who is employed or contracted by a higher education institution to provide emergency and ongoing support to survivors of sexual violence with the training, duties, and responsibilities described in Section 20 of the Preventing Sexual Violence in Higher Education Act. "Higher education institution" means a public university, a public community college, or an independent, not-for-profit or for-profit higher education institution located in this State. "Sexual violence" means physical sexual acts attempted or perpetrated against a person's will or when a person is incapable of giving consent, including without limitation rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. "Survivor" means a student who has experienced sexual violence while enrolled at a higher education institution. (c) All communications between a confidential advisor and a survivor pertaining to an incident of sexual violence shall remain confidential, unless the survivor consents to the disclosure of the communication in writing, the disclosure falls within one of the exceptions outlined in subsection (d) of this Section, or failure to disclose the communication would violate State or federal law. Communications include all records kept by the confidential advisor in the course of providing the survivor with services related to the incident of sexual violence. (d) The confidential advisor may disclose confidential communications between the confidential advisor and the survivor if failure to disclose would result in a clear, imminent risk of serious physical injury to or death of the survivor or another person. The confidential advisor shall have no obligation to report crimes to the higher education institution or law enforcement, except to report to the Title IX coordinator, as defined by Title IX of the federal Education Amendments of 1972, on a monthly basis the number and type of incidents of sexual violence reported exclusively to the confidential advisor in accordance with the higher education institution's reporting requirements under subsection (b) of Section 9.21 of the Board of Higher Education Act and under federal law. If, in any judicial proceeding, a party alleges that the communications are necessary to the determination of any issue before the court and written consent to disclosure has not been given, the party may ask the court to consider ordering the disclosure of the communications. In such a case, communications may be disclosed if the court finds, after in camera examination of the communication, that the communication is relevant, probative, and not unduly prejudicial or inflammatory or is otherwise clearly admissible; that other evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by the communication or communications; and that disclosure is more important to the interests of substantial justice than protection from injury to the confidential advisor-survivor relationship, to the survivor, or to any other individual whom disclosure is likely to harm. (e) This privilege shall not preclude an individual from asserting a greater privilege under federal or State law that applies.

Legislative History

(Source: P.A. 99-426, eff. 8-21-15.)