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Child-Counselor Privilege Does Not Exclude Testimony in Expungement Proceedings

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Normally privileged conversations between a counselor and a child are not excluded from testimony at a child abuse expungement hearing.

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By Attorney Elisabeth K.H. Pasqualini, Child Abuse Defense and Sex Crimes Lawyer, Harrisburg, PA

Typically, any communications that a person, including kids, has with a counselor are privileged and not admissible "in any court or criminal proceeding," § 5945.1(b)(1); Pittsburgh Action Against Rape v. Dep't of Pub. Welfare, 2015 Pa. Commw. LEXIS 317, *1 (Pa. Commw. Ct. July 14, 2015).  However, the provisions of the Child Protective Services Law ("CPSL"), enacted in 1990 take precedence over those provisions in the Judicial Code that were enacted in 1980.  See 23 Pa.C.S. §6381(c).

The CPSL Provides, in relevant portion:

§ 6381. Evidence in court proceedings.

(a) General rule. - In addition to the rules of evidence provided under 42 Pa.C.S. Ch. 63 (relating to juvenile matters), the rules of evidence in this section shall govern in child abuse proceedings in court or in any department administrative hearing pursuant to section 6341 (relating to amendment or expunction of information).  ***

(c) Privileged communications. - Except for privileged communications between a lawyer and a client and between a minister and a penitent, a privilege of confidential communication between husband and wife or between any professional person, including, but not limited to, physicians, psychologists, counselors, employees of hospitals, clinics, day-care centers and schools and their patients or clients, shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse.

Here, the Pennsylvania Commonwealth Court held that "by their very nature and design, these subsections contemplate that a victim's counselor would be called to testify, since expunction proceedings necessarily involve a victim of abuse."  Whereas, the judicial code limits what a counselor may testify to on the basis of privilege in a court proceeding such as in criminal court.

In most child sex abuse cases, the children and youth agency will defer their hearing on an expungement request until the completion of the Commonwealth's prosecution of the underlying charges.  Sometimes, however, that does not happen and the agency will move forward if the prosecution waits too long or does not intend on filing charges.  It's important, therefore, to explore all the testimony of not only the victim and any witnesses, but the counselor that may have discussed the matter with the child at the Children's Resource Center ("CRC").  The CRC often combines counselling with its role as an aid for the prosecution.  (See link to blog article- CRC May Be State Agent).

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