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Privilege – Patient-Counselor, § 905.04(4) (2001-02) – Extinguished by Mandatory Reporting Obligations

State v. Denis L.R., 2005 WI 110, affirming as modified 2004 WI App 51
For Intervenor Dawn R.: Dwight D. Darrow

Issue/Holding: Revelation of a child’s statement to a counselor, discussing whether or not she had been sexually abused, may not be resisted on ground of privilege:

¶7        We do not address these issues regarding waiver because we conclude that there is no privilege here. Fears reported the sexual assault to the authorities, presumably pursuant to his mandatory reporting obligations under Wis. Stat. § 48.891 [sic48.981]. Under the circumstances presented, we conclude that Fears’ reporting the abuse to the authorities under Wis. Stat. § 48.891 extinguishes Kirstin’s privilege under Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, there is no privilege with respect to any “confidential communications made or information obtained or disseminated for purposes of  . . . treatment of the patient’s . . . mental or emotional condition . . . ” with respect to the sexual abuse. See Wis. Stat. (Rule) § 905.04(2). Therefore, any information the counselors at Choices have that is relevant to the prosecution or defense of Denis for the sexual assault is not privileged. Accordingly, we affirm the decision of the court of appeals on other grounds.

¶37      The therapist-patient privilege in Wis. Stat. (Rule) § 905.04(2) is a testimonial rule of evidence. …

¶38      However, this privilege is not absolute. …

¶39      … Our review of the statute’s language indicates that the child abuse exception applies when three criteria are satisfied.

¶40      The first criterion requires an “examination” of the child to have occurred.  … [T]he term “examination” refers to and can encompass a wide variety of exploratory practices. …

¶41      The second criterion requires that the examination create “a reasonable ground for an opinion” of the enumerated providers that the child has been abused or neglected.

¶42      The third criterion requires that the opinion must relate to abuse or neglect that was caused by means other than accident or infliction by another.

¶43     When these criteria are satisfied, Wis. Stat. (Rule) § 905.04(4)(e)2 states that “[t]here is no privilege.”  …  We agree with the State that these criteria are satisfied here.

¶48      According to Wis. Stat. § 48.981(2), counselors are legally required to report to the authorities if the counselor has “reasonable cause to suspect” that the child “has been abused or neglected.” …

¶53      … Where a counselor reports child abuse under Wis. Stat. § 48.981(2) and (3), that counselor has expressed a “reasonable ground for an opinion  . . . that the abuse or neglect was other than accidentally caused or inflicted by another.”  See Wis. Stat. (Rule) § 905.04(4)(e)2. [19]

¶54      Here, Fears formed a reasonable suspicion that child abuse occurred ….

¶55      Accordingly, because the strictures of Wis. Stat. (Rule) § 905.04(4)(e)2. have been met, there is no privilege with regard to any confidential communications Kirstin made at Choices Family Services regarding the sexual assault for purposes of treatment. [20]  See Wis. Stat. (Rule) § 905.04(2) (“privilege” refers to “confidential communications made or information obtained or disseminated for purposes of  . . . treatment of the patient’s . . . mental or emotional condition . . . . “).

[19] This syllogism will not always hold true. Those required to report under Wis. Stat. § 48.981 include many persons not mentioned in Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, for example, if a teacher has a reasonable suspicion that a child is abused, and that child has been seeing a counselor, the teacher’s reporting does not abrogate the child’s counselor-patient relationship.
 [20] We limit the breadth of the exception’s application because Kirstin went to counseling for many reasons. The exception applies to the extent that any communications made for mental health treatment regarding the sexual abuse are not privileged. Kirstin’s other communications that related to other reasons for attending counseling remain privileged, unless they relate to the opinion that Kirstin was abused or neglected.


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