The Psychotherapist-Patient Privilege as Extended to Sexual Assualt and Rape Victims   Tags: evidence, georgia_law, health_law  

The psychotherapist-patient privilege, also known as the mental health privilege, can be asserted to keep an individual’s communications with his or her therapist during a civil or criminal trial private. The privilege has developed as a matter of public policy to foster the open communications needed between a therapist and his patient for effective treatment.

Every state has a statutory privilege for communications between a patient and his psychotherapist, however the extension of that privilege is usually limited to a licensed professional such as psychiatrists, psychologists and social workers. In 1996, the Supreme Court held that federal courts must recognize the psychotherapist-patient privilege with similar limitations on the professionals to which the privilege may apply.

Georgia initially recognized the psychologist-patient privilege in 1951 with the enactment of OCGA § 43-39-16. In 1995, Georgia included the communications between a psychologist and patent as those excluded from evidence under OCGA 24-9-21. These two statutes provide patients with a confidential privilege similar to that of the attorney client privilege.  These statutes, however, do not establish any privilege for communications between a patient and an unlicensed professional.

However many victims of sexual assault, molestation or rape cannot afford to pay for the services of a licensed professional. Instead they often turn to agencies and organizations, such as rape crisis centers, that promise confidentiality to their clients even though the records of such sessions may be discoverable becuase states lack statutory provisions for these types of agencies or the unlicensed, and often volunteer based, staff that works for such agencies.

This guide seeks to organize the law to provide an overview of the psychotherapist-patient privilege development both in the federal courts and in Georgia law. Additionally, this guide seeks to provide sources that argue both for and against the extension of the privilege to agencies, such as rape crisis clinics, and unlicensed counselors where a patient would reasonably believe that communications would be confidential.

This research guide is intended to provide an introduction to Federal and Georgia evidentiary law on the psychotherapist-patient privilege and the professionals to which it applies for victims of sexual assault and rape. An attorney or law student should  use this guide as a starting point in researching the mental health privilege. The guide contains both primary and secondary sources related to the privilege. The secondary sources that discuss the common law of many states. Also included are various internet resources. This guide is not meant to address the use of the privilege by defendants in criminal or civil proceedings or specific forms of waiver. However, some of the sources included do provide information on those subjects.

Christene Perry is a law student at Georgia State University's College of Law and will graduate in May 2010. This bibliography was written for the  Spring 2010 section of Professor Nancy Johnson's Advanced Legal Research class. For further information regarding this bibliography, please email njohnson@gsu.edu.

This research guide is not comprehensive. It should be used as a starting point for the law student or attorney to research the extension of the patient-psychotherapist privilege as it relates to rape crisis agencies. It is recommended that one Shepardize or KeyCite all statutes and cases included in this guide. If you need further assistance in researching this topic or have specific legal questions, please contact a reference librarian at the Georgia State University College of Law library or consult an attorney.  This guide was created and last updated in April 2010.