Counseling and the Right to Privacy: What Survivors Need to Know

[Note: The information provided in this post does not, and is not intended to, constitute legal advice; instead, all information and content are for general informational purposes only. Readers of this post should contact their attorney to obtain advice with respect to any particular legal matter.]

Privacy and confidentiality protections are extremely important for survivors of sexual violence, especially when survivors seek help through private counseling. This is a step in many survivors’ journeys toward healing, and a violation of privacy can be re-traumatizing. Confidentiality of records is a very important protection for survivors.  Unfortunately there have been cases where it is alleged that this protection has not been upheld in university settings–more recently in the news, a claim against Harvard University.  

When the survivor is a college student in private counseling while simultaneously involved in a school investigation regarding an incident of sexual violence or harassment, it is important that survivors understand what privacy protections exist. Our goal is to inform the community so survivors know what their protections are and can talk with their private counselors to ensure that they are upheld. Our focus today is on protections within a school investigation; however, it is important to be aware that these confidentiality protections also apply to individuals not in school or involved in an investigation. 

Confidential information discussed in private counseling sessions should never be released to a third party without the survivor’s consent, even if the third party makes a request for their records. Massachusetts law and professional ethics provide protections for counseling records and, in general, they should not be voluntarily released unless the survivor explicitly gives the provider permission. There may be some exceptions to this, and we encourage survivors to contact BARCC’s legal advocacy program if they have concerns about this. 

Universities– through the Title IX process -  are often in the position of conducting investigations when a student reports an incident of sexual violence, harassment, or stalking. Student survivors should be able to trust their school’s investigative process and feel confident that their private information is being handled appropriately. They should not have to worry about what they say in private counseling sessions in fear that their records could be turned over to their school as that could severely detract from the goal of counseling–which is to help heal. Privacy is essential to the most effective counseling and should be protected. 

As a survivor, what proactive steps can you take?

•  If you are currently receiving treatment or have received treatment by a licensed mental health professional (social worker, psychologist, counselor, etc.), you can talk to them about their record keeping practices and privacy of records. 
• You can let them know that you do not agree to share private information to any third parties. 
• You can request that the provider notify you of any requests they might receive from anyone regarding access to your records, and you can inquire about any exceptions that may exist.

Therapeutic services like counseling are intended to provide a safe space and should remain private. Survivors expect to maintain a level of privacy throughout this process. If there is the possibility of private records being shared with third parties without the survivor’s permission, that privacy expectation is shattered. Being aware of the protections afforded to you and a willingness to have a discussion with your counselor/therapist is an excellent way to ensure your private information stays confidential. 

If you feel you are in a similar situation and have questions or concerns, please contact BARCC at 617-492-8306 from 9:00 a.m. to 5:00 p.m. Monday through Friday and ask to speak with someone in the Legal Advocacy and Immigration Legal Services department.