Victims of sexual violence must not be deterred from seeking counselling
Reporting sexual violence to the police can be an utterly terrifying experience, and the process of going through the criminal justice system often re-traumatises many victims and survivors.
It is absolutely vital that during that time, victims and survivors of these horrific crimes can access the mental health support they need, in whatever form best suits them. However, there are long standing issues surrounding therapy and counselling notes being disclosed to a court, including defence teams, with the records often being used as evidence to discredit the victim as a witness.
This appalling practise has not only concerned counselling practitioners for many years, but it has terrified victims and survivors. The fear that your deeply private thoughts, which were only intended to be shared in confidence with a professional, could now enter the public domain is indescribable. I’ve spoken with victims and survivors who have had their records disclosed and they were left traumatised at the potential reality of strangers and their abuser being able to listen while these conversations could be read out to the court room.
It is no wonder so many victims and survivors are requesting their case be dropped by the Crown Prosecution Service
In many cases, the records don’t end up being used as evidence, but the fact that the court can access them is often enough to deter many victims from going for counselling at all. In some cases, the police have actively discouraged victims and survivors from receiving mental health support with the warning that it could jeopardise their case. Regrettably, this is not uncommon, with requests for third party material especially for counselling notes, primarily taking place in rape and serious sexual offence cases (RASSO).
It is no wonder so many victims and survivors are requesting their case be dropped by the Crown Prosecution Service (CPS). We need victims to be able to trust their counsellor, the police and the criminal justice system overall. At the moment, it’s extremely saddening that this is not possible.
Unfortunately, despite calling on the government to make urgent improvements to the criminal justice system to prevent this, the Attorney General has instead done the opposite. In less than a month, new guidelines to the Crown Prosecution Service will come into force which risks exacerbating this already devastating issue.
Until now, therapy notes were meant to be disclosed in a criminal investigation only when there was a reason to believe they would undermine the prosecution or support the defence.
This new guidance will advise that therapy notes should be secured if it is thought they may be “relevant” to the case, but there is a risk that the use of “relevancy” is an incredibly broad, catch-all term that may be interpreted too broadly. It could be argued that all therapy notes have the potential to be seen as such, particularly given how the defence operates in cases of sexual offences, where victims’ credibility and conduct are consistently undermined.
Although CPS guidance does state that speculative disclosure requests should not be permitted, there is a strong risk that practitioners may not know where speculative or relevant tests begin and end. The new guidance requires much more clarity over terminology and should ultimately presume non-disclosure of counselling material in order to ensure the privacy and wellbeing of survivors.
Over the past few years, there has been a welcome shift at national policy-level within criminal justice agencies that recognises the need for procedural justice for survivors. Yet allowing the disclosure of such deeply personal and nearly always irrelevant material such as counselling records achieves the opposite of procedural justice, as it serves to make victims and survivors more vulnerable.
What’s more, by not sufficiently providing survivors with the trust and confidence in the justice system by allowing this practise to continue, they are more likely to drop out of the process, meaning the system fails to put their abuser behind bars. If we want to see perpetrators successfully convicted for their crimes, it is vital we provide sufficient support to victims and survivors.
These issues are ultimately linked to the wider issue of third-party material. It is not just counselling records that are being taken, but school records, social care records, as well as medical records. These requests are too often disproportionate, and serve as a way to find anything, no matter how unrelated, to undermine the credibility of victims and survivors. This is not only a significant invasion of privacy of survivors, but everyone else whose details are contained within this material.
Rape Crisis England & Wales, the End Violence Against Women Coalition and Centre for Women’s Justice are all calling for counselling notes to be made non-disclosable. This ask is not as ambitious or far off as it may sound, for example it has already been achieved in some states in Australia.
I will continue to fight for more protections to be put in place for victims and survivors to have a basic right to privacy while accessing mental health support and going through the criminal justice system. We need immediate action from the government to stop these damaging changes taking place.
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