Rapists’ lawyers are using their victim-survivors’ counselling notes in court. This needs to stop

Sexual violence causes profound trauma and many victims seek counselling and support in its wake. Access to counselling is crucial to promote recovery for victim-survivors.

Like anyone seeking health care, victim-survivors have a reasonable expectation that what they say to a counsellor – which might include a psychologist, a rape crisis worker or social worker – will remain private.

Yet, counselling records including notes, transcripts and even audio and video files are ending up in the hands of the alleged perpetrators’ legal teams. These records, including calls to 1800 RESPECT, might even relate to counselling the victim-survivor received before the rape.

Journalist Nina Funnell has launched a campaign calling for law reform to protect victim-survivors’ counselling records from subpoena in rape trials. The campaign has garnered thousands of signatures and widespread community support.

So why are victim-survivors’ counselling notes being given to defendants’ lawyers? And what can be done about it?

The legal landscape

Each state and territory in Australia has laws that are meant to protect counselling records from being used in court. These protections are often referred to as a sexual assault communications privilege. The privilege operates differently across Australia.

But police, prosecution or defence legal teams may subpoena notes about the content of counselling sessions to be used as evidence in a case. A subpoena is a court order that legally requires someone to give documents to the court.

For example, police might subpoena counselling files to go into the brief of evidence. During this process, copies are made for the defence team, meaning that suspected perpetrators also have access to the counselling information.

Why do accused rapists want to access victims’ counselling records?

A key tactic for the defence in criminal rape trials is to attack the character of the victim. This practice is so well-established that victim-survivors commonly refer to sexual assault trials as a “second rape”.

In seeking access to counselling records, defence teams are hoping to attack a victim’s credibility. A victim-survivor who shares feelings of self-blame in counselling, for example, might be constructed as having made a false accusation. Yet, it is well established that self-blame is common in post-traumatic stress disorder.

Legal teams might argue the counselling records are relevant information regarding a person’s emotional state or account of events.

But such evidence is weak. Academics have long argued that records of counselling sessions have no place in a court room.

Legal (ir)relevance

Counselling sessions are not forensic interviews. They are not concerned with fact-finding. Counselling is a conversation, focused on feelings and impact, that takes place on the victim’s terms and in their words. There is no obligation to share every detail. But they should also be a space where any detail can be safely shared.

In that context, victim-survivors might focus on aspects of the assault that are unrelated to the legal process. This might include how it impacted their relationships, or on other aspects of their trauma.

Access to the records offers defence lawyers an avenue to cross-examine victims on matters unrelated to the rape, including their use of drugs or alcohol, prior experiences of sexual violence or even consensual sex, or the impact of the rape. These arguments draw on myths and stereotypes about rape that shift blame onto victim-survivors and away from perpetrators.

For these reasons, there is no evidentiary value in a counselling record.

Impact on victims and therapists

Accessing a victim’s counselling records without their consent can have a profoundly harmful impact on victims and their recovery.

Victim-survivors have expressed that this intrusion can stall the recovery process and can compound the sense of powerlessness, loss of control and violation inherent in sexual violence.

The effectiveness of counselling is dependent on a relationship of trust between the victim-survivor and their counsellor. That trust is often rooted in privacy and confidentiality.

Accessing counselling records can fundamentally undermine the work of mental health services. It can also discourage victims from seeking help when they need it the most.

Victim-survivors should not have to choose between seeking counselling and seeking justice. But, this is the reality for survivors, given how common it is for counselling records to be sought in the criminal justice process.

What needs to change

Counselling services can resist subpoenas in some circumstances. And most specialist sexual assault services do, as policy. Others, such as 1800 RESPECT, fail to fight subpoenas.

For victim-survivors, though, the intrusion begins at the request. For the general public, the intrusion might be the ability for courts to subpoena them at all.

We urgently need stronger law reform across Australia to protect victim-survivors’ counselling records from being subpoenaed. As the Australian Law Reform Commission recently stated, an absolute protection:

prioritises the public interest in ensuring that people who have experienced sexual violence seek therapeutic treatment and are not deterred from reporting.

What can victims do to protect themselves?

If you are calling a sexual assault crisis hotline, you can request that your call not be recorded. Or, you can call a service that does not record calls, such as 1800 FULL STOP.

You can be anonymous. You do not have to give any identifying details, including your name. You can use a fake name if you prefer. You can turn caller-ID off, too.

If police ask you to sign over consent to having your records accessed, you can say no. Before you agree, you should seek your own independent legal advice, including through legal aid, women’s legal services or a sexual assault service in your area.

Victim-survivors deserve to access confidential counselling and support in the aftermath of sexual violence. Governments owe survivors – and the community – a safe therapeutic service system.