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Counselling records trial use a ‘second violation’

The devastating effect on victims of their counselling notes being used in court as evidence in rape and sexual-assault cases was clear at the Dublin Rape Crisis Centre (DRCC) annual report 2023 launch (27 June).

Solicitor and sexual-assault survivor Sarah Grace said she was disappointed that a repeal of this practice was not included in the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023, which is soon to be enacted.

“As far as I can see a provision in the bill was all that was required to repeal that practice. And I have yet to hear a compelling argument as to why the victim’s counselling records are still admissible as evidence when those of the perpetrator are not,” she said.

On 17 July, 2019 a burglar broke into Grace’s bedroom and assaulted her while she slept. “My old life ended abruptly that day. I was condemned to walk the rest of my existence carrying this enormous, shattering, shameful, dirty little secret. Long after my attack I didn’t know who I was any more,” she said at the event.

Invasion of privacy

“Counselling helped me to rebuild myself afterwards but also because it was founded on the understanding that the words I spoke were uttered in the privacy, safety and sanctity of a therapy room.

“For all survivors of rape and sexual assault, the use of their counselling records in a trial is a second, more traumatising, more hurtful and more unforgivable violation – unforgivable because in contrast to the perpetrator, it comes at the hands of a system designed to protect us and calls itself justice.”

In March 2021, Grace published an open letter to Minister for Justice Helen McEntee outlining what she saw as seven major shortfalls in the criminal-justice system that needed to be urgently addressed to prevent any further unnecessary and disproportionate harm to survivors.

“Many of my recommendations still stand. Some require long-term overhaul of our system. But others are frustratingly low-hanging fruit that could have so easily have been addressed by now – including the disclosure of counselling records of victims at trial,” she said at the event.

Minister’s response

Launching the DRCC report, Minister McEntee raised the issue in her speech, acknowledging how traumatic counselling notes being disclosed and presented in trials is for victims.

“It prevents people from coming forward and also stops them in their tracks as they are going through the process. I can see how important it is to remove those barriers,” she said.

“There is now a clear action on this under the Zero Tolerance Strategy to combat sexual and gender-based violence that has been worked on.

“Preliminary discussions have taken place with the Director of Public Prosecutions [DPP] and the first meeting with all relevant stakeholders will be taking place in the coming weeks. Parallel to that there will be a stakeholder group to make sure the victim’s voice is taken into consideration on any decision in that regard.”

Confidential

In a moving video at the end of the DRCC event, rape victim Paula Doyle shared how she felt about her counselling notes being requested by the DPP in January ahead of her attacker’s trial: “These notes are supposed to be private and confidential, but not only that, they can be seen by the perpetrator. Hadn’t he done enough to me?

“He attacked me that night [6 September, 2019]; invaded my body. He’s affected me so much that I’ve tried to take my own life. And he’s reading all of this?

“If he had gone to counselling in the four-and-a-half years that we were waiting for my trial, his notes couldn’t have been requested as evidence. Where’s the justice in that?”