New CPS guidance will block rape victims from therapy, say campaigners

The latest CPS guidance “increases the likelihood that rape victims’ private therapy notes will be accessed by prosecutors and used to ‘discredit’ them in court, which will deter many women from seeking this life-changing and life-saving support”, according to the End Violence Against Women Coalition (EVAW), Rape Crisis England and Wales and the Centre for Women’s Justice.

The guidance follows the Attorney General’s guidelines on disclosure – which states material should be sought only when “relevant” – and necessary data protection laws, to ensure “requests for personal information are lawful and within the necessary parameters”.

The CPS says the updated pre-trial therapy guidance seeks to “alleviate victim concerns” that accessing counselling could damage the prosecution case and they should not delay receiving therapy for any reason connected with a police investigation or prosecution

And it is advising prosecutors and police that “the health and wellbeing of the victim should always determine decision making with regards to pre-trial therapy”, and it is for the survivor to decide when to seek help and in what form.

Police and prosecutors are asked to give “very serious consideration as to whether requesting therapy notes represents a reasonable line of inquiry, says the CPS, adding: “Any requests for therapy notes must be specific and only sought when necessary. Any unfocused requests to browse patients’ files should be not be made.

“These notes will only be shared with the defence if they contain material capable of undermining the prosecution case or assisting the suspect.”

The CPS says “what is reasonable” will depend on the circumstances of the individual case.

Siobhan Blake, CPS lead for rape and serious sexual assault prosecutions, said: “The wellbeing of victims is paramount in every investigation. Survivors of sexual offences can seek the support they need and not worry their road to recovery will have an impact on court proceedings.

“Balancing a victim’s right to privacy with a suspect’s right to a fair trial is a sensitive issue. That’s why we are clear that therapy notes should only be requested where relevant and how they may be used must be clearly explained from the outset.

“Too few victims are seeing justice done, we must rebuild confidence, so more victims are able to see the criminal justice process through.”

Solicitor General Alex Chalk QC added: “The Government is committed to rebuilding confidence in our justice system, especially for victims, and the updated disclosure guidelines play a vital role in doing so.

“Difficulties in relation to the process of disclosure are not a new problem for the criminal justice system but I’m confident the guidelines will bring about positive change, balancing victims’ privacy right with the unassailable right to fair trial.  I am thankful to the criminal justice partners who have worked to improve disclosure performance and practice.”

However, campaigners believe the new guidance “will drastically lower the bar” with the advice that therapy notes should be secured if it is thought they may be ‘relevant’ to the case.

“‘Relevant’ is an incredibly broad, catch-all term – arguably all therapy notes have the potential to be seen so. Particularly given how the defence operates in cases of sexual offences, where victims’ credibility and conduct is consistently undermined,” says the EVAW.

“The CPS’ decision will dramatically reduce protection and rights to privacy for survivors of rape and sexual violence – many of whom experience severe, wide ranging and long term trauma.

“Once a victim is aware that any disclosure they make in counselling could make its way into the criminal justice system, it is clear this will discourage them from having therapy or talking freely with a therapist.”

The EVAW says the previous CPS position on disclosure of therapy notes was based on the legal case of R v Alibhai [2004]. This case has not been overruled and is still the legal precedent, it added, however, the Attorney General has decided that it does not set a “binding standard for what the test should be”.

“This guidance arrives at a time when some survivors are waiting up to three years for a trial to take place, and many don’t even reach that stage,” said the EVAW. “The reality facing many survivors is therefore potentially years without therapeutic support, and then being told a year or two down the line that their case is being dropped.

“This guidance was also meant to provide clarity and direction to therapists who try to create a sense of safety and confidentiality so that survivors can process trauma. The reality of this guidance will mean that therapists may feel it is too risky to offer therapy to survivors who have chosen to report to the police.”

The EVAW added: “When it comes to the police, prosecution and defence intruding on women’s lives by requesting therapy notes, medical, school and social services records, women and girls experiencing other forms of discrimination on the basis of characteristics such as race, disability and migration status, will be most impacted. This is because there may be more notes about them, it is more likely that notes contain prejudice and bias and they are more likely to be scrutinised in a prejudicial and biased way.

Campaigners, survivors and experts in violence against women and girls are calling for a “higher level of confidentiality” to be afforded to counselling notes.

They say it can be done, referencing the Sexual Assault Communications Privilege law in New South Wales, Australia, which “significantly restricts the circumstances” in which a disclosure made in the course of therapy or medical setting can enter into the criminal justice system.

This is due to the fact that the primary purpose of counselling is not investigative; it is therapeutic, dsays the EVAW, adding: “This law is well drafted and finds a middle ground that still allows for disclosure into the justice system, but the threshold is high enough to provide the level of reassurance needed to build victims’ confidence in therapy.”

London’s Rape Crisis Expert by Experience Panel said that t a time when a person’s world is “falling apart”, counselling can be a “vital part of the recovery process”.

Responding to the CPS guidance it said: “Being denied counselling or feeling as if obtaining counselling could have a negative impact on criminal proceedings is a very conflicted position to be put in.

“The lack of support during this time can lead to high attrition rates within the criminal justice system. We also believe the relationship between a counsellor and client should be sacrosanct for both their sakes and notes taken during sessions should not be available for disclosure.

“The practice of defence counsel using a complainant’s own counselling notes against them in court is indescribably painful, perverse and a practice that needs to be urgently re-evaluated.

“Confidential counselling is imperative for the welfare and wellbeing of those going through the criminal justice system; it is a lifeline that should be available to all who wish to receive counselling without consequence.

“The ability to access safe, effective and confidential counselling should be the right of everyone who has experienced sexual violence.”

Rebecca Hitchen, head of policy and campaigns at the EVAW said rape myths and stereotypes continue to play a major role in whether a case is taken forward or not.

“Scrutinising therapy notes in a courtroom strips them of their context and sends a message loud and clear that it is survivors who are on trial, rather than the men who raped them,” she added.

“We cannot understand the motive behind a move which will undoubtedly cause significant additional trauma to women and girls going through the courts while deterring others from accessing support.

“This guidance has been two decades in the making – it is unacceptable that the CPS have chosen to ignore legal precedent and issue guidance that will prevent survivors from access life saving therapeutic support.”

Jayne Butler, chief executive officer of Rape Crisis England and Wales, added that they were “incredibly disappointed” by the CPS decision not to make counselling and therapy notes confidential for rape survivors.

“It goes against the very foundation of counselling; that it is a safe space for a survivor to explore their feelings in confidence,” she said. “This decision means that once again, survivors are left to choose between seeking justice and seeking support, when they should absolutely have a right to both. With the huge backlog of cases, survivors are being left to cope without specialist support for years on end.

“The CPS’ guidance states that requests for counselling notes can be obtained when “deemed relevant” – but this is open to interpretation and has the potential to be misapplied. We know that counselling and therapy is based around feelings and not facts, therefore, we believe it holds no relevance in a criminal case.

“Worryingly, this decision means that women and girl’s credibility will remain the focus of rape and serious sexual offence investigations and dissuade victims and survivors from accessing the vital support they need. Rape is a devastating crime, which has a huge and long-lasting impact on victims and survivors. With so many barriers to justice, the very least the CPS can do is ensure those who have found the strength to take a case to trial are able to do so with specialised support in place. It is their right.

“The decision emphasises the need for independent legal representation for all those who report rape, as this will support survivors to navigate the legality of requests for counselling notes and provide survivors with the ability to make informed consent.”

Kate Ellis, solicitor at the Centre for Women’s Justice, raised concerns that the Attorney General’s latest guidelines on disclosure were “too ambiguous” and had the potential to “confuse investigators as to the circumstances in which third party material requests are necessary”.

She also fears that the CPS guidance lacks the “clear and unequivocal protections” that victims will need to have confidence that they can access (and speak freely in) therapy without that conflicting with the criminal process.

Ms  Ellis said: “While the CPS’ new pre-trial therapy guidelines do expressly recognise that victims’ access to therapy should be a priority – which is welcome – they have at the same time removed the strict legal approach that was set out for police and prosecutors in the original draft guidelines on which they consulted two years ago, which said in unequivocal terms that therapy records should only ever be obtained where there was a basis to believe they might assist the defence.”

The CPS said the new guidance has been developed following extensive consultation with medical experts and victims’ groups, adding: “It also contains expert insights into the impact of trauma on a victim’s memory and demeanour to help address concerns about inconsistencies in victims’ accounts during therapy.”