'Like another trauma'
One survivor of child sexual abuse told us how deeply private therapy notes were read by her abuser after being made available to his defence team – and then used in court to make her seem untruthful.
- During therapy as an adult, she spoke about challenges that she was experiencing in her sex life with her husband as a result of the decade-long childhood abuse.
- Her therapist's notes were later requested by police as part of the investigation into her abuser – and then shared with his defence team. This ultimately meant that her abuser was able to read through her therapy notes.
- In court, the defence brought up the fact that she hadn't talked to her husband about the sexual challenges that she was experiencing, in order to make her seem like an untruthful person. All while her husband was sat in the room.
In her own words:
"It was like a physical punch because I wasn’t expecting it... My most intimate sexual details shared with my abuser. Not just the defence and the court, but my abuser. It is so sick, invasive and perverse."
Do survivors have to give access to notes taken by their counsellor or therapist?
No. But, if they refuse, many are being told by police and prosecutors that their case could be dropped or that these notes could be taken anyway through a subpoena.
Here's what one police investigator shared:
After the investigator took an "absolutely viable" investigation (in terms of evidence) to the Crown Prosecution Service, prosecutors requested the victim's records from when they had received counselling for a completely unrelated matter. When the investigator approached the otherwise supportive victim for these records, the victim said: "I’m not sharing, I’m not exposing my childhood life and my issues with anybody."
The CPS then dropped the case.
Most victims and survivors agree to share counselling or therapy notes as they want to cooperate with the investigation and believe that these notes will support their case.
In some instances, it does. But, in most, we know that it's used against them:
"My therapy records were used in court to discredit, humiliate and intimidate me."
~ A survivor
How a fairer model might work:
- Any request for counselling or therapy notes could only be made once a suspect had been arrested and charged. After that, the request would then have to be considered by a judge.
- Victims and survivors would be supported by an independent specialist lawyer who would help them to decide if they're okay with handing over their counselling or therapy notes – or if they would like to argue to the judge that these notes are privileged (in other words that they are private and cannot be made public).
- Then, even if the judge approved the request for counselling or therapy notes, any information found in them could only be used at trial if it counted as significant evidence for either the prosecution or the defence. And that the public interest in this information being used outweighed any negative impacts.
❓ How do we know this model works? Because it's already happening in Australia.
