A rape victim’s recovery record could be used against them

If you are a victim of rape or sexual abuse, you can report it to the police and reasonably expect some form of justice. But the search for criminal justice is often an extremely difficult and stressful experience.

From disbelief during the reporting process, to reliving a tremendously traumatic experience over and over again, to saying there isn’t enough evidence to bring a case to justice, it’s no secret that victims and survivors are consistently let down by the system .

We only have to look at the low prosecution rate for rape cases (only 1.3% of reported cases are actually charged) to see that there is a fundamental flaw in the criminal justice process.

One part of this process that is so difficult for victims and survivors, and one that is seldom talked about, is the issue of pre-trial therapy. When investigating cases related to sexual violence, police may request and receive records of counseling or therapy given to victims and survivors. Counseling or therapy notes can be shared with investigators as needed.

These records, which describe a woman’s most personal thoughts and feelings related to her rape or sexual abuse, can be scrutinized by the police or, even worse, viewed by her rapist and his legal team if deemed relevant to her credibility . Let that sink in for a moment. A man who commits a rape could have access to his victim’s recovery records, and these records could be used to try to discredit her.

In addition, requests may be made for historical counseling or therapy records that predated the rape itself. A space meant to be safe, confidential, and healing is subject to external scrutiny.

The result is that victims and survivors are advised to wait until the criminal trial has taken place before seeking therapy or counseling, or to avoid discussing details of their assault in their sessions. Limiting the support of a victim and survivor in this way is extremely damaging, can prolong their trauma and deprive them of the right to receive appropriate professional support.

This is an appalling situation for a survivor. They must choose between seeking justice or seeking support, although they should definitely have a right to both. In fact, for many people, both are part of the road to recovery.

Crown prosecutors, after consulting the public, recently released guidance on pre-trial therapy, stating that speculative requests for counseling notes are not permitted, but that notes may be obtained where deemed relevant. There are many potential problems with this, as the term ‘relevance’ is ambiguous and easily interpreted.

In our joint report, “The Decriminalization of Rape,” we recommended that counseling and therapy notes be “undisclosed,” which would afford counselors the same privileges of confidentiality as are found in the legal profession. We know that counseling and therapy are based on feelings and not facts, so we believe they have no relevance in a criminal proceeding.

Following recent guidance, we want to emphasize the need for victims and survivors to have access to therapy before, during and after a trial without having to censor what they say to their counselor or therapist.

Rape is a devastating crime that has a tremendous and long-lasting impact on victims and survivors. Why do we keep asking survivors to pay for something that wasn’t their fault? With so many obstacles to justice, the least the CPS can do is ensure that those brave enough to take a case to court can do so with specialized assistance.

Jayne Butler is Chief Executive Officer of Rape Crisis England & Wales