New CPS guidance ‘will deter rape victims from seeking therapy’, campaign groups warn

New guidelines for prosecutors could deter rape victims from seeking vital therapy, campaign groups and survivors have warned.

This is because the guidance “increases the likelihood” that victims’ private therapy notes will be accessed by prosecutors and used to “discredit” them in court, according to the End Violence Against Women Coalition (EVAW), Rape Crisis England & Wales and the Centre for Women’s Justice.

The Crown Prosecution Service said police and prosecutors are being asked to give “very serious consideration” as to whether requesting private therapy notes represents a “reasonable line of inquiry that may reveal material relevant to the investigation or the likely issues at trial”.

As per the updated guidance, published on Thursday, any request for therapy notes must be specific, and only sought when necessary. “Any unfocused requests to browse patients’ files should not be made,” it said.

Until now, therapy notes have only been shared during a criminal investigation “if they contain material capable of undermining the prosecution case or assisting the suspect”.

But women’s groups say that once victims are aware that any disclosure they make in therapy could become part of a criminal case, “it is clear this will discourage them from having therapy or talking freely with a therapist”.

“‘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,” EVAW said in a statement.

The campaigners are calling for a higher level of confidentiality to be afforded to counselling notes, based on the Sexual Assault Communications Privilege Law of New South Wales in Australia.

This law significantly restricts the circumstances in which a disclosure made to a counsellor may be admitted in evidence.

“This is due to the fact that the primary purpose of counselling is not investigative; it is therapeutic,” EVAW said.

Rebecca Hitchen, head of policy and campaigns at the EVAW commented: “Why are we punishing victims of sexual violence rather than perpetrators?

“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.”

Jayne Butler, CEO of Rape Crisis England & Wales, said she is disappointed by the 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,” Butler said.

She continued: “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.

“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.”

Siobhan Blake, CPS lead for rape and serious sexual assault prosecutions, has urged victims not to delay in seeking therapy.

“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,” Blake said.

“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.”

Survivors previously spoke about the impact of disclosure of their private therapy notes in a report compiled by researchers at the University of Loughborough in 2020.

One woman said she left NHS counselling after reporting to the police because she feared how her notes could be used in court.

She said she was worried about how the defence team could use her notes against her and discredit her testimony.

“There’s some days where you don’t feel like it happened to you, and you deserve to be able to talk about that and how it affects you. And that’s very hard to explain to people who haven’t been through it,” she said.

“So when people hear those statements like, ‘sometimes I feel like it didn’t even happen’. That’ll be a point against me, when in reality, it’s just part of the lived experience of trauma.”