Restrictions on therapy for rape victims before trials to be reversed
Old guidance said evidence could be ‘tainted’ by counselling, causing police, lawyers and charities to warn against it
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Restrictions on rape victims receiving therapy during their attackers’ trials are to be reversed after almost two decades.
Crown Prosecution Service (CPS) guidance released in 2002 said that evidence could be “tainted” if victims discussed their experiences and that they could be accused of being “coached”.
It resulted in thousands of rape complainants being told that they could not access counselling during police investigations or, if they did, that they could not discuss details of alleged crimes.
Others have been put off therapy after being informed that police could request records of sessions, and potentially pass them to the defence.
Women’s groups campaigned for change to the guidance as the number of prosecutions plummeted and delays to court cases increased, with the average rape victim now waiting more than a year between a police report and a charge.
New guidance released for consultation on Thursday makes clear that “no one should be prevented from accessing therapy”, the CPS said.
The draft document, seen by The Independent, says that the criminal justice system has “advanced considerably” since the 2002 guidance.
“Exposure to criminal offending, in particular sexual violence, can lead to significant psychological and emotional difficulties,” it adds.
“The fear of causing a criminal prosecution to fail has in some instances resulted in therapeutic support to victims being delayed until after the trial, on the basis that it might be argued that the treatment could have tainted the victim’s evidence by interfering with the accuracy of their recall of the incident.
“This fear is speculative and conflicts with the need to ensure that victims are able to receive, as soon as possible, effective treatment and therapeutic support to assist their recovery.
“This guidance is clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution.”
The document states that all victims must be aware that they can “access therapy to ensure that their emotional and psychological needs are met before, during and after the trial”, both for sexual offences and other offences.
It says police officers must not recommend against therapy or make “speculative enquiries” to access notes from sessions.
However, the guidance says that investigators must “pursue all reasonable lines of inquiry”, and may still ask for a victims’ consent to obtain therapy records.
“Material generated as a result of therapy will only be disclosed by the prosecutor to the defence in criminal proceedings if it might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused,” it says.
Claire Waxman, the Victims’ Commissioner for London, said: “It is vital that all victims are able to access pre-trial therapy, but many victims will not do so without the assurance that their therapy notes will not be shared with the police or used to discredit their account.”
Rape prosecutions have now fallen to a record low in England and Wales, with only 1.4 per cent of more than 55,000 offences reported to police being charged in the year to March.
Trauma, delays and police demands to access victims’ mobile phones and medical records have been blamed for causing increasing numbers of complainants to drop out even if their cases are taken forward.
The average time between a report and a charge for sexual offences is now 233 days for all sexual offences and 395 days for rape.
The most common outcome recorded in official figures for a rape complaint, at 41 per cent, is “evidential difficulties (victim does not support action)”.
A coalition of women’s groups were refused permission for a legal challenge accusing the CPS of changing their approach to rape cases earlier this year, which the prosecution service denied.
While police have accused the CPS of “raising the bar” for evidence required to take cases forward following a disclosure scandal in 2018, prosecutors have blamed the police for referring fewer crimes to them.
On Thursday, the CPS unveiled a five-year blueprint named RASSO 2025 to “understand and reduce the gap between reported cases of sexual violence and those which come to court”.
Max Hill QC, the director of public prosecutions, said: “It is clear that more needs to be done both to encourage victims to come forward with confidence, and to support them through the criminal justice process.
“Progress on this is vital and achievable with a long-term and concerted effort and investment from all parts of the criminal justice system.”
He said the CPS would work with the police to “build strong cases” and speed up the process, adding: “Our commitment is that all casework decisions are taken fairly, impartially and with integrity, and help to secure justice for victims, witnesses, defendants and the public.”
A joint action plan has been produced and specialist rape and serious sexual offences (RASSO) units are being bolstered.
The CPS said it wanted to improve communication with complainants, balance the right to fair trial with privacy, and allow more victims to pre-record evidence to avoid traumatic experiences in court.
Sarah Green, director of the End Violence Against Women Coalition, said the chasm between police reports and convictions had caused the “effective decriminalisation of rape”.
“This range of measures is likely to feel too little, too late for the thousands of rape survivors failed by the criminal justice system in recent years,” she added.
“The government’s end-to-end rape review is ongoing, so while this pre-emptive strategy is unlikely to meaningfully address all that needs to be done, it is nonetheless a welcome step in the right direction.”