Campaigners warn guidance for rape trials could affect victims right to privacy

Guidance for rape trial prosecutors could “dramatically reduce protection and rights to privacy” for victims and turn them away from “vital” therapy, campaigners have warned.

The latest Crown Prosecution Service (CPS) advice would increase 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 & Wales and the Centre for Women’s Justice.

The CPS said the material should only be sought when relevant and the latest guidance “seeks to alleviate victim concerns that accessing counselling could damage the prosecution case”, adding they should not delay seeking therapy because of a criminal probe.

Data protection

Police and prosecutors are asked to give “very serious consideration as to whether requesting therapy notes represents a reasonable line of enquiry” in the case and they – as well as therapists – must comply with data protection laws, the CPS said, 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.

Changes to disclosure guidelines published by the Attorney General’s Office will “stop invasive and disproportionate requests for victims’ private information during criminal investigations”, it said, adding:

To ensure that third-party material such as therapy notes and medical records are only sought where appropriate, proportionate, and balanced with the right to privacy, we have imposed a requirement for investigators or prosecutors to justify in writing why the material is being accessed before it is obtained.

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.

Right to privacy

Groups claimed the terminology is too broad and “will drastically lower the bar – advising that therapy notes should be secured if it is thought they may be relevant to the case”.

The decision could “dramatically reduce protection and rights to privacy for survivors of rape and sexual violence”, the campaigners said, adding:

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.

Rebecca Hitchen, head of policy and campaigns at the EVAW, described the move as a “serious intrusion into victims’ rights to privacy”.

She said:

At a time when rape convictions are the lowest on record, we are at a loss to understand why the CPS have opted for a more punitive approach to victims.

Jayne Butler, chief executive of Rape Crisis England & Wales, said the organisation was “incredibly disappointed” the CPS had not made counselling and therapy notes “confidential for rape survivors”.

She added:

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 Crisis England and Wales tweeted:

Survivors of rape are being forced to choose between justice and therapy. Counselling should be a private and safe space for healing, but this is being compromised by requests from the police for a survivor’s counselling notes.
We call on the CPS to #KeepCounsellingConfidential pic.twitter.com/rbKaW5gDhV

— Rape Crisis England & Wales (@RapeCrisisEandW) May 26, 2022

Kate Ellis, solicitor at the Centre for Women’s Justice, raised concerns that the disclosure guidelines were:

too ambiguous and have the potential to confuse investigators as to the circumstances in which third party material requests are necessary.

The Centre for Women’s Justice also tweeted:

No rape survivor should have to choose between seeking justice and seeking therapy.

We call on the CPS to #KeepCounsellingConfidential#RapeJusticeNowhttps://t.co/N4EnGrYqnQ

— Centre for Women's Justice (@centreWJ) May 26, 2022

Featured image by Wikimedia Commons/Joe Gratz via CC0 1.0