Julie Zhou writes for Right Now:
When a victim of sexual assault sees a counsellor, the last thing she should have to worry about is whether records of her counselling session might be subpoenaed by her former partner and used in family law proceedings against her. Unfortunately, this is the reality many women face, as the Commonwealth remains the only jurisdiction in Australia without any form of protection for sexual assault counselling communications.
Sexual assault communications privilege restricts a litigant’s ability to subpoena communications between victims of sexual assault and their counsellors and use that information as evidence in Court. Currently, every Australian State and Territory has some form of sexual assault communications privilege.
While the design and degree of protection offered by this privilege is different in each State and Territory, all jurisdictions require that the person seeking to obtain and use sexual assault counselling records demonstrate to a court that:
- They have a legitimate forensic purpose for issuing the subpoena, and
- It is in the public interest to produce the sexual assault counselling records.
Given the high rates of sexual assault in domestic and intimate partner relationships, it is alarming that the Commonwealth is the only jurisdiction without any form of sexual assault communications privilege. As family law falls within the Commonwealth jurisdiction, victims of sexual assault in family law proceedings are left with no privilege over their counselling records.
Since as early as 2006, the Australian Law Reform Commission (ALRC) has recommended that a sexual assault communications privilege be introduced into the Evidence Act 1995 (Cth) to protect the counselling records of sexual assault victims in the Commonwealth jurisdiction. However, that recommendation has yet to be adopted.
With widespread support from the counselling sector and women’s groups, how long will it take for there to be meaningful protection in family law for the counselling records of sexual assault victims?