Like anyone seeking health care, victim-survivors have a reasonable expectation that what they say to a counsellor – which might include a psychologist, a rape crisis worker or social worker – will remain private.
Yet, counselling records including notes, transcripts and even audio and video files are ending up in the hands of the alleged perpetrators’ legal teams. These records, including calls to 1800 RESPECT, might even relate to counselling the victim-survivor received before the rape.
Journalist Nina Funnell has launched a campaign calling for law reform to protect victim-survivors’ counselling records from subpoena in rape trials. The campaign has garnered thousands of signatures and widespread community support.
Each state and territory in Australia has laws that are meant to protect counselling records from being used in court. These protections are often referred to as a sexual assault communications privilege. The privilege operates differently across Australia.
But police, prosecution or defence legal teams may subpoena notes about the content of counselling sessions to be used as evidence in a case. A subpoena is a court order that legally requires someone to give documents to the court.
Counselling services can resist subpoenas in some circumstances. And most specialist sexual assault services do, as policy. Others, such as 1800 RESPECT, fail to fight subpoenas.
We urgently need stronger law reform across Australia to protect victim-survivors’ counselling records from being subpoenaed. As the Australian Law Reform Commission recently stated, an absolute protection:
prioritises the public interest in ensuring that people who have experienced sexual violence seek therapeutic treatment and are not deterred from reporting.
If you are calling a sexual assault crisis hotline, you can request that your call not be recorded. Or, you can call a service that does not record calls, such as 1800 FULL STOP.
You can be anonymous. You do not have to give any identifying details, including your name. You can use a fake name if you prefer. You can turn caller-ID off, too.
If police ask you to sign over consent to having your records accessed, you can say no. Before you agree, you should seek your own independent legal advice, including through legal aid, women’s legal services or a sexual assault service in your area.
Victim-survivors deserve to access confidential counselling and support in the aftermath of sexual violence. Governments owe survivors – and the community – a safe therapeutic service system.
Source: Rapists’ lawyers are using their victim-survivors’ counselling notes in court. This needs to stop