In 1995, the veteran campaigner for the rights of sexual assault survivors was arrested and imprisoned after she refused to violate the privacy of a rape survivor by handing over the woman’s highly confidential counselling notes to the man charged with raping her.
Ms Lucas’ act of bravery as the manager of the Canberra Rape Crisis Centre sparked national protests, rallies and legal debates, which two years later culminated in the introduction of new shield laws to protect the counselling records of sexual assault complainants in NSW.
But three decades on, as accused individuals find evermore creative ways of circumventing those shield laws, news.com.au is pushing for bulletproof protections to stop alleged offenders getting their hands on the private records of their alleged victims.
Dr Rachael Burgin, executive director of Rape and Sexual Assault Research and Advocacy, said it’s not uncommon for accused individuals to subpoena the counselling notes, which private therapists hand over without realising they have the right to oppose.
A further concern with existing shield laws is that the protection is usually worded in such a way that the onus falls on the counsellor or counselling service to invoke the protection. Some services and providers may not know the protection exists (and may simply hand over the documents when subpoenaed), or they may not have the finances to engage a lawyer.
“These protections are no good if there is no lawyer to turn up on the day to enforce them,” said Dr Burgin, who is also a senior lecturer in Criminal Justice at Swinburne University of Technology.
“In counselling, people share their deepest fears, insecurities and sources of shame. It’s devastating to have that shared with anyone, let alone the person responsible for causing that harm.”
Counsellors may also hand over the notes under the misguided view that the notes will help prove the abuse. But as Dianne Lucas explains, this is rarely the case.
Dr Burgin said that ironically, the very things which might indicate a person has experienced trauma – such as nightmares, flashbacks or intrusive thoughts – can be used paradoxically on the stand to discredit the victim.
Dr Burgin said it’s alarming that while Ms Lucas was willing to go to jail to protect a survivor’s counselling notes, 1800 RESPECT simply handed them over, without contacting Ms Lane to seek her view or inform her of its intention to comply with the subpoena.
“If Australia’s largest, most well known, government-funded sexual assault counselling service cannot be trusted to properly protect client notes, why would we expect that private practitioners working out of home offices would be able to muster the resources to?” she said.
“The answer has to be tighter legislation.”