An outright ban on using counselling notes in rape trials would be unconstitutional, according to legal advice given to the Dublin Rape Crisis Centre.
However, the frontline sexual violence service said it now wants counselling notes to be classed as privileged documents under a new law, which would create a legal presumption against the disclosure of such personal records.
Survivors of sexual violence and advocacy groups which support them have long been campaigning against the use of a victim’s counselling records in rape trials. Survivors who had their personal counselling records read by their alleged abuser have described how traumatising the experience was. Therapists have reported that victims are reluctant to seek counselling after suffering sexual violence over fears their records could be used against them in court.
Minister for Justice Jim O’Callaghan has said the law needs to be reformed, because there was an “unacceptable” norm where “counselling notes are being provided virtually on an ad hoc basis to the defence in criminal proceedings”.
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Mr O’Callaghan told the Dáil last week that he had been advised by the Attorney General that an outright ban on the use of counselling notes in rape trials was unconstitutional. Instead, the Minister has proposed a new law which would require a disclosure hearing to take place before counselling records are allowed into evidence during a sexual assault trial. At the moment, victims can waive the right to such a hearing. There are concerns that victims are waiving their right because they fear objecting to the use of their notes will affect their case. Mr O’Callaghan said the new system may “regrettably” cause delays to cases, “but it is an essential change in order to ensure that the system that exists at present does not continue”.
Mr O’Callaghan told the Dáil that other domestic violence groups had also sought legal advice, which “confirmed to them that a blanket ban would be unconstitutional”.
Dublin Rape Crisis Centre chief executive Rachel Morrogh said her organisation sought legal advice from a senior counsel on the issue of counselling notes.
“We were advised that any law drafted to prohibit the disclosure of notes outright would fall foul of the protections guaranteed by article 38.1 of the Constitution and thus be deemed unconstitutional, even when balanced against the rights of victims,” Ms Morrogh said. Article 38.1 guarantees the right to a fair trial.
“This was bitterly disappointing to us after years of advocacy, but further legal advice outlined the potential for the creation of a new statutory privilege that would legislate for a presumption against the disclosure of these private and confidential records.
“Therefore, we have been advocating for new legislation that classifies counselling notes as privileged documents.”
Ms Morrogh pointed to another article of the Constitution, which guarantees the protection of “the person.” She said the Supreme Court had found this requires the State to protect “not simply the integrity of the human body, but also the integrity of the human mind and personality”.
She said the rape crisis centre has asked Mr O’Callaghan to “revisit” the approach he is taking to the change in the law on counselling notes, to make the personal records a privileged document that would limit their use in trials entirely.
