A rape victim’s counselling notes would have a new “statutory privilege”, meaning they would not be shared in the majority of trials, under amendments being considered by the Government on Wednesday.
New amendments to an upcoming law reforming access to an alleged victim’s counselling notes by the defence in rape trials would also give courts the power to order third parties to disclose the material to the prosecution.
The Government is trying to balance the right to privacy of alleged rape victims against the constitutional right to a fair trial of those accused of sexual violence.
There have been concerns that the use of such notes in a rape trial has breached a victim’s right to privacy, retraumatised them and made some survivors avoid counselling.
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A number of sexual violence survivors and advocacy groups, as well as UN and European women’s committees, have urged an outright ban on the use of counselling notes in rape trials. It is understood, however, that Attorney General Rossa Fanning has told the Government that an outright ban would be legally challenged because of an accused’s constitutional right to a fair trial and access to evidence that could strengthen their defence or weaken the prosecution.
But advocacy groups such as the Dublin Rape Crisis Centre and Women’s Aid have questioned if third-hand notes from counselling sessions could ever reach the threshold of exculpatory evidence, that which benefits the accused.
Despite 2017 legislation designed to limit how often counselling notes are used in rape trials, the Government has conceded that the law has not worked as intended and notes continue to be used in trials.
Earlier this year, Minister for Justice Jim O’Callaghan published a Bill that would force a “disclosure hearing” to be held in every case, where a judge would have to decide if a victim’s counselling notes are relevant to a case. The Minister has said that though this will probably delay cases, it is necessary to prevent the “unacceptable” situation where counselling notes are being given to the defence on an ad hoc basis. Sexual violence advocacy groups, however, have complained that a judge would still be required to read a victim’s notes.
On Wednesday, O’Callaghan will bring further amendments to be added to that Bill at committee stage. The first will be a change to the Criminal Evidence Act, which would require a new “presumption of non-disclosure” for notes. That means a judge would order notes to be disclosed only in cases where the accused’s fair trial rights were deemed to be at risk. The Government believes this would create a “statutory privilege” for notes, effectively preventing their release in most cases.
Another amendment would extend the same statutory privilege that has been created for counselling notes to other records that a victim would presume are private, such as medical, social services, psychiatric and other therapeutic records. That followed a warning from the Director of Public Prosecutions that sensitive records held by the Health Service Executive and Tusla, the child and family agency, should also be protected.
The amendments, if agreed by the Government, would also remove an obligation on prosecutors to tell a defence team about “any” counselling records, regardless of whether or not they are relevant to the trial.
Though counselling notes have been traditionally handed over to the defence, the DPP sought and secured support from the Government for a new amendment that would give the courts the power to “order the production of a counselling record or applicable record to the prosecution”.
While it has always been the case that counselling notes of the accused can be sought as evidence where they have value, the new amendment would create a clear way for courts to order such evidence from third parties.
