Rape crisis groups have welcomed proposed laws aimed at protecting victims from having to disclose therapy notes in trials, or from being cross-examined by their attacker.
Under provisions in the Sexual Offences Bill 2014, the counselling and therapy notes of victims will not be revealed to defendants, unless a judge believes, after holding a pre-trial hearing, that they are necessary to ensure a fair trial.
In addition, the legislation will prohibit the accused from cross-examining the complainant — the alleged victim of sexual abuse — in a trial.
Ellen O’Malley-Dunlop of the Dublin Rape Crisis Centre said she was very pleased at the provisions, saying they had campaigned for changes in the law for many years.
“We feel psychotherapy and counselling notes have no place in the criminal justice system because they are about the internal world of a person, they are not facts necessarily,” she said.
“But, at the moment, if a victim says ‘No, I don’t want my notes to be disclosed’, then the defendant can say ‘there is information in those notes and the fact they are not going to be made available I’m not going to get a fair trial’ and, of course, a person is entitled to a fair trial — it trumps everything in the criminal justice system and a case could fall on that.”
She welcomed the measures brought forward by Justice Minister Frances Fitzgerald: “It will be up to a judge to decide whether these notes are relevant or not and they won’t be made available to the defence, they will be made via the prosecution and relevance is really important.”
Under the provision, the defendant must state the reasons behind their application to access the records. At a pre-trial hearing, the judge will consider a range of factors, including the evidence value of the records, the prejudice to the complaint’s right to privacy, the public interest in encouraging the reporting of sexual offences, and encouraging victims to seek counselling.
The judge will only grant access if the defendant has established their relevance and where the production of the record is necessary in the interests of justice.
Ms O’Malley-Dunlop, speaking on Morning Ireland, said the proposed ban on defendants cross-examining complainants was also very important.
“That’s a very welcome proposal and something we have been working on for many years,” she said. “At the moment, a defendant can defend themselves or, if they have a legal team, can sack the legal team and cross-examine the victim.”
Under the bill, a judge can decide to appoint a legal representative to conduct a cross-examination in situations where the defendants does not have legal representation of his or her own.
The jury will receive a warning in such situations not to draw any inferences from the fact that the accused has been prevented from cross-examining the witness in person.
Ms O’Malley-Dunlop also welcomed the fact that female perpetrators of incest are being brought in line with male offenders.
Freephone helpline: 1800 77 88 88
© Irish Examiner Ltd. All rights reserved