Calls for new law to protect privacy of sex abuse victims

Measures to spare victims in sex abuse cases the added pain of having deeply personal details disclosed to their abusers have been recommended by the Law Reform Commission.

The commission has said that pre-trial hearings should take place between the prosecution and defence to decide what information is absolutely necessary to share, for fear that full disclosure to an accused person, and potentially the public as a consequence, could cause further harm to the victim.

Concerns have been raised, particularly in sexual offence cases and especially those involving children, where the rules on full disclosure mean sensitive therapeutic and counselling records may be divulged.

The commission said it had considered the question of “whether disclosure of these records is actually relevant to a trial and whether disclosure may adversely affect a child’s recovery”.

In a report published today, the commission proposes new laws be drawn up to better define the prosecution’s duty of disclosure in all categories of criminal cases and set out more clearly how different types of evidence should be categorised for purposes of selecting what needs to be shared.

Where there is a dispute over what material is to be disclosed, it is envisaged the court would step in to resolve matters. The commission says this should happen as early as possible in a case, ideally by use of a pre-trial hearing process.

Within such hearings, all sides would have to balance the privacy needs of the victim against the rights of the accused to a fair trial while safeguarding the public interest in open and transparent court proceedings.

Ray Byrne, director of research at the commission, stressed all cases should begin on the premise that all relevant material will be disclosed but he said clearer guidance was needed on how to establish relevancy, particularly in relation to sexual offence cases.

“What we have been hearing from talking to counsellors and therapists is that there is a bit of a cloud hanging over the whole counselling process,” he said.

“Counselling is supposed to be about helping a person recover from the trauma but if there is this question hanging over whether therapeutic notes can be disclosed, that’s something that can have a bad impact on the recovery process.

“What the commission is trying to do is draw as clear distinction as possible between what material is entirely personal and what is forensically relevant to the trial.”

Informal pre-trial hearings do sometimes take place in criminal cases but there is no agreed structure for them and they are rarely comprehensive, meaning trials are often interrupted by the need to discuss issues in the absence of the jury.