Sexual assault survivors opting for counselling rather than criminal trial over fear of notes disclosure in court

Ciara Mangan, founder of Beyond Surviving said the results of the survey had now been sent to the Department of Justice as legislation on the use of counselling notes is due to come before the Oireachtas justice committee. Picture: Brian McEvoy

Sex assault and rape survivors are choosing to attend counselling instead of pursuing a criminal prosecution against their attacker for fear their counselling notes will be used in a trial. 

A survey by charity Beyond Surviving was conducted among 301 survivors over the period from February 19 to 27.

It found that:

• 73% of those surveyed did not know their counselling notes could be used in criminal trials;

• 41% were discouraged from continuing counselling, knowing their notes could be used; 

• 35% were discouraged from going through the justice system; 

• 87% felt counselling was “extremely or very important to their recovery”. 

In the anonymous survey, one survivor wrote: “I chose not to pursue justice through the courts, and instead to continue with the life-saving therapy I was receiving. What an awful and impossible choice to make."

Another responded: “I am afraid to take my abuser to court in case my 10 years of counselling notes end up in court.” 

However, some respondents noted the use of their counselling notes in the criminal proceedings arising from their attacks were beneficial in the court.

One survivor wrote: “I WANTED my notes to be used. Yes, they’re personal but they show the impact that the rape had on me.” 

The survivor added: “The defence DIDN’T want my notes to be used because it undermined their case.” 

Beyond Surviving founder Ciara Mangan said the results of the survey had now been sent to the Department of Justice as legislation on the use of counselling notes is due to come before the Oireachtas justice committee.

Last month, the Cabinet approved the Criminal Law and Civil Law (Miscellaneous Provisions) Bill which will allow the use of counselling notes only where there is a risk of an unfair trial. It has now been referred to the justice committee.

If enacted, the decision on whether to allow the records as evidence will lie with judges after disclosure hearings to establish if the notes contain evidence relevant to the legal proceedings.

Justice minister Jim O’Callaghan has said the Attorney General has advised “a complete ban on the disclosure of counselling records in court would be incompatible with the Constitution, in particular the constitutional guarantee of a fair trial and the presumption of innocence, and would likely give rise to legal challenges that could jeopardise convictions”.

The survey aims to give survivors the opportunity to air their views on the proposed law and their experiences of the justice system.

A statement from Beyond Surviving said: “The results reflect the clear and consistent consensus among survivors that there is an urgent need for change to ensure a fairer criminal justice system. 

"However, the disclosure of counselling records is a complex and sensitive issue, and a ‘one size fits all’ legislative solution risks deepening harm to survivors by overlooking nuances, and failing to reflect the diversity of their lived experience.”

It said survivors must be free to access counselling and to pursue justice “without fear that doing so will expose them to re-traumatisation or compounded harms that undermine their healing and participation in the justice process”.

The group says it supports Dublin Rape Crisis Centre’s position that there is a need to “create a new statutory legal privilege over survivors’ counselling records within the criminal justice system as a proportionate and fair legal solution balancing the accused’s right to a fair trial with the victim’s right to privacy and dignity”.