Counselling notes legislation ‘continues violation of victims’ rights’, survivors warn

Survivors and advocates warn new legislation still deters victims from seeking counselling and falls short of international human rights standards

Hazel Behan: 'Restrictions are not a ban and still leave the door open for the defence, and for the person the victim believes harmed them, to access deeply private counselling records.' File photo: Leah Farrell/© RollingNews.ie

Sex assault victims have hit out at the Government’s failure to fully ban the use of counselling notes in trials under new legislation, saying Ireland will still be in breach of international human rights obligations.

Lisa Murray, a survivor and a researcher at the Irish Centre for Human Rights, University of Galway, has appeared before the United Nations Committee on the Elimination of all forms of Discrimination Against Women (CEDAW).

She said the Government's decision not to fully ban the use of counselling notes in sexual assault trials is a wilful continuation of the violation of victims' rights and it remains at odds with CEDAW’s recommendations.

The Government's legislation, published in recent weeks, includes restricting the use of counselling notes in sexual offence trials, but stops short of an outright ban. When the legislation comes into effect, disclosure hearings will be held during which the relevance of the use of counselling notes in individual trials will be decided by a judge.

Another survivor, Hazel Behan, said the legislation could still mean that victims are reluctant to seek counselling for their trauma.

Ms Behan, who alleged she was raped in 2004 by the chief suspect in the Madeleine McCann case, Christian Bruckner, told the Irish Examiner: “I, alongside many others, have campaigned tirelessly for an outright ban on the use of counselling notes at trial. Restrictions are not a ban and still leave the door open for the defence, and for the person the victim believes harmed them, to access deeply private counselling records. 

That possibility alone is enough to deter many victims from seeking the mental health care and the support they desperately need and deserve. 

She added: “I struggle to see how third-party notes taken by a counsellor, who was not present at the scene of the crime, can be viewed as anything more than hearsay. These notes reflect a counsellor’s perception of private conversations in what should be a safe space for healing."

Rape Crisis Network Ireland (RCNI) director Clíona Saidléar said that asking a judge to make a decision on the use of counselling notes is not a “tidy” way of dealing with the issue.

“This requires a bigger conversation as we have reached the edge of how much we can tinker with the adversarial system at the moment to vindicate the rights and dignity of survivors," she said.

What's your view on this issue?

You can tell us here

In reply to a parliamentary question on the issue, minister for justice Jim O’Callaghan said the Attorney General has advised that a blanket ban "risks infringing the constitutional right to a fair trial and would likely lead to legal challenges, with convictions potentially being quashed as a result”.

However, Mr O’Callaghan said the operation of the legislation will be kept under review.

“Additional changes to the current legislative framework around disclosure of counselling notes are also under consideration within my department and will be brought forward at the earliest possible opportunity,” he said.