Survivors didn't remember consenting to use of counselling notes in court, says survey

The online survey by Beyond Surviving, a group founded by rape survivor Ciara Mangan, aims to give survivors the opportunity to air their views on the use of counselling notes in court

Ciara Mangan: 'Many were unaware that their private therapeutic records could be requested and used by the defence.' File picture: Brian McEvoy Photography

Many respondents to a survey by a survivors-led charity said they didn't remember giving informed consent for their counselling notes to be accessed or used in court. 

The online survey, launched by Beyond Surviving — a group founded by rape survivor Ciara Mangan — has received more than 240 responses, including over 100 in its first 24 hours. 

It comes as legislation on the use of counselling notes is due to come before the Oireachtas justice committee. The survey will close on Friday, with the findings to be shared with politicians as legislation goes through the Dáil.

Earlier this month, the Cabinet approved legislation which will permit the use of counselling notes only where there is a risk of an unfair trial.

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 that “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”.

Ms Mangan said: “Our early findings from the survey include that a high number of respondents report that they 'don't know/can't remember' giving informed consent for their counselling notes to be accessed or used in court. 

“Many were unaware that their private therapeutic records could be requested and used by the defence. 

A significant proportion say that, had they known their notes might be used in this way, they would have engaged differently in counselling.

“A number of survivors note that their intentions/assumptions in handing over their notes, believing it would strengthen their case/prove their trauma, without realising, until it was too late, that giving consent also meant the defence could use them against them.” 

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

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Sarah Grace, who is another survivor and a board member of Beyond Surviving, said: “We are now so close to changing the law. The Government has approved the amendment of a bill, now at committee stage, to introduce a presumption of non-disclosure in respect of these counselling records. 

"But reform demands precision, as it must reflect the full diversity of survivors’ lived experiences. And as the bill’s predecessor has shown, poor drafting risks catastrophic unintended consequences.” 

The survey can be accessed here.