A rape victim’s record of recovery could be used to discredit them under new CPS guidance - Jayne Butler

If you’re a victim of rape or sexual abuse, you might report that to the police and reasonably expect some kind of justice. But seeking criminal justice is often an extremely difficult and distressing experience.

From facing disbelief during the reporting process, to reliving a hugely traumatic experience numerous times, to being told that there isn’t sufficient evidence to take a case to court: it’s no secret that victims and survivors are continuously let down by the system.

We just need to look to the low prosecution rate for rape cases (just 1.3% of those reported are actually charged) to see that there is a fundamental flaw in the criminal justice process.

One part of this process that is so difficult for victims and survivors, and one which is rarely talked about, is the issue of pre-trial therapy. When investigating cases related to sexual violence, police are allowed to ask for and obtain records relating to a victim and survivors’ counselling or therapy. If deemed relevant, counselling or therapy notes can be passed over to investigating officers.

A victim’s record of recovery could be used against them

These records, detailing a woman’s most personal thoughts and feelings around her rape or sexual abuse, can be scrutinised by the police or even worse, can be viewed by her rapist and his legal team if they are considered relevant to her credibility. Let that sink in for a moment. A man who commits rape could have access to his victim’s record of recovery, and these records could be used to try to discredit them.

Furthermore, requests can be made for historic counselling or therapy records, ones which pre-date the rape itself. A space which is meant to be safe, confidential and healing, is subject to outside examination.

The result is that victims and survivors are advised to wait to seek therapy or counselling until after the criminal justice process has taken place, or to avoid talking about details of their assault in their sessions. Limiting a victim and survivor’s support in this way is extremely damaging, can prolong their trauma and strips them of the right to receive adequate specialist support.

This is an appalling situation for a survivor to find themselves in. They are left to choose between seeking justice and seeking support, when they should absolutely have a right to both. Indeed, for many people, both of these are part of the journey to recovery.

The Crown Prosecution service, after consultation with the public, have recently released guidance on pre-trial therapy whereby they have stated that speculative requests for counselling notes are not permitted but that when “deemed relevant” notes can be obtained. There are many potential problems with this as the notion of “relevancy” is ambiguous and easily open to interpretation.

‘Why do we keep asking survivors to pay again and again?’

In our joint report ‘The Decriminalisation of Rape’ we have recommended that counselling and therapy notes are “non-disclosable”, which would afford counsellors the same confidentiality privileges as found in the legal profession. We know that counselling and therapy are based around feelings and not facts, therefore, we believe they hold no relevance in a criminal case.

Following the recent guidance, we want to reiterate the need for victims and survivors to be able to access therapy before, during and after a trial, without having to censor what they say to their counsellor or therapist.

Rape is a devastating crime, which has a huge and long-lasting impact on victims and survivors. Why do we keep asking survivors to pay again and again for something that wasn’t their fault? With so many barriers to justice, the very least the CPS can do is ensure those brave enough to take a case to trial are able to do so with specialised support in place.

Jayne Butler is chief executive officer of Rape Crisis England & Wales