Confidential counselling and medical information from sexual assault victims continues to be used to undermine their credibility in court, despite laws protecting their confidentiality, a Queensland community legal service says.
Women's Legal Service Queensland (WLSQ) lawyer Julie Sarkozi said there was a lack of legal consistency and understanding around legislative protections, to keep victims' counselling sessions and medical records protected and private from criminal defence teams.
This can include information from therapy with doctors, community mental health services and school guidance counsellors.
The issue is one of several raised in the WLSQ submission to Queensland's Women Safety and Justice Taskforce, for legislative reform to better protect sexual assault victims.
The taskforce is conducting a wide range review of the experience of women as sexual assault victims and as defendants across the criminal justice system.
"The inconsistent application of the law, and ignorance about what constitutes counselling continues to allow criminal defence teams to use highly personal information for cross-examination to make the victim look like a crazy, vindictive liar,'' said Ms Sarkozi who is WLSQ's Practice Director and Law Reform and Education Counselling Notes protect lawyer.
She said since 2017, the government funded service has represented 495 sexual assault victims in court to stop criminal defence teams access confidential records, with varying success.
One of the keys to legislative reform for sexual assault victims and survivors is providing them with government-funded legal representation from the time they report the crime, Ms Sarkozi said.
While police are doing their job collecting evidence to build a case, victims unwittingly give permission for their records to be accessed to assist the investigation, she said.
Also under Queensland disclosure laws, prosecutors have an ongoing duty to provide all information to the defence even if it is favourable to the accused.
The information can be used during cross-examination by defence counsel who are best ensuring their client has a fair trial, she said.
"Inadvertent disclosure is still happening, because [records] are still being handed over,'' she said.
The WLSQ and other victim advocate organisations have suggested banning defence teams accessing victims' records obtained from any service in the hospital and education department.
Current legislation does not stop defence from applying for the records and once it reaches court a judge may admit the information because of its "substantial probative value" as evidence, she said.
"If a judge looks at [the counselling records] and goes, 'well here she says he touched my breast but the statement she gave to police was he touched my skirt, that's inconsistent… I'm going to let that in''' she said.
'The victim is fair game'
Queensland woman "Alison" — who cannot be identified under Queensland laws protecting sexual assault victims — unknowingly gave consent to confidential counselling and medical information, later used against her on the witness stand.
Alison said she now regrets reporting being raped by her ex-boyfriend in 2017, and has stopped receiving counselling.
She said the two police officers who took her complaint were "phenomenal", as was her victim liaison support officer, however, she felt isolated and vulnerable while giving evidence.
"Often the way victims respond to trauma is used against the victims by the defence to create questions of credibility and integrity,'' said Alison, who is studying to counsel victims of crime.
"In my personal experience, Julie and I had to fight tooth and nail to protect my counselling notes. We spent hours upon hours on the phone having to go over all the intimate details that I discussed with health professionals, re-visit the trauma and we still weren't met with equal or fair justice."
While waiting for trial, Alison was raped again
While waiting for the trial, Alison was allegedly raped by a man posing as a victim of crime, but said she did not want to make a formal complaint because she was already going through the court system.
After speaking with a friend, she provided a police statement and results of her forensic medical examination to a Queensland Police program called Alternate Reporting Option (ARO).
"The evidence would be kept on file so that if any other woman came forward, she could use my statement as evidence in her trial. In addition, I was told that this complaint would absolutely not be not handed over to the defence (in Alison's rape trial),'' she said.
Alison said shortly before she testified at the trial of her ex-partner, his defence team had obtained the details of the ARO alleged, as prosecutions were legally required to disclose the information.
The jury found her ex-boyfriend not guilty of rape.
Alison said prior to the rape trial, the prosecution team told her they represented the state not her, and she was a "special witness of crime".
"I did not witness my rape, I experienced it,'' she said.
"The changes that I would like to see in our criminal justice system are simple: equality. Legal representation for both defence and victim.
"If the victim has their entire history on display, so should the [accused], especially when it comes to criminal history. If the victim has to be cross-examined, so does the [accused]. Give the jury an equal representation of both sides so they establish a more informed based verdict."
