New guidance designed to give rape victims confidence to get therapy before their trial “makes things worse” for survivors and lessened their protections, according to the victims’ commissioner, Vera Baird.
The guidance issued by the Crown Prosecution Service (CPS) aims to “alleviate victim concerns that accessing counselling could damage the prosecution case,” but Baird echoed concerns from campaign groups that they, in fact, reduce protections and called for therapy notes to be excluded from criminal trials, as they are in Australia.
Additionally the attorney general, Suella Braverman, has released guidelines designed to stop intrusive demands for rape victims’ private information during criminal investigations, with the aim of increasing the proportion of rape and sexual assault convictions, which have fallen to historic lows since 2016.
The new government guidelines are designed to prevent mass data collection from rape victims, which is being replaced with a new system that requires a written justification for each request for personal data such as mobile phones, social media conversations and medical and social services records.
The CPS has stated that it will not discourage rape or other victims – who are facing record waiting times to get to court – from seeking psychological therapy before a trial starts.
It said the material should only be sought when relevant, with police and prosecutors asked to give “very serious consideration as to whether requesting therapy notes represents a reasonable line of inquiry”.
The new guidance states: “Any requests for therapy notes must be specific and only sought when necessary. Any unfocused requests to browse patients’ files should not be made. These notes will only be shared with the defence if they contain material capable of undermining the prosecution case or assisting the suspect.”
But Baird and campaigners said the new CPS guidance used looser language than previous guidelines, which required prosecutors to request therapy notes only if there was evidence to suggest they would undermine a case. The new guidance states that they can be sought if deemed “relevant”.
“The pre-trial therapy guidance is worse than the draft the CPS produced a year ago and does nothing to limit the accessibility of notes,” Baird said.
“These are fine words, but the CPS has not looked at this issue with sufficient rigour from the victims’ perspective to make sure that the culture change will go through. In fact, they have fallen back on their conservative approach and used a wider test, which will only make things worse. If we want to protect victims from this intrusion, we need legislation in the victims’ bill.”
Jayne Butler, chief executive of Rape Crisis England and Wales, said she was incredibly disappointed the CPS had not made counselling and therapy notes confidential for rape survivors.
In a joint condemnation of the new guidance, the End Violence Against Women coalition, Rape Crisis and the Centre for Women’s Justice said: “Once a victim is aware that any disclosure they make in counselling could make its way into the criminal justice system, it is clear this will discourage them from having therapy or talking freely with a therapist.”
A spokesperson for the attorney general’s office said there would be “rare but genuinely necessary cases where material is required in the interests of justice”, but rigorous requirements would “stop invasive and disproportionate requests for victims’ private information”.
Alex Chalk, the solicitor general, said the new guidance on disclosure would “bring about positive change, balancing victims’ privacy right with the unassailable right to fair trial”.
A CPS spokesperson said the new guidance clarified that requests for data must be specific and necessary, adding that notes would only be shared with the defence if capable of undermining the prosecution case or assisting the suspect. “Too few victims are seeing justice done, we must rebuild confidence, so more victims are able to see the criminal justice process through,” they said.
In the UK, Rape Crisis offers support for rape and sexual abuse on 0808 802 9999 in England and Wales, 0808 801 0302 in Scotland, or 0800 0246 991 in Northern Ireland. In the US, Rainn offers support on 800-656-4673. In Australia, support is available at 1800Respect (1800 737 732). Other international helplines can be found at ibiblio.org/rcip/internl.html
