Therapy notes from rape victims could be routinely sought in investigations, deterring people from engaging with the criminal justice system, one of the Crown Prosecution Service’s (CPS) own prosecutors has claimed.
Talk to I On condition of anonymity, the prosecutor said the CPS was “dishonest” about the actual effect of changing its guidelines on pre-trial therapy.
Pre-trial therapy is a limited form of counseling provided to survivors that requires them to attend sessions but agree not to talk about the facts directly related to their case.
It is possible that notes of these therapy sessions will then be requested by the police, before falling into the hands of the defense, who can use them to try to diminish the credibility of the victim. This leaves victims with a decision between prioritizing their mental health when speaking out about their trauma and risking their own information being used against them.
Cases are frequently dropped if victims do not agree to have their information shared with investigators, warned Dame Vera Baird, who recently resigned as Victims Commissioner for England and Wales.
In May, the CPS updated its guidelines to acknowledge concerns that access to counseling could harm the prosecution’s case, but said victims of rape and other crimes should not delay prosecution. therapy.
Previously, investigators needed a specific reason to believe the content of therapy notes could harm the case.
But the new guidelines focus on relevance. It reads: “Access to therapy notes may only be requested in an individual case where it is a reasonable line of inquiry that may reveal material relevant to the investigation or the issues likely at trial.”
The prosecutor said the new legal test on requesting therapy notes lowers the threshold for access, meaning investigators will be encouraged to request them routinely because any reference to the case can be considered relevant.
“The change that has been made has significantly lowered the legal threshold for access to the notes, so access requests will now be routinely made in rape and sexual offenses cases, which will have the effect of seriously invading the privacy of victims and deterring them from engaging with the criminal justice system,” the prosecutor said.
The complaint is concerning given the low conviction rate for rape offences. Just 1.3% of cases in England and Wales resulted in a charge or summons in the year to September 2021.
A record 70,600 rapes were recorded in the year to June, up 20% from 59,046 for the year ending March 2020. The Office for National Statistics said the The increase could be due to more reports and a potential increase in the number of victims.
“Trauma-focused therapy involves a victim discussing the cause of their trauma and the subject of [or] future criminal proceedings with their therapist,” the prosecutor said.
“In a typical rape case, where the victim’s factual account is challenged by the accused, a court will always find that what a victim has already said about an incident in therapy and how well that fits with what a victim said to the police is a matter that is “relevant to the case” and access to the notes will therefore be systematically sought.”
“The messages from the CPS regarding their commitment to protecting the privacy of victims and in particular that the legal threshold for access to notes as set out in the new guidelines will serve to restrict requests for therapy notes are disingenuous.
“The legal change they have introduced is a clear invasion of victims’ privacy and anyone with experience in prosecuting these cases understands that.”
The prosecutor said fears about the use of private information remained a barrier for victims in the criminal justice system.
“It is understandable that victims are reluctant to press a case when they know that the record of what they are saying is likely to end up in the hands of the police. [or] prosecutors and, in the worst case, shared with the defense and referenced at a future trial.
“Victims seek reassurance that their private disclosures will be protected, but the legal test outlined in the new CPS guidelines simply cannot provide that assurance and it is right for victims to know the truth when taking their decisions regarding therapy and their participation in the criminal justice system”.
Activists including Rape Crisis are calling for the therapy notes to be classified as confidential in police investigations.
The CPS said: ‘We want survivors of sexual offenses to seek the support they need without worrying about the impact on legal proceedings. Their well-being is paramount and we do not underestimate the anxiety that navigating the criminal justice system can cause.
“Our pre-trial counseling follows the law set out in the Attorney General’s Disclosure Guidelines. It specifies that any request for therapeutic notes must be reasonable and proportionate to avoid any unnecessary intrusion.
“The balance between a victim’s right to privacy and a suspect’s right to a fair trial is a sensitive issue. Extensive training has been developed for prosecutors, writing clear therapy notes should only be requested when relevant, and their use is clearly explained from the outset.
When I approached the Attorney General’s office for comment, he referenced a previously released statement: “The Attorney General’s Disclosure Guidelines have significantly improved the standards for access to therapy records. We have raised this standard to ensure thorough and fair investigations are conducted. The obligation to pursue all reasonable avenues of investigation and to review relevant information are those set out in law and the revised disclosure guidelines follow this legal standard.
He added: “The CPS guidelines on pre-trial therapy make it clear that victims should get the help they need and neither investigators nor prosecutors will stand in the way.
“Pre-trial therapy notes will only be accessible in the rare circumstances where they are absolutely necessary for a reasonable investigation. This provides important protections to victims while maintaining a fair trial. The health and well-being of the victims is absolutely at the heart of this approach.