Personal records and their place in court during sexual offence trials – make your views heard

A year ago, the BPS raised its serious concerns around then-new Crown Prosecution Service guidance on the provision of pre-trial therapy in cases of rape and serious sexual assault.

In a letter, signed by a coalition of professional bodies in the health sector, the BPS warned of the potentially 'devastating impact' of the new guidance which could see victim's notes being made public and possibly used against them in court.

Now the issue is back on the agenda as the Law Commission is asking BPS members to share their views on a Consultation Paper which sets out a series of provisional proposals and questions directed at reforming the trial process for sexual offences. There is also a Summary Consultation Paper with a condensed list of consultation questions.

Last year's CPS guidance should have been a positive step, clarifying that all people who have been victims of such crimes have a right to pre-trial therapy and the right to choose what is appropriate for them and when. In the past, therapy whilst waiting for trial to take place was often discouraged and therapists were warned not to talk about the crime in case it could be argued that they were impacting on what the person might say in court.

The guidance also helpfully addresses many of the myths, stereotypes and misconceptions that still influence attitudes to people who suffer such crimes

However, these positives are seriously undermined by a change to the previous guidance which stated that therapy notes could only be disclosed to the prosecution if they would undermine the prosecution or support the defence.

The guidance states that therapy notes can be disclosed if a case is made that they would be 'relevant'. There is no definition of what could be considered relevant and, having read the additional notes for therapists, I am no clearer about what grounds would be deemed relevant; potentially anything in pre-trial therapy could fall into this category.

As a therapist it is essential that you discuss issues of confidentiality, and the limits on it, before starting the therapeutic work. In my opinion, the guidance notes as they stand would not enable a therapist to understand those limits themselves or to be able to provide clarity for their client on what could constitute relevance.

Rape and serious sexual assaults are traumatic experiences and victims often experience serious psychological consequences which not only cause anguish and distress but which also impact on other areas of their life: on their relationships with family and friends, on their ability to work and study, on their ability to take part in their usual life activities.

While not everyone needs formal therapeutic help, many do, and the longer the wait, the more entrenched the difficulties become and the greater the impact on their lives. Most cases are now taking between two to three years to come to court, and waiting for the case to finish before therapy prolongs the harm.

Therapeutic work with people who have suffered sexual assault is complex and sensitive and, as with all therapy, an absolute cornerstone is the establishment of a trusting therapeutic relationship. However, it may be harder for victims of such crimes to feel they can trust after what they have experienced.

Confidentiality is a key element of trust in therapy and this new guidance will make that much harder to develop that trust as people will fear that their personal information could be shared and potentially used against them.

As a result:

• Some people will decide not to risk entering therapy pre-trail and continue to suffer long-term ill effects.
• Some will try to engage in therapy but it will be less effective and possibly be ineffective as the person is not able to trust and talk about the areas they feel need to be kept private.
• Some will feel they need to prioritise their own wellbeing and undertake therapy and allow the case to be dropped. Already 50-60 per cent of police investigations are closed due to the victim deciding not to support further action and research shows that this is often because they do not feel supported to continue through the process.

These impacts are incredibly worrying and damaging. Therefore the consultation from the Law Commission is an opportunity to make sure our voice as psychologists is heard on this vitally important issue.

I would encourage everyone to take the time to share their expertise and views with the BPS to help shape the society's response and push this issue back into the spotlight. 

NB - I have used the term "victims' rather than "survivors" in this piece as that is the wording used in the CPS Guidance.

Find out more and help shape the BPS's response