Coming forward as a rape survivor is scary. Only around 15% of people who have experienced sexual violence go to the police. And, when victims do report their assault, they’re subject to intense levels of scrutiny: phones can be looked through, medical records analysed, social service files access, and school reports read, in what has been called a ‘digital strip search’.
And now, a whistle-blower from the Crown Prosecution Service (CPS) has claimed that rape victims’ privacy can be undermined even further when their therapy notes from pre-trial counselling are handed to police and their perpetrator’s legal teams during investigations, iNews has reported.
In pre-trial therapy, survivors should be able to talk through their trauma and their ongoing criminal proceedings without judgement. But, obviously, knowing their therapy notes could be used against them by their perpetrator’s defence may put off victim’s from speaking freely—or engaging with the criminal justice system at all.
Essentially, victims seemingly have a choice – either bear the burden of your trauma alone or risk speaking to a mental health professional and risk losing credibility in court. Because, in the UK, we still doubt and blame victims. In 2021, only 1.3% of rape cases in England and Wales resulted in a charge or summons. Additionally, one third of people believe that women who flirt are partially responsible for being raped.
And if survivors don’t allow for their information to be shared with investigators, their cases may be dropped, Dame Vera Baird former Victims’ Commissioner for England and Wales warned iNews. ‘Victims and survivors are being coerced into consenting to use of their personal data with the threat that if they do not give access to it, it will negatively impact their case,’ Rape Crisis also previously told Grazia.
Under new CPS guidelines, access to therapy notes can only be requested if there’s a ‘reasonable line of inquiry’ that’s thought to be ‘relevant’ to the case. But the CPS whistle blower has warned that these new rules will actually encourage investigators to routinely request a victim’s therapy notes.
'We want survivors of sexual offences to seek the support they need without worrying about the impact on court proceedings. Their well-being is paramount, and we do not underestimate the anxiety navigating the criminal justice system can cause,' CPS claimed in a statement seen by Grazia responding to the allegations.
'Our pre-trial therapy guidance follows the law set out in the Attorney General’s guidelines on disclosure. It clarifies that any request for therapy notes must be reasonable and proportionate to avoid unnecessary intrusion.
'Balancing as victim’s right to privacy with a suspect’s right to a fair trial is a sensitive issue. Extensive training has been developed for prosecutors, making clear therapy notes should only be requested where relevant, and their use is clearly explained from the outset.'
But whether survivors therapy notes are routinely or rarely trawled through during investigations, it still begs the question: why are they being investigated at all? As usual, rape survivors are being treated as suspects rather than victims, when it’s the perpetrators’ lives who should be placed under the microscope.
‘Worryingly, this decision means that women and girls’ credibility will remain the focus of Rape and Serious Sexual Offence investigations and dissuade victims and survivors from accessing the vital support they need,’ said Rape Crisis. ‘With so many barriers to justice, the very least the CPS can do is ensure those who have found the strength to take a case to trial are able to do so with specialised support in place. It is their right.’
‘At a time when rape convictions are the lowest on record, we are at a loss to understand why the CPS have opted for a more punitive approach to victims,’ Rebecca Hitchen, Head of Policy and Campaigns at the End Violence Against Women Coalition (EVAW) added.
‘This is victim-blaming on an institutional level and a serious intrusion into victims’ rights to privacy,’ she continued. ‘Why are we punishing victims of sexual violence rather than perpetrators? Scrutinising therapy notes in courtroom strips them of their context and sends a message loud and clear that it is survivors who are on trial, rather than the men who raped them.’
A spokesperson for the AGO said: 'We are completely committed to supporting victims throughout the criminal justice process and prioritising their wellbeing, and we are keen to correct the misunderstanding around what the changes to the guidelines mean for victims.
'The revised Guidelines strengthen the protections against unnecessary access to third party material and place victim privacy at the front and centre of the process. Investigators and prosecutors will now need to detail, in writing, their justification for accessing third party material before seeking access to this material. This is an entirely new requirement that enables stronger accountability, focuses the minds of investigators and prosecutors on having clearly justified reasons and resists broad or generic requests for third party material.'