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Subpoena survival guide

Confidential records in sexual assault cases

There are important legal, ethical and professional reasons to protect the private information of sexual assault victims in criminal proceedings.

Sexual violence

While accurate rates of sexual violence are hard to calculate, research indicates that it is an under-reported crime. The Australian Institute of Criminology (AIC) estimated that less than 30 per cent of sexual assaults and related offences are reported to the police.5 Sexual assault happens to women, men and children of all ages and socio-economic and cultural groups.

Sexual assault is more common against women than men, as was summarised by the Australian Law Reform Commission (ALRC) in its 2010 Report Family Violence, A National Legal Response:

“Sexual violence is strongly gendered with many more women reported as experiencing sexual violence than men. When women and children are sexually assaulted, the perpetrator is likely to be someone well known to them, a current or former partner or family member. While all women and children may be at risk of sexual violence, some are more vulnerable than others, including young women, Indigenous women, women from culturally and linguistically diverse backgrounds (CALD), and women with disabilities.”6

The Australian Law Reform Commission also summarised some of the barriers faced by women and child victims reporting sexual assault, noting in particular the complexities of intimate partner violence:

“Women and children may not report or disclose the sexual violence that they have experienced for a range of reasons, including because: they have not identified the act as sexual violence, let alone as a criminal offence; they do not consider the incident serious enough to warrant reporting; they are ashamed, fearful of the perpetrator, do not think that they will be believed, fear how they will be treated by the criminal justice system, and may consider that they can handle it themselves … The failure to recognise or identify an act as sexual violence, or more specifically as a sexual assault, may also be a ‘survival strategy’ for some women, particularly those who have been sexually assaulted by an intimate partner.”

Aboriginal Australians and people from culturally and linguistically diverse backgrounds (CALD) can face additional cultural and socioeconomic barriers to reporting sexual assault to police.

5 2007, the Australian Institute of Criminology (AIC).
6 www.alrc.gov.au/publications/24.23.

Assistance for sexual assault victims

Therapeutic assistance and support services that are be available to victims of sexual assault include:

  • counselling: psychiatrists, psychologists, psychotherapists, social workers, counsellors, drug and alcohol workers;
  • medical assistance: General Practitioners (GPs), specialists (including gynaecologists), paramedics, nurses;
  • refuge and other accommodation assistance; and
  • complementary health services: acupuncture, osteopathy, naturopathy, massage.

These types of services are all likely to collect highly sensitive, confidential records about victims, and are subject to special rules about how that information can be disclosed or used in criminal proceedings. This is discussed below and in the Sexual Assault Communications Privilege section.

Common impacts of sexual assault

Source: NSW Rape Crisis Centre

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Reasons for protecting victim records

A recent report by the Australian Institute of Criminology (AIC) found that the:

“key concerns influencing the decision whether or not to report an assault to the police are confidentiality, fear of the assault becoming public knowledge, and the possibility of a defence lawyer being able to access details of medical and sexual histories.”7

One woman quoted in the report said:

“What stopped me was what was going to come out in the trial; knowing that the defence lawyer had researched all about me, like my medical history and employment, and the offender would hear all about me.”8

7 ALRC Report, Family Violence – A National Framework, 2010.
8 ALRC, Report 102, Uniform Evidence Law, completed jointly by the ALRC and the NSWLRC, was tabled in the Commonwealth and Victorian parliaments and released in NSW on 8 February 2006.

Effects on the victims

If the confidentiality of notes is not protected, it can result in:

  • the victim feeling further violated and traumatised
  • damage to the relationship of trust between practitioner and client
  • fear and anger that the offender might find out where the victim lives or works, or other personal details
  • heightened sense of shame and guilt or disconnection from community
  • reduced willingness of victims to report sexual assault or proceed with the case.

These points can be useful when you are raising an objection to producing or using confidential material in court.

Lack of relevance of the material

Counsellors’ notes document a client’s emotional response. Other types of therapeutic records, such as those made by a GP or a naturopath, for example, may contain diagnoses and observations of physical ailments and/or a patient’s emotional responses.

Such records represent one person’s observations of and opinions about the feelings and emotions of another person. The client usually has no opportunity to review the notes to confirm if they are an accurate record. Some therapeutic or counselling records can be relevant to legal proceedings in some cases, but this is a matter for lawyers to assess, so all relevant objections should be raised with the lawyers.

Workers’ ethical position

Requiring counsellors, social workers and other allied health professionals to reveal confidential information places them in a difficult position ethically and can be perceived as a breach of trust. Their effectiveness as workers can be compromised if they feel that this aspect of their professional duty is in conflict with their professional responsibility to protect the best interests of the client.

Story icon Case study: Shanti

Shanti was sexually assaulted by a friend of her partner, who was charged by police. Even though she could give evidence from a remote witness room, Shanti decided to give evidence in the courtroom. When she arrived at court, she saw the accused looking through a bundle of papers. She saw that the documents were copies of her entire counselling file. Shanti was horrified to see that the accused was able to read all her personal information, and became very distressed. This happened at the worst possible time, because she was about to give evidence and be cross-examined about the sexual assault.

This is a scenario that the Sexual Assault Communications Privilege (SACP) should prevent.

Cultural issues

Responses to sexual assault can be influenced by cultural traditions, histories and intergenerational experiences, including negative experiences with police and other authorities. Disclosure of confidential information may damage a victim’s emotional and physical well-being and their connection to their community, or where they belong, in a range of ways. Breaches of confidentiality can undermine a victim’s or their family members’ willingness to report and assist in the prosecution of sexual assaults, or to gain access to healing services.

Counselling and therapeutic records in criminal cases

The way confidential records are used in court will depend on who wants to use that information:

Defence lawyers

Defence lawyers represent the accused. If the accused pleads not guilty, the defence lawyers will challenge the prosecution. Defence lawyers may seek the following information from counselling and therapeutic notes:

  • prior inconsistent statements;
  • background information about the victim;
  • physical descriptions of the accused;
  • the time of the alleged sexual assault;
  • anything that suggests the victim consented;
  • indications that the victim has a motive to lie;
  • the victim’s state of mind before and after the alleged assault and at the time of reporting;
  • suggestions that the counsellor may have put ideas into the victim’s head or coached the victim to present a particular story;
  • anything that may challenge the credibility of the victim or that may suggest that the victim’s complaint is unreliable (for example Drug and Alcohol and Mental Health and some medical material).

Prosecutors

Prosecutors represent the government and the community. Their job is to prosecute alleged crimes. A prosecutor is not the victim’s personal lawyer and is not necessarily on the side of the victim. Prosecutors usually request counselling, health or other therapeutic records as evidence to support the case against the accused. However, in some cases they may also be testing the victim’s credibility.

TIP / Victims generally want to assist the prosecution, but they, and you, can object to producing records whether subpoenas come from police prosecutors or the defence.

Police and prosecutor duties of disclosure

In general, both the Office of the Director of Public Prosecutions (ODPP) and the police have a duty to hand over all relevant evidence, including a list of proposed witnesses, to the defence. They must disclose it all, even if it is likely to harm their case and help the defence.

TIP / Remember, the prosecution’s duty to disclose means that anything you give the prosecution will almost certainly be given to the defence. This is why you need to make sure your client gets independent legal advice before consenting to the release of their records to police.

Story icon Case study: Neil

Neil was sexually assaulted by his tennis coach when he was 12 years old. About 10 years later, when he was 22, he commenced treatment with Penny, a naturopath. Neil disclosed the sexual assault to Penny. When he was 27 years old, Neil made a formal statement to police about the sexual assault that had happened when he was 12. The investigating officer, Senior Constable Roberts, asked Neil if he’d ever disclosed this to anyone else, and Neil said that the only people he told were his sister, who had since passed away, and Penny, his naturopath. Senior Constable Roberts asked Neil to sign a written consent to obtain copies of Penny’s records.

Although Neil wants to help the police, he doesn’t know what other information about him might be in Penny’s records. He decides to get legal advice before giving consent.

Documents released to the police during their investigations

Sexual assault complainants can feel that they have an obligation to assist the police investigation by consenting to the release of their health or counselling records, whether or not there is a subpoena, and sometimes before any court case has started. Police have a duty to conduct thorough investigations and collect all relevant evidence, even if it does not support the police case.

Victims of sexual assault can agree to release their documents to police, but they should seek independent legal advice about their rights and options first. It is also possible to give police partial or conditional consent, for example, to access only some of the medical/counseling material (rather than the whole file) and only on the condition that it is not shared with anyone.

Alternatively, decisions about evidence such as counselling records can be left to the ODPP lawyers, once the case gets to court.

The ODPP can ask police to gather information as further evidence. This is called a ‘requisition’. This option allows the ODPP and police to go back and gather information later if it is necessary: not all information needs to be handed over in the investigation stage.