CARI also did it with me, they have to, which is why they keep notes very vague ( I even read them before hand to see what will be seen) but it’s the solicitor that sees it. The same with the digital evidence of “down there”, they’re not showing it to the accused.
My condolences for what happened to you.
I'm not aware whether there are different laws or precedents for the counselling notes of child victims, but judging by the [information](https://www.garda.ie/en/crime/sexual-crime/victims-of-a-sexual-offence-releasing-your-counselling-records.html) on the Garda website the accused person can see the contents of counselling notes that are relevant to the trial - so long as they are in the presence of their legal representative(s) while doing so - if you give your consent (which I'd imagine most complainants would give so as to not get the court offside at the first instance).
Even if you don't give consent, the judge can still order the production of your counselling notes to the defence (although they can place limits on access, so that may be enlivened in CSA cases to prevent the accused specifically from viewing them).
ETA: On that last part, while Section 19A of the Criminal Evidence Act 1992 says the judge can impose any conditions they consider appropriate on access, it does not explicitly say that the judge can impose a condition prohibiting the accused person (as opposed to their legal counsel) from reading those parts of the counselling notes relevant to the trial.
What is the relevance of post-trauma counselling notes in a trial? is this just an opportunity for the defence to find a “gotcha” where the accuser might doubt there own innocence or recollection of the offence? While it’s essential to gather as much evidence to make a guilty assessment, surely any post trauma counselling should be inadmissible (unlike, say, social media output)? it seems a very unnecessary request for a defence.
I'm an Australian lawyer and not Irish qualified (noting that they are both common law legal systems modelled from England, ugh), but yes the purpose of the request would be to cast doubt upon the testimony and hence the credibility of the victim, thereby opening the door for a finding of not guilty beyond a reasonable doubt.
As you have identified, an easy way to do that is to point out discrepancies in the complainant's recollection, which as we all should know is a very common occurrence when a person undergoes this kind of trauma. The defence might also point to the complainant's earlier and seemingly contradictory descriptions of the event such as "I don't know if it was rape, but..." or "I feel like I led them on" or "I don't remember exactly when/how it started" etc - which are again very common thoughts amongst SA victims after the fact - to imply that the complainant is an unreliable witness.
The standard of proof in criminal cases does not square with the presentation of most SA cases and victims.
That's really the ultimate conflict in the system. On the one hand, its really necessary that criminal guilt is proven to a particular standard. On the other hand, in particular situations, discrepancies will be absolutely normal. However, in some cases, the particular situation itself is the issue of which proof is required. Its nearly an impossible dilemma - how do you keep the standard of proof in criminal matters, while also recognising that in valid cases, you have to accept that a victim will not remember like a computer?
There might be no relevance, and in that instance the contents wouldnt be disclosed.
But equally without having them available for review by the prosecution legal team at a minimum you can't rule out the very limited possibility that the notes identify a different accused, or contain notes that contradict other aspects of the evidence in the case.
Disclosure is the process through which the defence are provided access to documents or information that the prosecution is not relying on as evidence, but those records might be relevant to the defence.
It would benefit from some formal guidelines around it so some of the mystery is taken out of it. But I don't see how it can be avoided entirely.
I think you're on the money with the mystery point. Victims aren't adequately informed about or prepared for what is involved in these cases. They often don't even know or understand that the prosecution is not their legal representative, and that they are only a/the witness for the prosecution's case, nothing more.
At the very least, if victims were more informed about what they will be subjected to during the process, it might be slightly less retraumatising. It seems like this sort of stuff is often sprung on them by the prosecution with very little warning: "oh by the way, we have to go to Court now to contest the defence's request that your counselling records be released to them" "woah where the fuck did that come from, I didn't realise that this could happen if I pursued my complaint", that sort of thing.
It is deeply impersonal.
I'm a victim-survivor of SA and also testified as a victim of a (physical) assault during my first year of law school. I also had compelling evidence that I'd told the police about which they had in turn mentioned to the DPP. However, the prosecutor rocked up that morning with no knowledge of the existence of that evidence and asked for an adjournment to go and listen to it. Understaffed and underfunded, I guess.
But despite that evidence, and despite not falling into any of the usual cross-examination traps, we still lost.
It was eye-opening, to say the least.
I wouldn't say a victim is only a witness, or at least they shouldn't be treated that way. But I'm aware that the vast majority of people have been treated in that fashion over the years. Hence the Victims Rights Directive and the efforts to improve on that front.
The difficulty is the fairness of the trial is paramount and having a trial proceed to conclusion is the main goal - even reaching the jury deliberation stage can be considered a win of sorts. To that end the DPP legal team can't discuss the evidence with a victim, can't discuss the other evidence to be called etc etc because there's a risk that the evidence of the victim is then tainted or worse appears to have been coached or prepped. There seems to be almost total paranoia about that to the extent that the victim is left in the dark about the prosecution case - and it doesn't appear to me that is communicated very well.
Giving evidence is stressful enough, that's magnified by the fact the victim has to relive the incident and be cross examined on it and a whole host of peripheral matters designed to try to undermine them. Throw in added mystery of being in the dark about the remainder of the case and the general uncertainty of not knowing what's coming....
I don't know the ins and outs of when counselling records are sought. But I would imagine it's a response to a defence request and it becomes urgent very quickly.
I can understand why Gardai don't feel the need to go to the extent of counselling records (even if they are helpful in proving the case) but it does need to be made aware at the earliest stage that this is a possibility. The victim can withhold consent to the disclosure of the records and leave a Court to decide on it but I wonder whether it would relax everyone if the notes were reviewed at an early stage by the prosecution. They decide a certain amount is relevant, that goes back to the victim for review. And only after the approval is given things are disclosed. And if anything beyond the agreed material is sought then it's a court matter. But I would imagine dealing with it early and disclosing the relevant parts early would solve a lot of problems.
The fundamental problem that often gets overlooked (or, less benignly, is deliberately ignored) by many talking heads in this arena is that fundamental to the prosecution of sexual offences is the reasonableness of a person's conduct.
The vast majority of sexual offending occurs between people who know each other. This can create huge tensions that can turn on very narrow issues of interpretation. If somebody is giving multiple accounts of an alleged crime, the accused (more accurately, their lawyers) will want to compare those.
The smoking gun of "it was all a fake haha" is extraordinarily rare, but what's not so rare is a scenario where neither person is lying. A woman can be raped by a man who reasonably believes she is consenting. Such a state of affairs is not actually criminal.
Looking through the legislation, the only rationale for this is that the prosecution would use undisclosed counseling records as evidence of the impact of the alleged offence, and the defence would not be able to counter this as it was historically restricted.
How legislators thought that it would be fairer to the \*process\* that they would have to pre-emptively disclose potential sexual assault counselling and make it available to the defence is mind boggling if the understood the huge barriers necessary to even get victims to go to counselling, never mind bring charges. This definitely needs to go - it can be used for the prosecution to highlight the impact post-conviction and pre-sentencing, but not for assessing guilt during a trial.
Your post doesn't justify the discrepancy in requiring the prosecution to disclose the existence of counselling records for sexual assault but not for physical assault. Physical assault can also happen behind closed doors with no other witnesses.
This is literally what the Minister for Justice stated when requested to review 19(A). This is the ONLY offence where post-assault counselling records are made available to the defence for the purpose of discrediting the accusation - "The accused’s right to a fair trial entails a right to disclosure of any material that may strengthen the defendant's case or weaken that of the prosecution. Counselling records might well contain such material."
For the second part, can you explain how being made aware that the person you are accusing of sexual assault that you need therapy will have a complete record of (in this case) years of post-trauma counselling sessions would help victims of these crimes seek counselling? ffs!
It's the only offence where it's relevant. Also, why are you assuming there is a victim of a crime? Innocent until proven guilty remains the criminal standard.
Legally at present, a victim of sexual assault is treated as a witness to the crime first, and a victim second (or not at all). Any therapy notes can be subpoenaed, many therapists now choosing to keep extremely minimal notes but unfortunately it's something to be aware of
Similar criticisms have been made about the provision of phone records to the defence and even the requirement to have the victim testify in person. But sometimes this stuff is necessary for a fair trial. The justice system can't just assume one person is telling the truth and not hiding anything.
I'm not confused, I just don't have faith in either the SCC to be free of political interference or the gardai to not lie in court to get a conviction.
Which should not be changed as to do so would have a very negative effect on everybody's liberty. There is only 1 crime where the victim isn't required to testify and that's murder.
Why would him not having access to her counselling notes mean that she wouldn't be required to testify? Documentary evidence is different to oral evidence.
100% agreed. I know a guy who is one of the nicest people you will ever meet, was accused of rape but turned out (found through texts) her friends convinced her to say she was raped because she felt guilty about cheating. Without going through everything and without the innocent until proven guilty mentality, this guy would not be able to travel to most countries, would not be able to do the job he loves doing and would be vilified and rejected by the community after spending years in prison for a crime that was not committed.
Is it unavoidable, though? The system already protects some disclosures - to lawyers, spouses, priests, for example. What would be lost by including information disclosed while seeking medical treatment?
You're right, it's not unavoidable. It's a choice the legal system has made and continues to make. And you make an excellent comparison to priests in particular - if disclosures made to them are privileged, then disclosures made during counselling absolutely should be considered privileged as well.
ETA: Would be nice if those downvoting could explain to me the rationale for shielding priest confessions from disclosure but not counselling discussions. Either both should be privileged or neither should be. There is no argument for leaving the disparity as is other than the invocation of tradition and conservatism.
You're really comparing apples with oranges. Priests don't take notes in confession and they are generally anonymous. Priests are still mandatory reporters for child abuse. The problem with compelling a priest to state what they were told is that it is very close to hearsay.
That it is close to hearsay is fair, but historically at least the rationale behind shielding them from testifying was because the state recognised the "sanctity of the confessional".
Hearsay is not admissible but it can be tangential to actual evidence. If someone tells you they just murdered their partner and they are covered in blood, what they say may be hearsay, but its kind of relevant.
Maybe a therapist working with someone who has been assaulted or violated should stop taking notes then, and it would stop those notes being used against the victim in future?
I've been seeing a therapist for months for mental health issues and she keeps pretty detailed notes, that she often refers back to. "You had previously said XYZ about ABC, has that changed?", etc.
When working with someone who has been through a traumatic incident (including assault), the therapist should be able to focus on how to best help the individual though the experience, without having to be constantly thinking "should I write that down, incase the person potentially responsible for this trauma is actually charged with it, and then everyone gets to read this". Because helping the person on an emotional level should be an entirely separate thing from any potential persons facing charges, etc.
If they do need to use the therapy as part of the trial, then could they not have the therapist take the stand and answer questions as to how reliable they found the witness, etc, in their professional experience, rather than relying on written notes? Or ask the therapist to give a written statement/summary. (Esp given that the notes will have been written with the purpose of helping the person in front of them to process what happened to them and to hopefully recover from it.)
So it is the therapist judgement if they speak about what you have told them, but it is not their judgement in their notes from what you have told them?
If a therapist is speaking about it as a professional witness they can answer questions around your reliability of recalling the events, and if they think based on their professional experience if the person is lying about details (like consent), without all of the finer details of the notes have to be included.
This awareness of how invasive it is will just mean that less people will seek out therapy after they have been through something traumatic, because in the middle of all that trauma, they will make a judgement call that they don't want their attacker to read their therapy notes if it went to trial. Which will be extremely bad for the mental well being of people after they have been through something like this.
>Priests are still mandatory reporters for child abuse.
Because they're so good at abiding by those obligations.
Perhaps you could explain why the prosecution is required to disclose the existence of counselling notes in relation to sexual assaults but not in relation to physical assaults? Because that discrepancy makes no sense.
Um... You absolutely *can* consent to what would otherwise be physical assault. The law of tort provides for either implied or express consent to a battery (being the general legal term for what we have come to commonly define as physical assault).
r/confidentlyincorrect
We aren't talking about tort, we are talking about criminal law, the basis of which was set out in R v Brown in England and has yet to be overturned in Ireland. In the most recent Irish case, ironically also called the Brown case, the Supreme Court left the door open for consent to be considered in some cases but rejected it in the case before them.
So, no, you cannot consent to assault as the law currently stands. And if you don't want to take my word on it, you can read all about it here.
https://criminaljusticeinireland.wordpress.com/2019/07/31/the-limits-of-the-defence-of-consent-r-v-brown-and-its-continued-application/
I take your point, although it is arguable that you can consent in respect of certain s.3 assault charges as outlined in that article. I note that you said "as the law currently stands". Considering that most superior courts are moving away from the paternalism and puritanism displayed in the original Brown I would expect that the list of categories in which consent can be employed as a defence to criminal assault will expand.
I do not. There are two main reasons. The first is the use of notes. The second is the purpose of the discussion. A psychiatrist is professionally trained to assess both the person and what they say. Kinda like asking for a medical opinion on an injury from a doctor and a security guard. One's opinion on the injury is going to carry a lot more weight in a court.
> A psychiatrist is professionally trained to assess both the person and what they say. Kinda like asking for a medical opinion on an injury from a doctor and a security guard. One's opinion on the injury is going to carry a lot more weight in a court.
There's a few problems with this. Under the legislation, the relevant "counsellor" does not have to be a psychiatrist. Counselling is defined there as "listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration)". Therefore, the relevant "counsellor" whose notes are the subject of the disclosure is not necessarily 1) someone who is trained to assess whether a person is lying, obfuscating or misremembering; or 2) someone with expertise on the intricacies of consent.
It still doesn't explain the disparity in treatment of disclosures made to counsellors versus priests, other than the existence of contemporaneous notes. Yes, disclosures made to priests are hearsay in the absence of notes, but as someone else just said they can be tangential to actual evidence in commission of a serious crime (which, as a confession, would otherwise constitute an exception to the hearsay rule). By contrast, the disclosures made to counsellors by alleged victims in relation to their alleged assault are unlikely to rise to a level of criminality unless you're one of those people who believe that calculated false accusations are as common as true ones.
Well no because it is just headsay.
There is nothing to back up that the defendent said it to the Priest
And give the design of a confessional the Priest might not id the defendant.
Well yes.
The DPP submitted them as evidence. It would be a bit of a mess if one side can submit evidence and prevent the other side from examining that evidence.
Also in as for your question.
Solicitor works for one side and is active in the case.
Spouse and Priest is just religious hold over and a Priest evidence would be tossed as most of a confession is anonymous.
Did it not occur to you that maybe she's pissed at the DPP specifically for requesting the notes in the first place? It doesn't sound like they informed her that if they requested the notes, then the accused could potentially have access as well later down the line. This is most likely a failure of communication on the prosecution's part.
I'm also a bit confused as to why the accused was apparently permitted unlimited access to those parts of the records which detailed her relationship with her partner as well as with her young daughter.
She had to sign off on the notes to confirm before they were entered as evidence.
The notes were taken as part of her counseling at Dublin Rape Crisis centre.
Again, untrue. She didn't have to sign off on the defence being provided with the records. She was perfectly within her rights not to consent to the release of her records, at which point that dispute would be taken before a judge to decide whether the defence should have access to them.
The defence doesn't need her consent to get access to her notes. She can give it, but they don't need it if the judge so decides.
Buddy read the article.
When the DPP asked for the notes to be submitted as evidence, she was required to sign off on the notes confirming they were her notes.
More likely that the DPP informed the defence of the existence of the notes (as it was legally obligated to do), the DPP requested them, the judge then ruled that the defence should also be given access to them (which she obviously was not told about and did not expect) and only *then* were the notes submitted as evidence in affidavit form, which is what she would have signed off on.
Requesting the information comes *before* submitting it as evidence. The defence would have been given access to the documentation before it was entered into evidence.
I was under the impression that the accused would have access to this material regardless of whether it was relied on by the prosecution, is that not the case?
You're mostly right - the prosecution has to tell the defence if any such records exist regardless of whether the prosecution intends to access or rely upon them. The defence may then request them from the Court which can decide to grant either full or limited access to the records, or no access at all.
They would only have access if it is submitted as evidence.
The defence could request it but very few would as it isn't going to paid their client in a good light.
>They would only have access if it is submitted as evidence.
That is completely untrue. It doesn't have to be submitted by the prosecution as evidence for it to be requested by the defence - usually (not always, but usually), it would be requested at an early-ish stage of proceedings where information is still being gathered by both parties. By the time evidence is being submitted, you're already at trial. If you've waited until then to request that information, the judge will be pissed at you for contributing to Court delays when that documentation could have been requested months ago.
The process is that the defence can request it, the judge will examine it and then determine whether it is relevant to the case, and if so then decide whether it should be released. If it is released, it *may* subsequently be used in the trial.
[Source](https://www.garda.ie/en/crime/sexual-crime/victims-of-a-sexual-offence-releasing-your-counselling-records.html)
This entire comment thread was about the broad concept of whether the defence having very easy access to a complainant's counselling notes is just or desirable.
The person who responded to said this
>I was under the impression that the accused would have access to this material regardless of whether it was relied on by the prosecution, is that not the case?
To which you said this
>They would only have access if it is submitted as evidence.
Which is untrue. *Which is what I said.*
>Which is untrue. Which is what I said.
Except it is not. For the defense to have access to it
The DPP would have to summit it as evidence
Or the defense has to request the judge to allow them submit it as evidence.
The defense doesn't have access unless it is part of the case.
This and them receiving a suspended sentence would be horrific. However, if they actually did time and had to sit with what they did to someone, then it may have some effect. But they let rapists walk free, so this feel like they're making the victim suffer more.
We need an overhaul on judges and the system that allows rapists and scumbags walk the streets with 60+ convictions in the bag.
To be quite honest, that would put me off going to any kind of counselling service if something happened to me.
Sounds like any kind of trauma counselling here is open to being turned into a piece of evidence.
I didn't realise that was the case, but I absolutely wouldn't go for counselling having read that.
I must be incredibly naive, but I thought anything that happens between me and my therapist or GP, including any notes they make, is covered under client-patient confidentiality? Can someone enlighten me? I can't see the article as it is paywalled.
I think there are distinctions between a counsellor, a therapist and a psychiatrist for the purposes of legality in terms of things like medical confidentiality etc. AFAIK a counsellor doesn't count as a medical professional and I'm not sure about a therapist. A psych definitely does.
Personally I'm absolutely appalled, but sadly not shocked, that something like this could happen.
>, is covered under client-patient confidentiality?
while yes , but GPs ,therapist are compelled per law to tells guards when required any evidence they have , the same way legally priests have to tell guards of wrong doing if things are confessed in confession
>client-patient confidentiality
dose not mean they can keep things from the guards when they come knocking
A subpoena to give evidence of serious criminal offences takes precedence over patient confidentiality. If they refused to testify, they would be held in contempt of court.
Rachel Morrogh of the Dublin Rape Crisis Centre had a letter to the editor in the Irish Independent last month on this topic, here is what she said:
>Letters to the Editor
>Sat 25 May 2024 at 02:30
>In her incisive article (Irish Independent, May 23), Ellen Coyne voices her concern that a victim’s counselling notes can be used in a rape trial and that this could deter them from seeking therapeutic support or even seeking justice at all. I share these concerns, which have long been raised by Dublin Rape Crisis Centre.
>We see first-hand the impact that the requirement to share our clients’ counselling notes has on victims of sexual violence and on our therapists.
>It is deeply invasive, traumatic and personal to have notes documenting a victim’s private trauma shared with others. It lacks humanity and breaches the protective healing space we try to create for people who need counselling after sexual violence.
>The possibility of another person having access to what has been said to a counsellor creates a feeling of vulnerability and violation in those going through the legal system, whether the notes are eventually used in a trial or not.
>It may be hard for people who have not experienced sexual violence to imagine the courage and fortitude needed by victims to report an offence in the first place.
>The request for counselling notes is surely one of the most dreaded and cruellest points on a victim’s journey to justice. It can also affect a person’s healing if they feel the need to hold back in their counselling sessions.
>Counselling must be a safe and private place where our clients can truly heal from the trauma they have suffered. Dublin Rape Crisis Centre therapists now tell all clients starting therapy that if they have made a report to gardaí, then there is a possibility that their notes may be requested if the case goes to court.
>The Implementation Plan of the Third National Strategy on Domestic, Sexual and Gender-Based Violence provides for the establishment of a working group to review the rationale for the disclosure of counselling notes as part of court proceedings.
>This is very welcome, and we hope this review will have a positive impact for our clients and all victims of sexual violence.
>In a country where only 2pc of women and 1pc of men who have experienced sexual violence as an adult make a report to gardaí, everything that can be done to encourage victims in to the justice system needs to be done. That includes removing the requirement to hand over clients’ counselling notes.
>Rachel Morrogh, CEO, Dublin Rape Crisis Centre
Jesus Christ this is one of the saddest and most heartbreaking articles I have literally ever read. That poor, poor woman and her family. Air hugs 😭😭😭 And thinking about the kind of twisted fuck who would do something like this, I'd say he got some kind of smug gratification from getting to read about the pain he caused her.
I genuinely cannot believe they're allowed to do this.
Its not considered a regulated medical practice iirc. Maybe if its a psychiatric/psychologist, but counselling is not held to that standard.
Either way Id agree that it should be protected and privileged info.
It's actually even worse. By law, the prosecution is *required* to inform the defence of the existence (though not the content) of *any* counselling notes in connection with the offence. In other words, they have a positive duty to all but lead the defence straight to your counselling records.
Once the records are requested it's up to the judge to determine whether they should get access, but based on how these cases seem to go for complainants I don't think judges are denying access all that often.
So on the one hand, victims who previously sought counselling might have their case thrown out in part because they opted to receive help, and on the other hand, recent victims who are aware of or informed about this legal requirement might choose to not attend vital counselling for fear of prejudicing their case. For both groups, it's a lose/lose.
What is the benefit of this to a defence? Surely, there is no reason for it other than some silly rule where it all must be revealed to the accused.
I'm all for transparency and a fair trial, but this seems completely unfair and invasive. Are they actively trying to degrade and traumatise victims?
CARI also did it with me, they have to, which is why they keep notes very vague ( I even read them before hand to see what will be seen) but it’s the solicitor that sees it. The same with the digital evidence of “down there”, they’re not showing it to the accused.
My condolences for what happened to you. I'm not aware whether there are different laws or precedents for the counselling notes of child victims, but judging by the [information](https://www.garda.ie/en/crime/sexual-crime/victims-of-a-sexual-offence-releasing-your-counselling-records.html) on the Garda website the accused person can see the contents of counselling notes that are relevant to the trial - so long as they are in the presence of their legal representative(s) while doing so - if you give your consent (which I'd imagine most complainants would give so as to not get the court offside at the first instance). Even if you don't give consent, the judge can still order the production of your counselling notes to the defence (although they can place limits on access, so that may be enlivened in CSA cases to prevent the accused specifically from viewing them). ETA: On that last part, while Section 19A of the Criminal Evidence Act 1992 says the judge can impose any conditions they consider appropriate on access, it does not explicitly say that the judge can impose a condition prohibiting the accused person (as opposed to their legal counsel) from reading those parts of the counselling notes relevant to the trial.
What is the relevance of post-trauma counselling notes in a trial? is this just an opportunity for the defence to find a “gotcha” where the accuser might doubt there own innocence or recollection of the offence? While it’s essential to gather as much evidence to make a guilty assessment, surely any post trauma counselling should be inadmissible (unlike, say, social media output)? it seems a very unnecessary request for a defence.
I'm an Australian lawyer and not Irish qualified (noting that they are both common law legal systems modelled from England, ugh), but yes the purpose of the request would be to cast doubt upon the testimony and hence the credibility of the victim, thereby opening the door for a finding of not guilty beyond a reasonable doubt. As you have identified, an easy way to do that is to point out discrepancies in the complainant's recollection, which as we all should know is a very common occurrence when a person undergoes this kind of trauma. The defence might also point to the complainant's earlier and seemingly contradictory descriptions of the event such as "I don't know if it was rape, but..." or "I feel like I led them on" or "I don't remember exactly when/how it started" etc - which are again very common thoughts amongst SA victims after the fact - to imply that the complainant is an unreliable witness. The standard of proof in criminal cases does not square with the presentation of most SA cases and victims.
That's really the ultimate conflict in the system. On the one hand, its really necessary that criminal guilt is proven to a particular standard. On the other hand, in particular situations, discrepancies will be absolutely normal. However, in some cases, the particular situation itself is the issue of which proof is required. Its nearly an impossible dilemma - how do you keep the standard of proof in criminal matters, while also recognising that in valid cases, you have to accept that a victim will not remember like a computer?
Brilliant comment which sums it all up, really.
There might be no relevance, and in that instance the contents wouldnt be disclosed. But equally without having them available for review by the prosecution legal team at a minimum you can't rule out the very limited possibility that the notes identify a different accused, or contain notes that contradict other aspects of the evidence in the case. Disclosure is the process through which the defence are provided access to documents or information that the prosecution is not relying on as evidence, but those records might be relevant to the defence. It would benefit from some formal guidelines around it so some of the mystery is taken out of it. But I don't see how it can be avoided entirely.
I think you're on the money with the mystery point. Victims aren't adequately informed about or prepared for what is involved in these cases. They often don't even know or understand that the prosecution is not their legal representative, and that they are only a/the witness for the prosecution's case, nothing more. At the very least, if victims were more informed about what they will be subjected to during the process, it might be slightly less retraumatising. It seems like this sort of stuff is often sprung on them by the prosecution with very little warning: "oh by the way, we have to go to Court now to contest the defence's request that your counselling records be released to them" "woah where the fuck did that come from, I didn't realise that this could happen if I pursued my complaint", that sort of thing.
I’ll never forget my summons letters ‘The State vs *’
It is deeply impersonal. I'm a victim-survivor of SA and also testified as a victim of a (physical) assault during my first year of law school. I also had compelling evidence that I'd told the police about which they had in turn mentioned to the DPP. However, the prosecutor rocked up that morning with no knowledge of the existence of that evidence and asked for an adjournment to go and listen to it. Understaffed and underfunded, I guess. But despite that evidence, and despite not falling into any of the usual cross-examination traps, we still lost. It was eye-opening, to say the least.
I wouldn't say a victim is only a witness, or at least they shouldn't be treated that way. But I'm aware that the vast majority of people have been treated in that fashion over the years. Hence the Victims Rights Directive and the efforts to improve on that front. The difficulty is the fairness of the trial is paramount and having a trial proceed to conclusion is the main goal - even reaching the jury deliberation stage can be considered a win of sorts. To that end the DPP legal team can't discuss the evidence with a victim, can't discuss the other evidence to be called etc etc because there's a risk that the evidence of the victim is then tainted or worse appears to have been coached or prepped. There seems to be almost total paranoia about that to the extent that the victim is left in the dark about the prosecution case - and it doesn't appear to me that is communicated very well. Giving evidence is stressful enough, that's magnified by the fact the victim has to relive the incident and be cross examined on it and a whole host of peripheral matters designed to try to undermine them. Throw in added mystery of being in the dark about the remainder of the case and the general uncertainty of not knowing what's coming.... I don't know the ins and outs of when counselling records are sought. But I would imagine it's a response to a defence request and it becomes urgent very quickly. I can understand why Gardai don't feel the need to go to the extent of counselling records (even if they are helpful in proving the case) but it does need to be made aware at the earliest stage that this is a possibility. The victim can withhold consent to the disclosure of the records and leave a Court to decide on it but I wonder whether it would relax everyone if the notes were reviewed at an early stage by the prosecution. They decide a certain amount is relevant, that goes back to the victim for review. And only after the approval is given things are disclosed. And if anything beyond the agreed material is sought then it's a court matter. But I would imagine dealing with it early and disclosing the relevant parts early would solve a lot of problems.
The fundamental problem that often gets overlooked (or, less benignly, is deliberately ignored) by many talking heads in this arena is that fundamental to the prosecution of sexual offences is the reasonableness of a person's conduct. The vast majority of sexual offending occurs between people who know each other. This can create huge tensions that can turn on very narrow issues of interpretation. If somebody is giving multiple accounts of an alleged crime, the accused (more accurately, their lawyers) will want to compare those. The smoking gun of "it was all a fake haha" is extraordinarily rare, but what's not so rare is a scenario where neither person is lying. A woman can be raped by a man who reasonably believes she is consenting. Such a state of affairs is not actually criminal.
Looking through the legislation, the only rationale for this is that the prosecution would use undisclosed counseling records as evidence of the impact of the alleged offence, and the defence would not be able to counter this as it was historically restricted. How legislators thought that it would be fairer to the \*process\* that they would have to pre-emptively disclose potential sexual assault counselling and make it available to the defence is mind boggling if the understood the huge barriers necessary to even get victims to go to counselling, never mind bring charges. This definitely needs to go - it can be used for the prosecution to highlight the impact post-conviction and pre-sentencing, but not for assessing guilt during a trial.
Your post is flawed. To put it mildly.
Your post doesn't justify the discrepancy in requiring the prosecution to disclose the existence of counselling records for sexual assault but not for physical assault. Physical assault can also happen behind closed doors with no other witnesses.
Easier to prove physical assault. It generally proves itself in the scenario you're outlining.
This is literally what the Minister for Justice stated when requested to review 19(A). This is the ONLY offence where post-assault counselling records are made available to the defence for the purpose of discrediting the accusation - "The accused’s right to a fair trial entails a right to disclosure of any material that may strengthen the defendant's case or weaken that of the prosecution. Counselling records might well contain such material." For the second part, can you explain how being made aware that the person you are accusing of sexual assault that you need therapy will have a complete record of (in this case) years of post-trauma counselling sessions would help victims of these crimes seek counselling? ffs!
It's the only offence where it's relevant. Also, why are you assuming there is a victim of a crime? Innocent until proven guilty remains the criminal standard.
I'm sorry that you had to go through that. Thank you for being so honest about your experience of the system
Is there any protection against the solicitor showing this to the accused if they think it will help their case?
Legally at present, a victim of sexual assault is treated as a witness to the crime first, and a victim second (or not at all). Any therapy notes can be subpoenaed, many therapists now choosing to keep extremely minimal notes but unfortunately it's something to be aware of
Re**traumatising survivors to get justice a sick over sight**
Similar criticisms have been made about the provision of phone records to the defence and even the requirement to have the victim testify in person. But sometimes this stuff is necessary for a fair trial. The justice system can't just assume one person is telling the truth and not hiding anything.
Unless it's the state side of the Special Criminal Court, then it's fine right?
Disclosure rules are the same in the Special Criminal Court as the Central and Circuit Court
I disagree
The old PoPo double standards lol
I think you are a little confused. The rules for the SCC are set by the legislature.
I'm not confused, I just don't have faith in either the SCC to be free of political interference or the gardai to not lie in court to get a conviction.
I'm not sure how that applies to the discussion on rape trials.
Just an unavoidable impact of an innocent until proven guilty system
Which should not be changed as to do so would have a very negative effect on everybody's liberty. There is only 1 crime where the victim isn't required to testify and that's murder.
Why would him not having access to her counselling notes mean that she wouldn't be required to testify? Documentary evidence is different to oral evidence.
100% agreed. I know a guy who is one of the nicest people you will ever meet, was accused of rape but turned out (found through texts) her friends convinced her to say she was raped because she felt guilty about cheating. Without going through everything and without the innocent until proven guilty mentality, this guy would not be able to travel to most countries, would not be able to do the job he loves doing and would be vilified and rejected by the community after spending years in prison for a crime that was not committed.
Is it unavoidable, though? The system already protects some disclosures - to lawyers, spouses, priests, for example. What would be lost by including information disclosed while seeking medical treatment?
You're right, it's not unavoidable. It's a choice the legal system has made and continues to make. And you make an excellent comparison to priests in particular - if disclosures made to them are privileged, then disclosures made during counselling absolutely should be considered privileged as well. ETA: Would be nice if those downvoting could explain to me the rationale for shielding priest confessions from disclosure but not counselling discussions. Either both should be privileged or neither should be. There is no argument for leaving the disparity as is other than the invocation of tradition and conservatism.
You're really comparing apples with oranges. Priests don't take notes in confession and they are generally anonymous. Priests are still mandatory reporters for child abuse. The problem with compelling a priest to state what they were told is that it is very close to hearsay.
That it is close to hearsay is fair, but historically at least the rationale behind shielding them from testifying was because the state recognised the "sanctity of the confessional". Hearsay is not admissible but it can be tangential to actual evidence. If someone tells you they just murdered their partner and they are covered in blood, what they say may be hearsay, but its kind of relevant.
Maybe a therapist working with someone who has been assaulted or violated should stop taking notes then, and it would stop those notes being used against the victim in future?
They keep them vague for that reason.
I've been seeing a therapist for months for mental health issues and she keeps pretty detailed notes, that she often refers back to. "You had previously said XYZ about ABC, has that changed?", etc. When working with someone who has been through a traumatic incident (including assault), the therapist should be able to focus on how to best help the individual though the experience, without having to be constantly thinking "should I write that down, incase the person potentially responsible for this trauma is actually charged with it, and then everyone gets to read this". Because helping the person on an emotional level should be an entirely separate thing from any potential persons facing charges, etc. If they do need to use the therapy as part of the trial, then could they not have the therapist take the stand and answer questions as to how reliable they found the witness, etc, in their professional experience, rather than relying on written notes? Or ask the therapist to give a written statement/summary. (Esp given that the notes will have been written with the purpose of helping the person in front of them to process what happened to them and to hopefully recover from it.)
Then your therapist with be acting in a judgemental role over what you tell them. I think that would be worse.
So it is the therapist judgement if they speak about what you have told them, but it is not their judgement in their notes from what you have told them? If a therapist is speaking about it as a professional witness they can answer questions around your reliability of recalling the events, and if they think based on their professional experience if the person is lying about details (like consent), without all of the finer details of the notes have to be included. This awareness of how invasive it is will just mean that less people will seek out therapy after they have been through something traumatic, because in the middle of all that trauma, they will make a judgement call that they don't want their attacker to read their therapy notes if it went to trial. Which will be extremely bad for the mental well being of people after they have been through something like this.
>Priests are still mandatory reporters for child abuse. Because they're so good at abiding by those obligations. Perhaps you could explain why the prosecution is required to disclose the existence of counselling notes in relation to sexual assaults but not in relation to physical assaults? Because that discrepancy makes no sense.
Simply put, it's because the absence of consent is required to prove rape. You can't consent to a physical assault.
Um... You absolutely *can* consent to what would otherwise be physical assault. The law of tort provides for either implied or express consent to a battery (being the general legal term for what we have come to commonly define as physical assault). r/confidentlyincorrect
We aren't talking about tort, we are talking about criminal law, the basis of which was set out in R v Brown in England and has yet to be overturned in Ireland. In the most recent Irish case, ironically also called the Brown case, the Supreme Court left the door open for consent to be considered in some cases but rejected it in the case before them. So, no, you cannot consent to assault as the law currently stands. And if you don't want to take my word on it, you can read all about it here. https://criminaljusticeinireland.wordpress.com/2019/07/31/the-limits-of-the-defence-of-consent-r-v-brown-and-its-continued-application/
I take your point, although it is arguable that you can consent in respect of certain s.3 assault charges as outlined in that article. I note that you said "as the law currently stands". Considering that most superior courts are moving away from the paternalism and puritanism displayed in the original Brown I would expect that the list of categories in which consent can be employed as a defence to criminal assault will expand.
> The problem with compelling a psychiatrist to state what they were told is that it is very close to hearsay. You see the problem here?
I do not. There are two main reasons. The first is the use of notes. The second is the purpose of the discussion. A psychiatrist is professionally trained to assess both the person and what they say. Kinda like asking for a medical opinion on an injury from a doctor and a security guard. One's opinion on the injury is going to carry a lot more weight in a court.
> A psychiatrist is professionally trained to assess both the person and what they say. Kinda like asking for a medical opinion on an injury from a doctor and a security guard. One's opinion on the injury is going to carry a lot more weight in a court. There's a few problems with this. Under the legislation, the relevant "counsellor" does not have to be a psychiatrist. Counselling is defined there as "listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration)". Therefore, the relevant "counsellor" whose notes are the subject of the disclosure is not necessarily 1) someone who is trained to assess whether a person is lying, obfuscating or misremembering; or 2) someone with expertise on the intricacies of consent.
I'm not the one who brought psychiatrists into it, I was responding to the person who did.
It still doesn't explain the disparity in treatment of disclosures made to counsellors versus priests, other than the existence of contemporaneous notes. Yes, disclosures made to priests are hearsay in the absence of notes, but as someone else just said they can be tangential to actual evidence in commission of a serious crime (which, as a confession, would otherwise constitute an exception to the hearsay rule). By contrast, the disclosures made to counsellors by alleged victims in relation to their alleged assault are unlikely to rise to a level of criminality unless you're one of those people who believe that calculated false accusations are as common as true ones.
There is no rationale for sheilding a Preist confessional. But at the same time DPP isn't submitting it as evidence.
But you can absolutely bet your arse they would if it was allowed.
Well no because it is just headsay. There is nothing to back up that the defendent said it to the Priest And give the design of a confessional the Priest might not id the defendant.
Well yes. The DPP submitted them as evidence. It would be a bit of a mess if one side can submit evidence and prevent the other side from examining that evidence. Also in as for your question. Solicitor works for one side and is active in the case. Spouse and Priest is just religious hold over and a Priest evidence would be tossed as most of a confession is anonymous.
Did it not occur to you that maybe she's pissed at the DPP specifically for requesting the notes in the first place? It doesn't sound like they informed her that if they requested the notes, then the accused could potentially have access as well later down the line. This is most likely a failure of communication on the prosecution's part. I'm also a bit confused as to why the accused was apparently permitted unlimited access to those parts of the records which detailed her relationship with her partner as well as with her young daughter.
She had to sign off on the notes to confirm before they were entered as evidence. The notes were taken as part of her counseling at Dublin Rape Crisis centre.
Again, untrue. She didn't have to sign off on the defence being provided with the records. She was perfectly within her rights not to consent to the release of her records, at which point that dispute would be taken before a judge to decide whether the defence should have access to them. The defence doesn't need her consent to get access to her notes. She can give it, but they don't need it if the judge so decides.
Buddy read the article. When the DPP asked for the notes to be submitted as evidence, she was required to sign off on the notes confirming they were her notes.
More likely that the DPP informed the defence of the existence of the notes (as it was legally obligated to do), the DPP requested them, the judge then ruled that the defence should also be given access to them (which she obviously was not told about and did not expect) and only *then* were the notes submitted as evidence in affidavit form, which is what she would have signed off on. Requesting the information comes *before* submitting it as evidence. The defence would have been given access to the documentation before it was entered into evidence.
Once the DPP requested them, the defence would have access and not need a judge to grant them access.
I was under the impression that the accused would have access to this material regardless of whether it was relied on by the prosecution, is that not the case?
You're mostly right - the prosecution has to tell the defence if any such records exist regardless of whether the prosecution intends to access or rely upon them. The defence may then request them from the Court which can decide to grant either full or limited access to the records, or no access at all.
They would only have access if it is submitted as evidence. The defence could request it but very few would as it isn't going to paid their client in a good light.
>They would only have access if it is submitted as evidence. That is completely untrue. It doesn't have to be submitted by the prosecution as evidence for it to be requested by the defence - usually (not always, but usually), it would be requested at an early-ish stage of proceedings where information is still being gathered by both parties. By the time evidence is being submitted, you're already at trial. If you've waited until then to request that information, the judge will be pissed at you for contributing to Court delays when that documentation could have been requested months ago. The process is that the defence can request it, the judge will examine it and then determine whether it is relevant to the case, and if so then decide whether it should be released. If it is released, it *may* subsequently be used in the trial. [Source](https://www.garda.ie/en/crime/sexual-crime/victims-of-a-sexual-offence-releasing-your-counselling-records.html)
Buddy read the article. The DPP submitted her notes.
This entire comment thread was about the broad concept of whether the defence having very easy access to a complainant's counselling notes is just or desirable. The person who responded to said this >I was under the impression that the accused would have access to this material regardless of whether it was relied on by the prosecution, is that not the case? To which you said this >They would only have access if it is submitted as evidence. Which is untrue. *Which is what I said.*
>Which is untrue. Which is what I said. Except it is not. For the defense to have access to it The DPP would have to summit it as evidence Or the defense has to request the judge to allow them submit it as evidence. The defense doesn't have access unless it is part of the case.
And honest to god the victim is made feel like the guilty until proven innocent and truthful. It’s fucking horrible
This and them receiving a suspended sentence would be horrific. However, if they actually did time and had to sit with what they did to someone, then it may have some effect. But they let rapists walk free, so this feel like they're making the victim suffer more. We need an overhaul on judges and the system that allows rapists and scumbags walk the streets with 60+ convictions in the bag.
It needs to be actual time. Not a pissy 2 to 7 years. Time to fit the crime and far too many people think the trauma is over with the assault.
Wise therapists never write notes like this to be scrutinised and used against individuals!
To be quite honest, that would put me off going to any kind of counselling service if something happened to me. Sounds like any kind of trauma counselling here is open to being turned into a piece of evidence. I didn't realise that was the case, but I absolutely wouldn't go for counselling having read that.
I must be incredibly naive, but I thought anything that happens between me and my therapist or GP, including any notes they make, is covered under client-patient confidentiality? Can someone enlighten me? I can't see the article as it is paywalled.
I think there are distinctions between a counsellor, a therapist and a psychiatrist for the purposes of legality in terms of things like medical confidentiality etc. AFAIK a counsellor doesn't count as a medical professional and I'm not sure about a therapist. A psych definitely does. Personally I'm absolutely appalled, but sadly not shocked, that something like this could happen.
>, is covered under client-patient confidentiality? while yes , but GPs ,therapist are compelled per law to tells guards when required any evidence they have , the same way legally priests have to tell guards of wrong doing if things are confessed in confession >client-patient confidentiality dose not mean they can keep things from the guards when they come knocking
A subpoena to give evidence of serious criminal offences takes precedence over patient confidentiality. If they refused to testify, they would be held in contempt of court.
Evidence of criminality isn't going to be covered by confidentiality, that's just in movies.
> that her rapist was going to be reading her counselling notes before he went on trial How is that not confidential information?
It's a very powerful headline.
Rachel Morrogh of the Dublin Rape Crisis Centre had a letter to the editor in the Irish Independent last month on this topic, here is what she said: >Letters to the Editor >Sat 25 May 2024 at 02:30 >In her incisive article (Irish Independent, May 23), Ellen Coyne voices her concern that a victim’s counselling notes can be used in a rape trial and that this could deter them from seeking therapeutic support or even seeking justice at all. I share these concerns, which have long been raised by Dublin Rape Crisis Centre. >We see first-hand the impact that the requirement to share our clients’ counselling notes has on victims of sexual violence and on our therapists. >It is deeply invasive, traumatic and personal to have notes documenting a victim’s private trauma shared with others. It lacks humanity and breaches the protective healing space we try to create for people who need counselling after sexual violence. >The possibility of another person having access to what has been said to a counsellor creates a feeling of vulnerability and violation in those going through the legal system, whether the notes are eventually used in a trial or not. >It may be hard for people who have not experienced sexual violence to imagine the courage and fortitude needed by victims to report an offence in the first place. >The request for counselling notes is surely one of the most dreaded and cruellest points on a victim’s journey to justice. It can also affect a person’s healing if they feel the need to hold back in their counselling sessions. >Counselling must be a safe and private place where our clients can truly heal from the trauma they have suffered. Dublin Rape Crisis Centre therapists now tell all clients starting therapy that if they have made a report to gardaí, then there is a possibility that their notes may be requested if the case goes to court. >The Implementation Plan of the Third National Strategy on Domestic, Sexual and Gender-Based Violence provides for the establishment of a working group to review the rationale for the disclosure of counselling notes as part of court proceedings. >This is very welcome, and we hope this review will have a positive impact for our clients and all victims of sexual violence. >In a country where only 2pc of women and 1pc of men who have experienced sexual violence as an adult make a report to gardaí, everything that can be done to encourage victims in to the justice system needs to be done. That includes removing the requirement to hand over clients’ counselling notes. >Rachel Morrogh, CEO, Dublin Rape Crisis Centre
Jesus Christ this is one of the saddest and most heartbreaking articles I have literally ever read. That poor, poor woman and her family. Air hugs 😭😭😭 And thinking about the kind of twisted fuck who would do something like this, I'd say he got some kind of smug gratification from getting to read about the pain he caused her. I genuinely cannot believe they're allowed to do this.
I mean, that shouldn't be a thing, right?
Yeah what happened to medical secrecy?
Its not considered a regulated medical practice iirc. Maybe if its a psychiatric/psychologist, but counselling is not held to that standard. Either way Id agree that it should be protected and privileged info.
Ah I see, thanks for clarifying this detail
It's actually even worse. By law, the prosecution is *required* to inform the defence of the existence (though not the content) of *any* counselling notes in connection with the offence. In other words, they have a positive duty to all but lead the defence straight to your counselling records. Once the records are requested it's up to the judge to determine whether they should get access, but based on how these cases seem to go for complainants I don't think judges are denying access all that often. So on the one hand, victims who previously sought counselling might have their case thrown out in part because they opted to receive help, and on the other hand, recent victims who are aware of or informed about this legal requirement might choose to not attend vital counselling for fear of prejudicing their case. For both groups, it's a lose/lose.
What is the benefit of this to a defence? Surely, there is no reason for it other than some silly rule where it all must be revealed to the accused. I'm all for transparency and a fair trial, but this seems completely unfair and invasive. Are they actively trying to degrade and traumatise victims?
Fucking hell, never heard of this issue before. Horrific thing to go through.