Updated guidance for rape trial prosecutors could deter survivors from seeking “vital” therapy before their case has gone to court, women’s rights groups have warned.

The new pre-trial therapy advice from the Crown Prosecution Service (CPS) outlines the specific circumstances under which therapy notes can now be used as part of a rape investigation – but campaigners believe the updated guidance will “increase the likelihood” that rape victims’ private therapy notes will be used to “discredit” them in court.

The updated document features four key changes, which include the requirement for victims to be made aware that accessing therapy is separate to the criminal process and rules about following data protection laws.  

The guidance also says police and prosecutors will only be able to request therapy notes if they have a “reasonable line of enquiry” that could reveal material “relevant” to the case at hand and that material will only be shared with the defence if it could undermine the prosecution’s case or assist the suspect.

However, campaigners and legal experts say that continuing to allow victims’ private therapy notes to be used in legal proceedings will continue to make the victim’s credibility the centre of these kinds of cases, rather than the alleged actions of the defendant.

“Any guidelines which make it more difficult for a sexual abuse survivor to process what has happened to them or enable a further invasion of privacy should strongly be resisted,” says Danielle Vincent, senior associate at Hugh James Solicitors. “We often see rape survivors’ behaviour, alcohol intake, clothing and personal life scrutinised and that can make them feel that they themselves are on trial.” 

Vincent continues: “It is largely open to interpretation when a survivor’s therapy records would be deemed “necessary” or a “reasonable line of enquiry”, so further, tighter guidelines should be provided on this.”

In a statement made to mark the updated guidance, Siobhan Blake, CPS lead for rape and serious sexual assault prosecutions, said survivors should “not worry” that seeking the support they need will influence court proceedings and made it clear that wellbeing should come first.

“The wellbeing of victims is paramount in every investigation,” Blake said. “Balancing a victim’s right to privacy with a suspect’s right to a fair trial is a sensitive issue. That’s why we are clear that therapy notes should only be requested where relevant and how they may be used must be clearly explained from the outset. Too few victims are seeing justice done; we must rebuild confidence, so more victims are able to see the criminal justice process through.” 

The updated guidance has been released as part of the CPS’s five-year RASSO (rape and serious sexual offences) strategy, which aims to reverse the current decline in rape prosecutions and drive up the number of strong cases reaching court.

According to data released earlier this year, almost two-thirds of adult rape investigations are currently being dropped, a figure believed to be the result of long delays and a lack of support for victims – the latter of which campaigners believe will be made worse under the latest CPS guidance.

“We believe at a time when a person’s world is falling apart, counselling can be a vital part of the recovery process,” London’s Rape Crisis Expert by Experience Panel said in a statement responding to the new guidance. “Being denied counselling or feeling as if obtaining counselling could have a negative impact on criminal proceedings is a very conflicted position to be put in.

“The lack of support during this time can lead to high attrition rates within the criminal justice system. We also believe the relationship between a counsellor and client should be sacrosanct for both their sakes and notes taken during sessions should not be available for disclosure.” 

Rebecca Hitchen, head of policy and campaigns at the End Violence Against Women Coalition (EVAW), also issued a statement in response to the update, calling it “victim-blaming on an institutional level”.

“Once more, we’re seeing systemic misogyny from the CPS, whose inappropriate focus on victim ‘credibility’ is central to the way in which they and other justice agencies make decisions in cases of rape and sexual violence,” she said. “At every stage of the justice process, rape myths and stereotypes play a major role in whether a case is taken forward or not.”

“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. This is victim-blaming on an institutional level and a serious intrusion into victims’ rights to privacy. 

“Why are we punishing victims of sexual violence rather than perpetrators? Scrutinising therapy notes in a 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.” 

Hitchen continued: “This guidance has been two decades in the making – it is unacceptable that the CPS have chosen to ignore legal precedent and issue guidance that will prevent survivors from access lifesaving therapeutic support.”

The new guidance comes just one day after new draft legislation aimed at empowering victims throughout the criminal justice system was published by the justice secretary Dominic Raab.

Alongside giving victims of crime the right to attend parole board hearings, query an offender’s suitability for release and make it simpler for them to complain if they do not receive the correct support, the proposed Victims’ Bill will also give victims the opportunity to share their views with prosecutors before trial in certain cases. 

Sexual assault referral centres provide a safe space and dedicated care for people who have been raped, sexually assaulted or abused. If you have been raped, sexually assaulted or abused and don’t know where to turn, search “sexual assault referral centres” to find out more or visit www.nhs.uk/SARCs to find your nearest service.

Images: Getty