Sexual Assault: Counsellor Notes and Subpoenas (Lucas, 1999)
Di Lucas writes that many survivors of sexual assault feel they are on trial and “for legal purposes they are witnesses to a crime against the State”(Lucas, 1999), as such they have to be cross examined by solicitors in an attempt to prove they did not consent. Since the 1970’s, women’s groups have been the drivers of change in law reform in Australia and The Evidence Amendment (Confidential Communications) Bill, 1997, which was passed in NSW is no exception. The amendment was as a response to concerns around counsellor notes being subpoenaed for use in defending perpetrators of sexual assault. This article details the catalyst for change where in 1995 the Co-ordinator of the Canberra Rape Crisis Centre (CRCC) was subpoenaed to provide counsellor notes. Whilst the CRCC complied with the subpoena to attend court they would not hand over the documents which resulted in the Co-ordinator being charged and incarcerated. The actions caused a massive public response which resulted in the legislation amendment. (Evidence Amendment (Confidential Communications) Act, 1997).
This is particularly important given the high ratio of judges and magistrates are “older white Anglo Saxon men without a deep understanding of the effects or seriousness of violence against women” (Lucas, 1999). Whilst this legislative amendment was reactive to the needs of the sexual assault sector the CRCC would like to see an absolute privilege on the process of subpoenaing counselling notes. Accredited counsellors are bound by their code of ethics to ensure they do the best by their client. In particular – “restrict any disclosure of confidential information about clients to furthering the purposes for which it was disclosed.” (Counsellors Victoria Inc, 2011). It would not be difficult to ascertain the bias in decision making in regard to the release of counsellor notes both from the counsellors perspective and the defence solicitors.
Counsellors must feel safe in the knowledge that their note taking will not be used against the client, and that they will use their best ethical decision making process in dealing with any ethical dilemmas or any instances where there is a risk to the safety of the client or to another person. It is clear that the views expressed by the author (and reflected by the organisation) are in response to the high numbers of sexual assault survivors who do not get access to a fair justice process and who may be unwilling to attend court for fear of further attacks on their dignity. The controversy partly lies in the funding model where both the lawyer for the defence and the CRCC are being funded by the same State Government. Whilst justice should be available for every citizen we must also take into consideration the need for rational thinking and compliance by the justice system to apply ethical decision making to the purpose of their subpoenaing counsellor notes.
“Di Lucas worked at the Canberra Rape Crisis Centre (CRCC) until 2002.
During her 14 years there she was involved at both local and national levels
in activism to eliminate violence against women and children. This included
involvement in policy development, law reform, community development, and
education in schools as well as providing counselling and support to
survivors of male violence. She was a member of the National Committee on
Violence Against Women (1990 – 1993), and a founding member of the
Women¹s Services Network (WESNET) and the National Association of Services
Against Sexual Violence (NASASV). Her experience at CRCC was an
opportunity to continue grass roots activism in paid employment for which
she is eternally grateful. She is now waiting to see what the future holds for
her in a professional sense.”
Counsellors and Psychotherapists Association of Victoria Incorporated. (2011). Code of Ethics.
Evidence Amendment (Confidential Communications) Act (1997). NSW.
Lucas, D. (1999). Sexual assault: Counsellor notes and subpoenas. Psychotherapy in Australia, 5(2), 64–66.