Read Shadow Attorney General Shami Chakrabarti's op-ed on why a Labour government would introduce a review of this policy here.
Rape and sexual violence survivors with ongoing court cases are being told not to seek therapy by police and specialist services, forcing them to choose between accessing mental health support or abstaining for the best possible chance of securing a conviction – and endangering their mental health in the process.
Existing guidelines from the Crown Prosecution Service state that complainants in sexual assault cases should not discuss the details of the attack with therapists – and if they do, should be prepared that the notes from their therapy sessions may be admitted in evidence in court. The guidance, last updated in 2002, reads: "Records of therapy (which includes videos and tapes as well as notes) and other contacts with the witness must be maintained so that they can be produced if required by the court." It also states that accessing therapy before the trial may impact the credibility of the witness's evidence and the weight afforded to it: "Pre-trial discussions [including therapy] may lead to the allegations of coaching, and ultimately, the failure of the criminal case."
This guidance is used to guide best practice in criminal cases in England and Wales, and states that it is aimed "primarily for the assistance of therapists, those who commission or arrange therapy and lawyers involved in making decisions about the provision of therapeutic help prior to a criminal trial". Similar guidance also exists in Scotland.
Sophie, whose name we have changed for legal reasons, reported her rape to the Metropolitan Police in October of 2017. The 23-year-old was taken to a specialist sexual assault referral centre, where she alleges she was told "pretty much straight away" by specialist workers that she should not seek therapy – and that her therapy notes could be requested and used in court if she did.
"I was literally told the words, ‘You are not allowed counselling, because if it goes to court – which obviously, we know a lot of them [survivors] don’t – the notes can be used against you," she tells VICE.
Sophie says that her "mental health madly deteriorated" as a result of being unable to see a therapist. She couldn’t work and was signed off sick by a doctor, and also ended up homeless as she felt unable to return to the house where the assault took place. (After five months, she was placed in emergency accommodation by her local council.)
Experts say that complainants are discouraged from speaking about their assault in therapy due to fears that it might affect their testimony – a critical piece of evidence in any criminal case. "The CPS is concerned that the evidence someone might give is contaminated by that therapy," says Dr Nina Burrowes, a psychologist who specialises in sexual abuse cases, and an Edinburgh Rape Crisis patron. "Perhaps, through the therapy, you will be suggestible by your therapist and remember things that didn’t happen. Or that simply by talking [about the] offence repeatedly, you’re somehow rehearsing evidence… They’re [the CPS] worried about somebody being coached so they give evidence more effectively in court."
Criminal barrister Grace Ong confirmed that complainants in rape trials tend to be advised not to access therapy at some point during the case: "It will be either the officer in the case or the Sexual Offences Investigation Team Officer who advises the complainant on whether or not to access therapy until after the trial has concluded."
One charity believes that the fear that a complainant’s credibility may be damaged if they appear too composed on the stand reinforces inaccurate stereotypes about rape and sexual assault victims. "We would be worried that the police and prosecutors are concerned that a woman discussing a traumatic incident within therapy could lead to concerns that she may sound rehearsed," says Rebecca Hitchen of the End Violence Against Women Coalition (EVAWC). "That plays into really damaging myths around how people present after going through trauma – for example, if a woman who is being cross-examined or asked to describe what took place sounds calm, then it may lead the jury to suspect that she’s not telling the truth."
These myths, Hitchen adds, continue to persist throughout the criminal justice system: "It’s because the justice system as a whole doesn’t understand sexual violence and the impacts of trauma. It’s really concerning."
"People expect rape victims to look and act with a certain demeanour in court," agrees Professor Nicole Westmarland, an expert in sexual violence at Durham University. "What they expect isn’t somebody who has had therapy and is feeling a secure person within themselves, even though what has happened to them has been terrible."
The criminal justice system does encourage victims of sexual violence to access pre-trial therapy, provided by specialist services, if needed. However, those in therapy are instructed not to discuss the sexual assault or rape that is the subject of their complaint.
Sophie, who is currently undergoing this limited form of therapy, believes it is not fit for purpose. "It's therapy where I can’t speak about what’s happened – it’s ridiculous," she says. "When I tell people [that I’m not allowed to talk about the assault] they’re shocked. Everything that has happened and the way I’m feeling is a direct result of that incident, yet when I go to these therapy sessions I’m not allowed to talk about it, and I’m aware that when I do, I’m either going to be stopped or I’m going to be warned against it."
Rape Crisis South London is a specialist service that currently offers similar pre-trial therapy to people in London. Its CEO, Yvonne Traynor, confirms that victims are told not to discuss their assault. "We offer pre-trial therapy, but it’s not really therapy – what we call it is grounding sessions," she says. "For women who are traumatised because of what happened to them… [it gives them] a confidential space and an opportunity to offload how they’re feeling."
Many survivors find this experience to be helpful, Traynor adds. However, the sessions never "approach the subject of the incident itself… at the moment, the guidance is very clear that they can talk about their feelings, they can talk about their daily lives, [but] they just can’t talk about what happened to them".
Victims who do talk about their case with their therapist may be asked to have their case notes admitted as evidence in court. In most instances, consent must be provided for these notes to be used, but Hitchen of EVAWC worries that they may feel compelled to do so to ensure their case has the best possible hope of success: "It’s not exactly a free choice when women are generally told that if they don’t give that consent and don’t allow access to their medical record counselling notes, then it’s very unlikely the case will proceed to the next stage of the process."
Although reliable data is not publicly available, advocates working within the sexual violence sector say they have noticed a rise in the use of counselling notes in court. "Before, counselling notes weren’t requested as much, but there has definitely been an increase in requests made for those counselling notes as part of the criminal justice process," Hitchen says.
Traynor of Rape Crisis South London confirms this: "We get asked for these notes all the time." She says she has also personally observed an increase in requests for counselling notes from police: "They’re asking for notes more and more."
Being told not to speak about a profoundly traumatic event can be devastating for survivors going through the criminal justice system. Lucy – whose name we have changed at her request, to protect her privacy – went to the police in 2017 to report a historic incident involving sexual assault by penetration.
A few months after her initial report, the 26-year-old from London was told of the restrictions around therapy by the lead police officer investigating her case. "You have this thing that you are carrying around that you literally cannot talk about to your friends, your family, your therapists, anyone," she says.
As her case progresses through court, she worries about how long she can hold off from accessing specialist support. "At what point do I become unable to cope with it as the case goes on?" she says. "That’s the worrying thing. I’m fine now, but what if, in a year or two’s time, I snap? That’s always in the back of my mind."
This trauma may be compounded by the fact that cases can wind their way through the system for years before going to court – if they make it to court at all. Rape prosecutions in England and Wales have fallen to a five-year low, with a Guardian investigation revealing that prosecutors have been encouraged to take a risk-averse approach to cases. Many in the sexual violence sector are concerned by the length of time that victims are being told to go without therapy.
"Reporting a sexual offence to police, and that case actually reaching court, can take two years," explains Katie Russell of Rape Crisis, the national organisation for sexual violence survivors. "That’s not uncommon at all. And that’s obviously an extraordinarily long period of time for any victim or survivor to unavoidably have to relive and continue going over the details of what’s happened to them, of what might likely be the most traumatic thing that’s happened in their lives. It’s an especially long time if they feel, or they are advised, that they shouldn’t receive specialist support."
"I’m only ever going to be able to talk about this when the trial is over, and who knows when that’s going to be," says Lucy, who has spent two years unable to access specialist support while her case winds its way through the judicial system. "It’s already been a really long time."
In April, it was widely reported that police would ask rape victims across England and Wales to hand over their phones or risk having their cases dropped. A public outcry around these so-called "digital strip searches" followed, with victims rights groups planning a legal challenge to the guidance. Russell believes that the government should also review the use of counselling notes in court: "At Rape Crisis we’ve been calling for a full review and overhaul of the criminal justice system, because we believe it routinely fails victims and survivors in many ways."
Any forthcoming government review, she adds, "should include consideration of whether counselling notes can be considered appropriate or relevant evidence to be used during a criminal case".
Over the course of conversations with sexual violence advocates and victims, it becomes clear that there is profound uncertainty about what complainants can and cannot say about their attack, and who they can speak with. This enforced silence can be nerve-wracking. "I feel really nervous to talk about it, because I don’t want to jeopardise the case – even now, I’m so nervous of mentioning anything," Lucy says. "You live in a constant weird bubble, where I have this massive thing going on, but I actually can’t talk about it with anyone."
Discouraging victims from accessing mental health support may have other unintended negative effects. The UK has one of the lowest conviction rates for rape in the world, and many victims drop out of the criminal justice process in a process of attrition as their case progresses through the courts. Some advocates believe that allowing victims to access full therapeutic support would help prevent them from dropping out. "One of the things we need to recognise is that therapy isn’t a problem, it’s an advantage," says Burrowes. "Everybody wants a supported witness."
The inability to access mental health support throughout a lengthy criminal trial can have devastating and profound consequences. "The real life impacts of women not being able to access specialist support services are severe and far-reaching," Hitchen says. "It can result in suicidality, or turning to other forms of coping mechanisms, such as alcohol, drugs [and] self-harm. It can result in increased anxiety, depression… lack of employment, break down of relationships, struggling to care for dependents. The range of impacts can be really, really vast."
Lucy tells me that she desperately wishes she was able to access comprehensive therapy. Trying to explain how she’s feeling to her "friends or my family is a bit of a non-starter … a trained professional would help". Being left without therapy "just feels like it’s you, by yourself", she tells me. "It’s a very isolating feeling."
Those working within the sexual violence sector have expected the CPS to update their guidance on therapy for some time. Whether the policy will continue to deter victims from accessing many supportive services remains to be seen, but until the CPS updates its guidance, women like Sophie and Lucy will struggle without the comprehensive support they need. "I need actual therapy and counselling," says Sophie – although she’s resigned herself to the fact that this might not be possible until after the trial. When her trial is complete, Sophie plans to campaign for other survivors to have access to the kind of support she never received.
There may be some political movement on the issue, too. After being contacted by VICE UK, Labour's Shadow Attorney General Shami Chakrabarti said she found the use of rape counselling notes and the guidance around rape victims accessing therapy to be of great concern.
"The suggestion that rape victims should avoid vital mental health treatment for fear of prejudicing trials is as cruel as it is clumsy, and the poorly drafted CPS guidance appears to be at least 17 years old," Chakrabati told me. "As with the scandal of 'digital strip searching', these revelations demonstrate an underfunded criminal justice system on its knees. There must be an emergency review of any such policy. A Labour government will work with both mental health and legal professionals to ensure that all victims receive both the care and justice they need, and that the disgraceful drop in rape prosecutions is reversed as a matter of urgency."
Until that guidance is changed, victims will continue to have to choose between prioritising their mental health or holding out in the hope of justice. It's an impossible choice: "No one should have to go through what I have," Sophie says.
When asked for comment, a Ministry of Justice spokesperson told VICE UK: "It is vital that victims are confident they will be treated with the utmost fairness by the justice system. The court would only order the disclosure of counselling notes, after hearing views from the defence and prosecution, if there were real grounds to believe the evidence could affect the outcome of the case. Guidance from the Crown Prosecution Service actively encourages the provision of any emotional support or therapy that the witness may need pre-trial."