A VICE investigation in May found that rape and assault survivors going through the legal system are being advised against discussing their attack during therapy. According to CPS guidelines, notes from these counselling sessions can be used during their assailant's trial.
The expose has led to calls for urgent reform from Shami Chakrabarti and sexual violence campaigners. But what is it to have your therapy notes admitted as evidence in court?
Chloe,* 45, an admin assistant from Warwickshire, reported her childhood sexual abuse to police in August 2015. Her case formed part of a broader trial against a single perpetrator including other abuse allegations from different complainants.
Her abuser was found not guilty of the charges Chloe brought against him, but the jury was hung on the remaining counts. The case was re-listed for trial and she was called to testify again against her abuser. Her counselling notes were used against her in court during both trials.
When I was 35, I started a job in London. I was working just around the corner from the flat where this man who was a friend of my dad’s growing up used to live. When we were kids, he’d come over to our house for dinner and parties, and he would sometimes come up to me and my sister’s bedroom on the pretence of reading us bedtime stories. Every day, I’d walk past the flat and think I was going to see him. I was looking over my shoulder the entire time.
I realised I needed to go to counselling, to help process a lot of emotions. I had a lot of anxiety around my childhood, and I was also about to become a parent, and I was worried about that too.
During my counselling I had a realisation that I had been sexually abused as a child by him. I remembered what happened vividly. He was sitting on the bed in our bedroom, masturbating. You know how you can have those sudden moments of realisation and understand what something is? It honestly felt like the memory had been projected onto the wall in front of me, and I turned and looked at it with my adult understanding of the world and understood what it was properly for the first time.
My sister got the worst of the abuse, and she went to the police to tell them what she knew. A trial was set. Not all of the charges applied to my sister and I. Our abuser had other victims. It took some time for the Crown Prosecution Service to build a case, but eventually we went to court in July 2018.
Before the trial, the police asked me if they could have access to my medical records, including my counselling notes. You don’t have to give permission, but the defence know if you’ve refused, and they can twist it to make it look like you’re withholding information from the court. I just felt like I wanted them to have access to everything, so they could see I was being completely transparent.
I’d always known that my sister had been abused as a child, but in my head, I told myself that it happened to my sister, not to me. It was my coping mechanism. I told myself that my sister was the victim, not me, and that whatever happened to me, what happened to her was worse. It was only through counselling that I realised that I was a victim too. But the defence used that against me during the trial. They pulled up my counselling notes, and said, “Your counsellor is the one that told you you’re a victim, so therefore you now think you’re a victim.”
The defence’s main argument was that because I hadn’t mentioned the abuse before I went to counselling, it was a false memory that had been planted by my sister and drawn out in therapy. They said I was just going along with what my sister, who had been abused, had told me. They made out like it was all a complete fabrication.
The defence counsel said that because my memory came up during therapy, it was a false memory – even though false memory syndrome [a controversial and unrecognised medical condition in which people are affected by factually incorrect memories] has been discredited. They didn’t call my counsellor to testify on my behalf either, because there wasn’t time. When my counsellor found out what had happened, she was furious and upset for me.
He was acquitted of the charges I brought against him in that trial, which was devastating. The jury was hung on the other charges by other victims, including my sister, so a retrial was held for the following year. It was during this second trial that I was called to testify in support of my sister’s abuse allegations, and to show bad character on his part. And, just like in the first trial, they used the notes against me in the second trial.
My sister – not the one who had been abused, but my older sister – had been instrumental in persuading me to go to therapy. In my counselling notes, I talked about how my sister had supported and encouraged me into counselling, but I felt like she abandoned me once I got there, because it was painful for her to listen to. There was one sentence in my notes where I talk about how I felt unsupported by my sister after I started therapy, and I said “I felt like I’d been led to a dark place, and left there.”
The defence used that to say that my other sister – the one who had been abused – had coerced me into going to counselling, and led me to believe I was a victim. Thankfully, their tactic didn’t work this time, and he was found guilty of indecent assault, gross indecency with a child, rape, sexual activity with a child, and making indecent photographs of a child.
Having your counselling notes used against you in that way is a shock. You feel really, really vulnerable. I was also furious. It felt so wrong that the defence barrister was using my private notes to score points off me. You’re so vulnerable when you’re in counselling, you’re opening yourself up to someone, and to have someone go through your notes and take them out of context is a traumatic experience.
Looking back at the trial, I felt like they’d used my most personal counselling notes to make me out to be a liar. It’s horrible to remember it. It felt like being slapped – even now, it still stings.
* Name has been changed