A COMMITMENT BY the previous government to ban outright the use of rape survivors’ counselling notes as evidence in trials is likely to be rolled back, The Journal understands. 

Survivors of sexual violence have been questioning the justice of their private counselling notes being used as evidence in court cases and have been pushing for an outright ban on the practice.

Last month, Susan Lynch, a woman who was raped by her former partner, said in her victim impact statement that she did not receive any counselling because she thought the notes from the sessions would be used against her.

Former Justice Minister Helen McEntee had been a keen advocate for a ban, stating in the summer that she was hopeful the preparatory work to end the practice would be complete before the end of 2024. 

However, concerns that an outright ban would interfere with a person’s right to a fair trial have hindered progress.

New Justice Minister Jim O’Callaghan is understood to be examining the potential next steps, including adjustments to the legislation, “as a matter of urgency”.

During the summer, then-Taoiseach Simon Harris said his understanding was that the government planned to outlaw the practice, but the 2025 Programme for Government merely commits to “amend laws on counselling notes disclosure”.

One senior government source told The Journal that an outright ban is “difficult” and “not straightforward”.

It is understood the Department of Justice was exploring a number of different options before the general election in November and that these should be almost ready for consideration by the new Justice Minister. 

A top consideration is ensuring an appropriate balance between the rights of a victim to privacy and to seek counselling help and the right of a defendant to a fair trial.

One option being explored would be to make it more difficult for counselling notes to be used as evidence, rather than banning their use altogether. 

However, no decision has yet been made on the way forward. 

Speaking to The Journal, Rachel Morrogh the chief executive of the Dublin Rape Crisis Centre (DRCC) said “no victim should ever have to choose between counselling and court”.

Morrogh said the DRCC welcomes the Programme for Government commitment to amend the law but said victims’ willingness to come forward and make criminal complaints is low and the probability of having their counselling records disclosed adds to this. 

A spokesperson for the Department of Justice told The Journal that any changes to the law must be very carefully considered to “avoid the risk of a constitutional challenge to their right to a fair trial”.

“Minister O Callaghan is aware of concerns expressed by victims and our NGO stakeholders and has asked the Department to finalise this work and present him with proposals quickly,” the spokesperson said.