RECENTLY, SEXUAL VIOLENCE survivors and therapists gathered in heavy rain on the steps of the Department of Justice to deliver a message, a message symbolised by the carrying of large bags of shredded therapy notes to its door.

It was a quiet, dignified delivery, with a very clear message: ‘My therapy notes are private, and are not for anyone else. This is the only form in which you’ll receive them’.

It might seem odd to even consider the notion of private therapy notes being anything other than private, but this is the situation in Ireland at the moment. Unlike many other countries, a survivor’s private therapy notes can be requested by the defence in a sexual assault trial.

This means that the person accused of the crime, along with their legal team, of course, has access to the survivor’s most intimate thoughts, most harrowing memories and details of every and any aspect of their lives.

Imagine for a moment being a survivor of sexual assault or abuse and making it to court, which around 4% of reported cases do, of which about 33% result in prosecution. You’re facing perhaps the hardest or second hardest experience of your life, and then you have to ‘defend’ why, at one point two years ago, you decided that you must actually be to blame because you did not scream. Or kick. In fact, maybe you stayed still?

It’s important to note that I have yet to come across someone who experienced a sexual assault and didn’t blame themselves, either at some stage or always.

And to then have all of that thrown in your face in court. After all, you went to meet this person? You dressed up? You had a drink and went to their home? And then maybe it’s pointed out that you told your therapist that maybe, actually, it was really your fault, as you put yourself in this position. The court then asks… why are you here today, crucifying a well-liked member of the community? And on it goes.

This, of course, sounds barbaric and unthinkable, but that is the reality of what happens, as many cases have illustrated.

Breach of trust

Reform of the use of therapy notes in such cases was promised, and many had hoped that this violation and retraumatisation of survivors would be completely outlawed. But what has emerged is the recommendation from Justice Minister Jim O’Callaghan for ‘further judicial oversight’ when determining whether therapy records can be passed to the defence as evidence.

This is not real change, but another layer of bureaucracy, allowing something that should never even be a remote possibility in the first place. The reasoning given is based on Ireland’s Constitution, which the Attorney General holds as a blanket ban being incompatible with the defence’s right to a fair trial, to all the ‘evidence’.

The problem with this is that therapy notes are not ‘evidence’, they are deeply private, fluid, fragmented and at times searingly painful records of a person’s trauma, pain, confusion and agony. There is nothing that can justify this being accessible for scrutiny; it is morally indefensible.

Amendments have been made to our Constitution in the past, so it’s not an impossible thing. If a Constitutional amendment is what it takes, if we truly take survivors’ pain seriously in this country, as the government keeps claiming, then that is what must be done.

I understand and applaud the ‘shredded therapy notes’ delivery. Sometimes, outright refusal is what it takes. As a therapist of over 20 years, I have been asked for therapy notes on a few occasions, sometimes by my clients or former clients’ legal team and occasionally by An Garda Siochana. Even in the instance of a client’s request, I am deeply hesitant. Once entered into evidence, these notes can also be seen by the accused’s defence team. On the occasions where I had to submit notes, a very thick black marker has served me well.

Aside from protecting the identifying information of others, anything recorded in them — including my own reflections, a client’s report of a ‘good day’, or a difficult session in which the client expressed self-blame — that blame can be, and often is, used against the survivor by the accused’s defence team. That is their job. It doesn’t matter if they believe their client to be guilty; they will use everything they can and adapt it to their own narrative to defend their client, because that is what they are paid to do.

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Sexual abuse in Ireland

Statistically, 40% of people reading this will have been sexually assaulted at some stage in their lifetime. I would argue that the figure is likely much higher, and if you have been fortunate enough not to have experienced this, there is an even higher likelihood that you know someone who has.

By either imagining yourself, or putting yourself in your loved one’s shoes, think about how that would feel, what message it would ingrain in you, and how much further this would shatter your trust in others, that you could be further violated in this way, when it was help that you bravely reached out for? Only to be met with retraumatisation, with your own words used against you to call you a liar and defend the person who has hurt you most.

People who go through such experiences in court rarely fully recover from the secondary trauma. By allowing this practice to continue unabated, we condone it. Ireland has spent the past two decades confronting some of its darkest chapters regarding its silence and complicity around sexual abuse, from the Ryan Report to the Mother and Baby Homes Commission. We have been told by successive governments that survivors will be protected and taken seriously — yet this practice is the absolute antithesis of that. It is state-sanctioned re-traumatisation.

Meaningful protection and legislation demand more than slogans and empty promises. They demand that Section 19A of the Criminal Evidence Act 1992 be amended to introduce a complete and unconditional ban on the use of therapy notes in sexual offence trials.

If we accept that healing is essential to survival, then the right to heal privately, without fear of that healing being weaponised, must be protected. Healing belongs to the survivor, and no one else.