'Victims have their power ripped away': Cork psychotherapist outlines concerns about use of counsellors' notes in sexual assault court cases

A PSYCHOTHERAPIST warned that the current use of counsellors’ notes in courtrooms is only serving to ostracise abuse victims in an environment where they should be protected.

Cork psychotherapist and counsellor supervisor, Pat Dermody, said that he and his colleagues often had to hand over notes from their client’s counselling sessions for use in a courtroom.

This, he explained, is a very real fear for counsellors, many of whom fear their notes may be taken out of context. Mr Dermody also expressed concern that the process could be disempowering for sexual abuse survivors.

“Victims of abuse have their power ripped away from them,” he said. “It’s very hard to see how court empowers them.”

He explained that many fear their clients will be re-traumatised.

“When counsellors are taking notes they are very aware that what they are writing might end up in court,” he said.

“The notes counsellors keep don’t transfer well to court because you are looking at an adversarial system. That’s the way it works. Court can be a very traumatic experience for a client who has already been through so much. You are piling on so much trauma. There is always the fear about what’s going to come out. Anything that is mentioned is going to be on the table. Even if it’s something as irrelevant as them being bullied in school this might be picked up by a defence solicitor in the notes.”

Mr Dermody added that counsellors notes are being used to discredit victims.

“The legal profession like really good notes so they can fight these things. It can be traumatising for someone who is already a victim to have other stuff dredged up in court. This is what is preventing people from coming forward. I would rather go on the stand myself than have my notes subpoenaed. Although this is not something every counsellor is going to want it would be a better approach. Notes should not be admissible as evidence. Victims deserve protection, not ostracisation”

The counsellor listed the implications this may have for a client/counsellor relationship.

“What goes on in court can destroy the relationship that the counsellor builds up with a client. A counsellor could write about something that might have happened in their teen years. Therapists work with grey as opposed to black and white. It’s not always facts per se. It can be conjectures or feelings. However, the solicitor is not going to view this as such.

“Their focus is on what they can do to big up their client or discredit the other party.

“From a counsellors point of view, the courtroom experience is not particularly great. You are looking at people who are trying to make a point without actually understanding the material they are trying to make a point about. Quite a lot of colleagues - myself included - don’t want to see counselling notes used for anything like that.

“We don’t want to be involved in court. The counsellor and client relationship should be kept well outside the courtroom.”

He described the situation as a quagmire adding: “If a solicitor was writing notes about their client I doubt they would be happy for them to be out there. This is a quagmire because it boils down to the fact that notes are open to interpretation. If you have to subpoena the counsellor then subpoena the counsellor but forget the notes.”

'Courts shouldn’t be looking for these but the fact is they do'

The head of Cork’s Sexual Violence Centre voiced concern that the counselling records of abuse victims are being used as a weapon against them in court.

Mary Crilly described how counselling notes are often used in cases of sexual assault victims, despite not being requested in situations involving other forms of physical abuse. She said counsellors at the centre bear this in mind when making notes but it can come as a shock to others.

“We get asked for stuff for court all the time but the notes that our own counsellors use are so brief they can’t be used to discredit the woman,” she said. “The client might have had difficult teenage years. Something that happened to a woman when she was 15 shouldn’t have any bearing on her being raped at 22. They might have been drinking, on drugs or had a termination. This doesn’t go into the notes because it’s not relevant.

“If every counsellor only put in the minimum of notes there would be no problem. However, you get counsellors who are taken aback when they are asked for the notes.”

She described how many counsellors are taken completely by surprise when asked for notes relating to a client.

“Courts shouldn’t be looking for these but the fact is they do. We get counsellors contacting us saying they have to go to court and give up their notes. If this is being asked for them then that’s what they have to do. However, if the notes weren’t as detailed in the first place then the victim could be spared a lot of grief. The counsellors we have at the centre here have about only one for every 20 pages of notes that some other counsellors do."

She also expressed concern about outside parties being named in the notes who wish to have their anonymity protected.

“The fact is those notes may contain information about someone else in the family who was in trouble or had difficulties. A sibling may have been raped too but doesn’t want this information to get out. If a counsellor refuses to give up their notes then the other side can argue that there’s something in there they don’t want them to see. This could affect the case going ahead. It really is that serious. Counsellors need to be watchful about what they put in their notes and whether it’s actually relevant.”

She said the court’s treatment of sexual abuse victims has not changed since she began the charity decades ago “Girls are still discredited and judged depending on their background. This is being proven time and time again. Even if someone was fighting a lot with their family in the past this information can be used to discredit the victim. The way information is used is completely inappropriate. I could blink in court and be back 30 years ago. Nothing has changed.”

Despite her disillusionment, Ms Crilly said she has to remain composed to support her victims in court.

“You have to remember that you are there for the victim. All you can do is support them. The barrister on the other side might be brutal but they could be on your side defending another victim the next week.”

To find out more or to get in contact with Sexual Violence Centre Cork visit  sexualviolence.ie or call 1800 496 496.