Long waits for justice, confidentiality breaches and the re-traumatisation of victims
Survivors of rape and sexual assault are repeatedly re-traumatised as a result of the crown court’s backlog and the use of private counselling notes in investigations. Victims are being let down over and over again by the justice system, and things urgently need to change.
A report from Rape Crisis England & Wales shows that the backlog of rape and sexual assault cases in the UK is at a record high, with adult rape cases taking an average of two years to reach completion and child sexual abuse cases taking almost two years just to go to trial.
Since the report was published in March the number of cases waiting to go to court has risen again to 8,741, with 2,210 of these being adult rape cases, a 200% increase since 2020. The data in the report shows that from 2019–2020 compared to 2021-2022 there has been a 133% increase in the number of trials postponed at least once and the number of rearranged trials has more than doubled. There have also been 5 times as many trials rescheduled 6 or more times [1]. As well as this, several cases that should have been handed over to the CPS are being dropped by the police, meaning victims don’t have a chance to get the justice they deserve.
The number of rapes being reported are double that in 2015-2016, meaning significant changes need to be made to how the police and the Crown Prosecution Service handle the backlog of cases to prevent it from continuing to increase [2]. These statistics are shocking and this backlog has resulted in victims losing confidence in the justice system and choosing not to continue with the process. It leaves victims feeling like they have been forgotten about and are unable to move on and heal.
It is not just the long waits for justice that are affecting victims; police are routinely asking for access to victims’ private counselling notes and other third-party materials such as GP records, and school records. These notes can then be accessed by defence lawyers, prosecutors, and even their rapist. Although victims must consent for this material to be disclosed, they often feel pressured into doing so to prove they have nothing to hide and if they don’t there is a chance their case could be dropped, this “undermines confidentiality and jeopardises a safe therapeutic space”. In addition, true consent can’t be given under the Data Protection Act as a person must be able to refuse without being faced with negative consequences.
The current guidance given by the CPS [3] means victims are unable to get support through therapy and seek justice at the same time as they are told not to get counselling while the investigation is ongoing. Delaying this support only prolongs victims' trauma, and, along with the long delays, this can be detrimental to their mental health [4].
“I’d given my phone, my therapy records, my social care records, my everything to this case. I feel like I am the one being investigated whilst he roams the streets. This has been horrific for my mental health... I spent a long time with him being traumatised yet even longer by the police and CPS being re-traumatised.”
(Breaking Point, Rape Crisis [1])
Rape and sexual assault cases are the only crimes where such a significant amount of personal information is used as a way of discrediting the victim. The main reason for this likely stems from the rape myth that lots of women lie about being raped or sexually assaulted, which is completely untrue and has contributed to the systemic misogyny within the justice system [4].
83% of survivors don’t tell the police what has happened to them because they feel it will be embarrassing and they won’t be supported [5].
The system is leaving victims feeling unable to get the support they need, prolonging their trauma, or knowing if they do it will likely be used to humiliate and discredit them. This isn’t the only problem though; these requests are putting more strain on police forces which already have a lack of time and resources, which is further adding to the delays [4].
Another issue is that under the current law, it is difficult for victims to prove they didn’t consent to sexual activity which places an unfair burden on them and “maintains harmful gender stereotypes” as it assumes men are always the initiator and women must say ‘no’. This current approach also allows perpetrators to believe they can manipulate and pressure their victims into sexual interactions without meaningful consent.
Dr Proudman, founder of Right to Equality, believes affirmative consent should be in the law to help create a culture of respect and emphasise the importance of communication around sexual interactions. Affirmative consent is an active, voluntary, and mutual decision to engage in sexual activity. It highlights the need for clear and enthusiastic consent rather than just the lack of a ‘no’ [6].
How do we resolve this?
Many problems need fixing in order to create a safer justice system that will support victims, and a number of solutions have been suggested to make this possible.
One solution Rape Crisis has suggested is that all sexual violence cases should be fast-tracked, this would mean these cases are given priority so the process is a lot quicker and the CPS can deal with the backlog of cases. There should also be clear communication so victims are made aware of any changes to the trial, as many are left waiting long periods of time for information [1].
‘Keep Counselling Confidential’, another report by Rape Crisis England & Wales, offers some solutions for creating a safer justice system in which victims don’t have to choose between consenting to share private information and risking their case being dropped. They suggest having a higher threshold, only allowing access to counselling notes if it would otherwise be a threat to the defendant's right to a fair trial, and where every request must be approved by a judge.
A law passed over 20 years ago in New South Wales, Australia, which has a criminal justice system very similar to the UK’s, proves that creating a safer justice system is possible. This law protects the confidentiality of victims’ counselling records by ensuring that this information is of ‘crucial evidential value’, which is determined by a judge. A ‘confidential harm statement’ to make judges aware of any sensitive information in the victim’s records can also be considered, this explains the distress the victim is likely to experience if their records are used. As well as this, victims have a right to argue that their records don’t meet the threshold for disclosure and they have access to specialist legal advocates who advise and represent them so their privacy is protected.
Creating a new system that supports victims is essential and this can be done by implementing a new law like the one in Australia to help keep victims’ counselling notes confidential. It would mean requests for records could only be made by a judge once the suspect has been charged and any information found could only be used at trial if it counted as significant evidence. Victims would also have access to a specialist lawyer to help them decide if they’re okay with handing over their notes [4]. This would stop survivors from being re-traumatised by having their personal information used against them and having to delay getting support.
Rape crisis is asking MPs to support a new clause in the Victims’ Bill [7], which would stop counselling notes from being used in most trials. Changing the law to include this would give victims the right to access counselling or therapy without the worries they are currently facing, while still giving the defendant the right to a fair trial.
Another way to stop victims from being re-traumatised and humiliated during trials is by adopting affirmative consent.
Right to Equality is looking into the impacts of affirmative consent laws. They have appointed Oxford University to research consent laws in other countries, such as Australia and Canada, with a focus on affirmative consent. This will offer insight into the number of ways affirmative consent can be incorporated into legislation.
Affirmative consent laws can challenge the harmful stereotypes that are rooted in the justice system, and implementing them would be extremely beneficial in changing how victims are treated in sexual violence cases. Affirmative consent laws shift the responsibility to the person engaging in sexual activity to get clear and enthusiastic consent from their partner. It would make it clear that consent is not only necessary but also an ongoing process throughout the interaction. Using evidence from their research, Right to Equality will push for affirmative consent laws to be implemented in the UK.
As well as changing how consent is viewed by the justice system, it would also change people's attitudes towards consent and how important it is to focus on more than just the absence of a ‘no’. These changes would allow survivors to feel empowered rather than humiliated and unsupported, giving them the validation they need to seek justice [6].
For more information about reporting and recovering from rape and sexual assault, you can contact Rape Crisis: 0808 500 2222.
You can find your nearest Sexual Assault Referral Centre here. You can also find support at your local GP, voluntary organisations such as Rape Crisis, Women's Aid, and Victim Support, and you can report it to the police (if you choose) here.
Written by Shannon Fitzpatrick, Thrive Research Hub Member
References
[1] Rape Crisis, 'Breaking Point: The re-traumatisation of rape and sexual abuse survivors in the Crown Courts backlog'
[2] 'The Rape Review - Two Years On'
[3] CPS, Pre-Trial Therapy
[4] 'Keep Couselling Confidential: The problems and solutions with the disclosure of counselling notes'
[5] Rape Crisis, 'Rape and Sexual Assault Statistics: sources'
[6] Right to Equality, 'Affirmative Consent'
[7] GOV UK, 'Draft Victims Bill'
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