In 2022, the Crown Prosecution Service (CPS) published new guidance for prosecutors and police on pre-trial therapy. This guidance replaces earlier 2002 guidance and aims to affirm the purpose of pre-trial therapy, the victim’s right to therapy, and how therapy notes are used in court or during an investigation.
As a likely consequence of misunderstanding, stigma and attitudes towards CSA/E and sexual violence, many survivors have had incredibly invalidating and degrading experiences at every point during the criminal justice process. One of the key sources of support for survivors are therapists, yet many have their conversations in therapy scrutinised and accessed unlawfully or without consent. Some survivors are deterred by criminal practitioners from accessing therapy during an investigation or trial altogether. The new guidance is undoubtedly welcomed news for survivors and therapists alike; not only is there greater protection of the therapist-client relationship, there is also acknowledgment of the scientific basis of widely-held beliefs society holds about victims and survivors and the harm it causes.
Below you’ll find some key points on the new guidance, and how these are relevant to survivors and therapists. You can view the full guidance at https://www.cps.gov.uk/legal-guidance/pre-trial-therapy.
- People are allowed therapy.
The guidance confirms that ‘victims’ are entitled to have therapy during an investigation or court proceedings, and therapy should not be delayed nor deterred by criminal justice practitioners. Similarly, the decision to access therapy is entirely the victims’; police and those working within the criminal justice system have no role in the decision-making process other than informing them of their right to access therapy at any point.
- What is said in therapy should be seen as therapy.
Not only should the victim’s consent be acquired to access therapy notes at every possible point, the new guidance outlines that the purpose of therapy is for the person’s wellbeing. Importantly, the guidance emphasises that therapy is not an investigative measure to solely benefit criminal proceedings; its primary purpose is to foster a safe, therapeutic relationship built on privacy and trust to enable people to process and heal from their experiences. Therapy notes should be considered as for the purpose of the therapist and the client, and prosecutors shouldn’t expect verbatim notes. Similarly, the limitations of note-taking should be considered when assessing inconsistencies in accounts or disclosures.
- Therapy notes are protected for a reason.
The guidance acknowledges the detrimental impact for victims when therapy conversations are unlawfully requested and viewed by criminal justice practitioners, and states that this prevents a victim’s ability to engage with therapy and the criminal justice process. As such, any requests to access therapy notes must be considered a reasonable line of enquiry, with specific and justifiable requests formally outlined. In other words, practitioners cannot make broad requests, nor ask to browse a person’s file for any relevant information. When handling sensitive information, the guidance reiterates the duty of practitioners to comply with data protection legislation and protect the victim’s right to privacy at all costs and, in particular, only disclose evidence acquired from therapy notes to the defence once a charge has been made and a case is going to court.
- Criminal practitioners have a key role in tackling myths and stereotypes.
The guidance details the numerous ways in which trauma impacts a person, particularly in terms of the ‘fight, flight, freeze’ responses, dissociation, shame and avoidance. Not only does the guidance acknowledge shame and avoidance as real and physiological responses that mean crimes are not reported sooner and why victims don’t ‘fight back’, it also advises that when self-blaming language is used it should be understood solely as the person trying to understand what has happened to them, not as evidence of admission or guilt. In other words, the guidance is saying that there is no plausible justification for a victim’s sense of shame or self-blame to be used against them in court. In fact, scientifically, it indicates that they are trying to process what has happened to them, and thus an indicator that they have been subject to sexual violence.
- Inconsistencies in accounts are normal and expected.
Importantly, the guidance sets out why memory changes and fluctuates, and states there is little evidence to suggest that these normal processes in memory recall and account are false or inaccurate; it is simply how the brain works when dealing with memory. The guidance outlines a number of different reasons for why accounts, such as victim statements, change and appear inconsistent; it acknowledges that full disclosure of events are rare and detailed disclosure develops over time, often in therapy, and inconsistencies in accounts are entirely normal; whilst contradicting narratives are included in the investigation to follow all reasonable lines of enquiry, whether or not these inconsistencies meet the threshold for prosecution should be considered on a case-by-case basis using thorough testing frameworks, not on a whim. The guidance also tackles the belief that therapy generates ‘false memories’, and advises that there is little evidence that, if approaches and type of therapy is recognised and endorsed, therapy itself nor the therapist will bring about false memories or a narrative that didn’t happen.
So, why is this new guidance useful?
For me, the investigating officers made clear that my case would be negatively impacted because I had been receiving therapy prior to reporting CSA/E to the police and had significantly struggled with my mental health for a number of years. I was told that, mental health issues and therapy combined, it would be viewed by a defence that I was lying or had developed ‘false memories’. They didn’t request access to my therapy notes, and instead looked at my entire medical records spanning 20 years, despite the former being much more useful in terms of a line of enquiry. I certainly felt powerless, disbelieved and, bizarrely, like my therapist and I were in the wrong for talking about my experiences of CSA/E. It was maddening. Others have had their therapy notes accessed without their knowledge and utilised by the defence in court to highlight a supposed flaw in character or credibility. Some have their entire therapy notes accessed, with sensitive data unrelated to an investigation shared and scrutinised to highlight inconsistencies in their account of the crime.
In many ways, the level of understanding and attitudes of practitioners during investigations and court proceedings means that survivors have been viewed, almost ironically, as ‘guilty until proven innocent’. In short, this new guidance puts in writing what survivors and therapists have been highlighting for years; it acknowledges the importance of therapy, as well as challenges the belief that therapy hinders criminal proceedings; it provides criminal justice practitioners with a solid understanding of how trauma works and debunks much of the myths around therapy and how traumatic memories are processed; it gives protection for therapy notes and survivor privacy by confirming that any requests must be specific and relate to the investigation whilst highlighting the harm of making unfocussed requests for the therapist-client relationship; and, in many ways, the guidance also reminds practitioners to approach investigations objectively, using their lawful duty to follow any and all reasonable lines of inquiry instead of picking and choosing.
More than anything, the guidance is an acknowledgement of how little criminal practitioners have understood how trauma works, how insidious the impact of sexual violence is for the survivor, and the risk of retraumatisation for survivors when they are dealing with criminal justice proceedings.
31/07/23 – Seph