Privacy rights for sexual assault victims

By Julie Zhou | 24 Jul 18

When a victim of sexual assault sees a counsellor, the last thing she should have to worry about is whether records of her counselling session might be subpoenaed by her former partner and used in family law proceedings against her. Unfortunately, this is the reality many women face, as the Commonwealth remains the only jurisdiction in Australia without any form of protection for sexual assault counselling communications.

What is sexual assault communications privilege?

Sexual assault communications privilege restricts a litigant’s ability to subpoena communications between victims of sexual assault and their counsellors and use that information as evidence in Court. Currently, every Australian State and Territory has some form of sexual assault communications privilege.

While the design and degree of protection offered by this privilege is different in each State and Territory, all jurisdictions require that the person seeking to obtain and use sexual assault counselling records demonstrate to a court that:

  1. They have a legitimate forensic purpose for issuing the subpoena, and
  2. It is in the public interest to produce the sexual assault counselling records.

In assessing the public interest, a court will usually have to weigh up, on the one hand, the public interest in preserving confidentiality and protecting victims from further harm, and on the other, the public interest in making relevant evidence available to litigants in a dispute.

Sexual assault counselling privilege aims to encourage victims of sexual assault to seek counselling treatment by protecting the confidentiality of their counselling records. Confidentiality is the bedrock of the therapeutic relationship between counsellor and patient. If victims are afraid that what they say to their counsellors could be used against them in future legal proceedings, they may be less frank during their sessions or avoid attending counselling altogether.

Lack of protection for sexual assault counselling records in family law

Given the high rates of sexual assault in domestic and intimate partner relationships, it is alarming that the Commonwealth is the only jurisdiction without any form of sexual assault communications privilege. As family law falls within the Commonwealth jurisdiction, victims of sexual assault in family law proceedings are left with no privilege over their counselling records.

As the law currently stands, there is limited protection to prevent an ex-partner from issuing a subpoena for the counselling records of a victim of sexual assault, to be used – for example – to prove that the victim would not be a suitable parent. This also leaves the subpoena process open to the potential for abuse, where a violent ex-partner may use subpoenas a vehicle for further intimidation and control over the victim.

In practical terms, without a privilege over sexual assault counselling communications, the onus is on the victim or their treating counsellor to object to or resist a subpoena. This is stressful and traumatic for the victim, not to mention costly and time-consuming for both the victim and counsellor.

Australian Law Reform Commission’s review of the family law system

Since as early as 2006, the Australian Law Reform Commission (ALRC) has recommended that a sexual assault communications privilege be introduced into the Evidence Act 1995 (Cth) to protect the counselling records of sexual assault victims in the Commonwealth jurisdiction. However, that recommendation has yet to be adopted.

The ALRC is currently conducting a review into the family law system, which includes examining how the family law system should address the misuse of process as a form of abuse in family law matters. This presents a fresh opportunity to revisit a Commonwealth sexual assault communications privilege.

A number of organisations, including Liberty Victoria’s Rights Advocacy Project, have made submissions to the ALRC recommending that a sexual assault communications privilege be introduced into family law to protect sensitive counselling records of sexual assault victims and prevent the potential abuse of the subpoena process by perpetrators of sexual violence.

With widespread support from the counselling sector and women’s groups, how long will it take for there to be meaningful protection in family law for the counselling records of sexual assault victims?