“New” Victims Bill proposals to safeguard rape survivors’ therapy notes fall short

This week (16th May 2023), MPs debated the new Victims and Prisoners Bill at its Second Reading in Parliament.

The long-awaited Bill promises to place the Victims’ Code on a statutory footing. However, the Bill remains pretty weak and unambitious, and has disappointingly been diverted from its intended aim of improving victims’ experiences, given its surprise expansion in scope to become a Victims and Prisoners Bill. The Bill has been introduced without any protection for migrant survivors, no promise of funding, and has begun its passage through Parliament whilst the Victim’s Commissioner post remains vacant.

Along with Rape Crisis England & Wales, the Centre for Women’s Justice and Rights of Women, we are calling for legislative reforms to directly improve the experiences of survivors of sexual violence engaged in the criminal justice system.

The Victims Bill must deliver new safeguards to keep  survivors’ counselling and therapy records confidential

Counselling should be a safe and confidential space to explore feelings and heal, not to establish the facts of a case. Currently however, the police and CPS make routine and excessive requests for survivors’ private therapy notes. Because counselling notes can be shared with the police, CPS and defence, and scrutinised in the courtroom, some survivors are being advised to avoid therapy in the wait for trial – which can take 4 to 6 years and is often a time when therapy and support is needed most.

Due to institutional victim blaming in a system that aims to discredit the victim rather than investigate the suspect, many feel forced to choose between seeking justice and seeking therapeutic support, or coerced into consenting to hand over their notes to prove they have nothing to hide, and because they have been told that their case will be dropped if the material isn’t disclosed.

No one should have to make this choice. Counselling notes should be kept confidential and the privacy and dignity of survivors should be enforced by legal mechanisms that secure their rights. This call was supported in yesterday’s debate by Labour MPs Apsana Begum MP, Kim Leadbeater MP and Sarah Champion MP.

During the debate, the new Justice Secretary Alex Chalk KC announced that the Victims and Prisoners Bill will introduce statutory guidance on requests to disclose survivors’ therapy notes. However, this announcement simply reinforces what’s already in law for third party materials under the Data Protection Act 2018.

This does not go anywhere near far enough and does not meet our ask for counselling notes to be afforded greater legal protection, by raising the threshold for when a survivor’s notes can be requested by the police and Crown Prosecution Service and requiring decisions on disclosure to be made by a Judge to ensure the victim’s privacy rights are met. We’ll be scrutinising the government’s plans further, but are clear that survivors deserve a much better offer to root out this harmful practice.

Read our joint statement with Rape Crisis England & Wales and the Centre for Women’s Justice on the MOJ announcement.

The Bill must guarantee independent legal advice and representation for survivors of rape and sexual abuse who report their abuse.

At every stage of the criminal justice process, rape myths, stereotypes and victims’ perceived credibility play a major role in whether a case is taken forward or not. Victims and survivors are faced with a wide range of intrusive and often unlawful practices by the police and the CPS.

These practices aim to undermine victims and survivors, rather than investigating suspects’ behaviour, and are directly at odds with victims’ interests and justice outcomes. However, victims and survivors have no access to the necessary specialist legal advice to challenge the injustices they face when their rights are undermined and disregarded. This must change.

We’re calling for the provision of free independent legal advice for all survivors of sexual violence and abuse, to ensure their rights are respected where their interests conflict with the interests of the police, CPS and other criminal justice agencies, and to provide access to a legal professional who is ‘on their side’.

We’re pleased that Shadow Justice Secretary Steve Reed MP, along with Apsana Begum MP, Sarah Champion MP and Anna McMorrin MP supported these calls in yesterday’s debate.

The Bill must address inequalities for migrant survivors of violence and abuse.

We join a broad coalition of organisations led by and for Black, minoritised and migrant women, including Southall Black Sisters and Latin American Women’s Rights Service, in calling for the Bill to enshrine protection for migrant survivors. This must include a firewall between statutory services like the police and other frontline services, and the Home Office, and routes to safety for migrant women trapped in abuse.

Migrant victims with insecure immigration status often face an impossible choice between staying with a perpetrator or facing destitution, immigration detention and possible removal from the UK. This is because statutory services routinely share information about migrants with the Home Office for immigration enforcement purposes.

This practice is a severe barrier to justice and safety for women who are disproportionately impacted by gender-based violence, and are often marginalised with few avenues for help – routinely excluded from access to public funds and housing support, often turned away from refuge spaces, safe accommodation and welfare. The government has stated that migrant women should be treated ‘as victims first and foremost’ – the Victims Bill is an opportunity to make this a reality. 

The government should remove the Bill’s provisions on parole.

The change in title and content from Victims Bill to a Victims and Prisoners Bill was met with surprise and alarm by the End Violence Against Women Coalition and many VAWG organisations, particularly as this decision was made without consultation or pre-legislative scrutiny.

Before the Bill was debated yesterday, we wrote to the Justice Minister to advise that in our view, new proposals on parole are unwelcome and will ultimately worsen delays to the parole process, override victims rights, and shoehorn in objectives from the widely criticised Bill of Rights by seeking to undermine the universality of human rights.

In yesterday’s debate, the Justice Minister defended these proposals by referring to the case of ‘Black cab rapist’ John Worboys. However, the Centre for Women’s Justice, who represented the victims of John Worboys in the judicial review challenge of the parole board decision, have already rejected these plans.

Andrea Simon, Director of the End Violence Against Women Coalition (EVAW), said:

“The Victims and Prisoners Bill has a long way to go to deliver on its ambitions and make a tangible difference to victims and survivors of violence against women and girls.

Yesterday’s announcement of a duty in the Bill for police to only make necessary and proportionate requests for the disclosure of third-party information does not match our calls to keep rape survivors’ counselling notes confidential. Expert women’s organisations have developed a robust model to safeguard survivors’ privacy that would see requests for the disclosure of therapy notes to be decided by a judge and we want to see government deliver on this ask.

Establishing free, independent legal advice and representation for survivors goes hand-in-hand with this, and can help transform the treatment of victims and survivors engaged in the criminal justice system. Two years on from the Rape Review, in which the government admitted victims of rape are being failed, both of these commitments are long overdue.

The expansion of the Victims Bill means it now incorporates objectives of the widely criticised so-called Bill of Rights – commonly referred to as the ‘Rights Removal Bill’ which was supposed to replace the Human Rights Act as well as the protections the Act provides victims and survivors. We have long opposed these plans and join a broad coalition of groups opposing the covert introduction of these measures into a Bill that was supposed to improve victims’ experiences of the criminal justice system and access to support services.”

ENDS

Media contact

Sinead Geoghegan, Communications Manager, media@evaw.org.uk 07960 744 502

Notes

 Find out more about what the expert VAWG sector are calling for in the Victims and Prisoners Bill in our Second Reading briefing