More than a quarter of victims in rape and sexual assault trials have had their private counselling notes subpoenaed, a new study from the Australian Institute of Criminology (AIC) has found.
Fresh data from the AIC revealed 28 per cent of victim-survivors reported that their private counselling notes were subpoenaed at trial.
The research led by Associate Professor Mary Illiadis found that of 145 sexual assault victims who responded to a survey, 28 per cent (41) had their counselling or medical notes sought during proceedings.
Those whose privacy was breached described feeling “violated”, “traumatised”, “humiliated”, “degraded”, “angry”, “haunted” and even “suicidal”.
“I felt violated and will never feel safe again knowing that my experiences could be used against me,” one victim-survivor told the researchers. “I was housebound for months and find it hard to trust people, especially medical and psychological supports.”
A second research participant commented: “My psychologist recommended I apply for victim assistance payments to pay for my psychology. I didn’t put in the application (but my psychologist) noted the suggestion in her notes. It was then used by his lawyers to say I was doing this for monetary gain.”
A third victim-survivor described how notes containing details about a miscarriage eight years prior were used to paint her as “reckless” in court.
In March, news.com.au launched the Keep Counselling Confidential campaign, after a deep dive investigation revealed that pedophiles and sex offenders were routinely able to access the highly confidential counselling notes of their victims, with some survivors only discovering the privacy breach when they turned up to court to give evidence.
In the past, services such as 1800 RESPECT have dismissed the risk of offenders subpoenaing their victim’s counselling files – including audio recordings of calls – and in 2017, a spokesperson for the government funded counselling hotline told a Senate Inquiry they had never received a single subpoena in their seven years of operation.
But a Freedom of Information investigation conducted this year by news.com.au revealed that the service in fact receives an average of one subpoena per week for victim counselling records.
In 2020, rape survivor Madeline Lane had a full transcript of her contact with 1800 RESPECT accessed by her offender and his legal team, following a subpoena to the service.
“That’s a very private and personal conversation, which you assume is going to stay confidential,” said Ms Lane, who was raped in April 2020 by Mosman man, Boyd Kramer.
“You’re so vulnerable when you’re having (that conversation). I was in a state of shock. I was just blaming myself so when the defence got that (1800 RESPECT) counselling transcript they tried to use that against me (to discredit me).”
Ms Lane has never felt safe to use the service again.
The trend has become so severe that in some states police are now warning victims of rape and sexual abuse not to access any counselling services until the criminal trial is over, as there is no way for police to guarantee that their private counselling records will be protected. That may mean a wait of two to three years with no counselling at a time it is needed most.
Other survivors have told news.com.au that they stopped accessing counselling all together once their notes were subpoenaed as they no longer felt therapy was safe.
News.com.au has also learnt of at least one team of lawyers advising survivors to access overseas counselling services because they may be more difficult to subpoena.
Since the launch in March, more than 14,000 Australians have signed the petition to safeguard counselling and medical records.
In response the NSW and Victorian Governments have agreed to review the relevant legislation and NSW Attorney-General Michael Daley has commissioned Professor Rita Shackel at the University of Sydney to spearhead an inquiry with results due back in June next year.
At the federal level, the Labor Party has also pledged to work with the states and territories to protect sexual assault counselling notes.
At the recent National Labor Conference in Adelaide a formal motion was passed stating “those who experience sexual assault must be guaranteed safety and confidentially in recovery, however defence lawyers routinely subpoena sexual assault counselling communications, including written, audio, and video recordings”.
“These private communications are used in court to intimidate and then undermine the credibility of complainants, where their words can be used against them. Labor recognises the harm caused by this as systems abuse. Labor also recognises the vicarious trauma this has on counsellors and support workers. Labor will work with states and territories to protect sexual assault communications from subpoenaing,” it said.
Dr Karen Williams, a consultant psychiatrist and the founder of the charity Doctors Against Violence Towards Women, said the impacts of subpoenas are devastating for both victim-survivors and professionals alike.
“As a doctor, I don’t really want to tell a traumatised woman ‘by the way, these notes are not really confidential. They may be subpoenaed by your (abuser) in five years time, but please, do go on’,” Dr Williams said.
She said sexual assault survivors already face multiple barriers to disclosure and the threat of subpoenas renders support-seeking even harder.
“I see this reality every week. Women sit in my consulting room and ask me not to take notes. They ask me not to record our sessions. They come without their phones … Some ask me not to put the appointment through Medicare (as Medicare records can be subpoenaed),” Dr Williams said.
“These women are not being paranoid. They are being precise. They have learned, through experience, exactly how far their abuser’s reach extends. And right now, our legal system is proving them right by allowing their most private disclosures to be subpoenaed and handed to the very person (who has harmed them or) who they are trying to escape.
“This is why counselling confidentiality is not a legal nicety. It is a matter of life and death.”
Dr Williams, who heads a network of 750 medical professionals says that another perverse outcome of subpoena-culture is that professionals might limit their note-taking, take notes in pencil, or devise other workarounds to try to keep clients safe, but that these strategies can also compromise healthcare consistency.
Dr Williams has formally endorsed the Keep Counselling Confidential petition and says legislation must be urgently amended to protect these records.
“We are proud to support the Don’t Subpoena Our Support campaign … When a woman tells her counsellor what happened to her, she deserves to know that conversation is safe,” she said.
The NSW inquiry will report back in June 2027.
Nina Funnell is a Walkley Award-winning journalist and the creator of the Keep Counselling Confidential campaign. In June, she was named Freelance Journalist of the Year at the Mid-Year Walkley Awards for her reporting on this campaign.