Don’t Subpoena our Support

Most would assume speaking to a sexual assault counsellor is confidential. This is not the case. 

If a complaint goes to Court, defence lawyers may issue a subpoena for their counselling files. Defence lawyers argue the files may have ‘substantial probative value’ or there is a ‘public interest’.  However, defence lawyers do not know if this is the case until they receive the files.

Once they have the files, which include written files, voice and video recordings of counselling sessions, they often use the content to humiliate, retraumatise and re-victimise the complainant by replaying counselling calls during cross examination. In some cases these private notes have been leaked to the media without the complainant’s knowledge.

In NSW there is confusion as to whether these subpoenas can be challenged and if they are there is a cost burden on the counselling service and/or client. This means many services do not challenge the subpoenas and for many complainants the first they know the defence and the defendant have their files is when they attend the court case.

Unions NSW is supporting a campaign led by investigative journalist Nina Funnell, Marque Lawyers, RASARA (Rape and Sexual Assault Research and Advocacy) and several people whose counselling notes were subpoenaed which caused them considerable harm. 

The Criminal Procedures Act [1] clause 295 to 299 must be amended to protect the confidentiality of people disclosing sexual assault to a counsellor in a time of crisis.