Resisting Defence Access to Counselling Records in Cases of Sexual Offending: Does the Law Effectively Protect Clinician and Client Rights?

Abstract

The release of counselling records in the context of a sexual offending trial, when sought by the defendant, has been of concern for victims/survivors for some time. As the potential for release of records may impact on the extent of participation in therapeutic processes by complainants, as well as the willingness for complainants to engage with the criminal justice process, the subsequent use of that material should be both predictable and justifiable. In this article, significant recent procedural initiatives are examined, in order to assess current defence access to counselling records in cases of sexual offending in a number of jurisdictions. The paper provides information to sector workers and clinicians (particularly in New Zealand) regarding their rights, and the rights of their clients, to resist releasing counselling records to defendants.

Keywords: counselling records, victims, survivors, defence access

JEL Classification: K14