Ms Ellen O'Malley-Dunlop:

The Dublin Rape Crisis Centre welcomes the opportunity to present on the proposed sexual offences Bill. The centre has operated as a front-line service for victims of rape, sexual assault and childhood sexual abuse since the 1970s. Our submission addresses four areas in which we believe change is necessary, those being, the disclosure of counselling and psychotherapy notes in the criminal justice system; the need for a definition of consent in the proposed new legislation; that non-exploitative sexual expression between young people is decriminalised by reference to a close age difference; and that the age of consent of sexual activity be retained at 17 years.

Regarding the disclosure of counselling and psychotherapy notes, the committee knows from our detailed submission that substantial work has been done with the support of the Public Interest Law Alliance, PILA, which provides a comprehensive overview of the procedures governing the disclosure and production of records in other common law jurisdictions, including Western Australia and Canada.

The DRCC's position is that counselling and psychotherapy notes have no place in the criminal justice system. Client notes reflect the work and healing space between therapist and client and, as such, reflect the internal world of the client. The notes should remain confidential to maintain the integrity and healing potential of that process. However, we also accept that there are a small number of necessary limitations to confidentiality, for example, if there is a threat to a person's life or if there is a child protection issue.

Until recently, the DRCC's policy was not to hand over client notes when requested by the criminal justice system. However, what happened in reality was quite different. When a client gave his or her permission to have his or her therapy notes disclosed and when subpoenaed by the judge, the DRCC handed over the notes. This policy was resulting in further trauma to our clients.

In addition, the absence of legislation specifically privileging therapy notes, as an interim measure to help alleviate this re-traumatisation to the client, the Dublin Rape Crisis Centre drew up a memorandum of understanding with the office of the Director of Public Prosecution. This memorandum of understanding sets out procedures for disclosure and ensures that the client is giving informed consent.

While this interim policy is proving to relieve the clients of the previous extra stress and upset, it is not as satisfactory as having a long-term legislative solution. We are hoping that the new legislation will be robust enough to ensure that psychotherapy and counselling notes are not readily disclosed; that there is acknowledgement of the complainant’s right to privacy, full separate legal representation to vindicate that right, and that respect is given to the counselling and psychotherapy process; and at the same time that the legislation permits the disclosure of psychotherapy and counselling notes where relevance has been established, thus affirming the accused person’s rights to a fair trial.

With regard to the definition of consent, belief in consent is an easy defence to raise but hard to disprove. We would like to see a definition of consent included in the new sex offences Bill and that we learn from the issues that have arisen from the definition in the United Kingdom Sexual Offences Act 2003, which states that "a person consents if he ... agrees, by choice and has the freedom and capacity to make that choice". However, terms such as "freedom", "choice" and "agreement" are complex and ambiguous concepts which defy precise definition. Other common law jurisdictions, for example New Zealand, provide a list of circumstances where consent is deemed as not being present and perhaps we could explore how we could have a combination of both definitions.

With regard to experimental sexual behaviour, we would hope that non-exploitative sexual expression between young people would be decriminalised by reference to a close age difference. We believe that experimental sexual behaviour between children of comparable age where there is no coercion or intimidation involved is not an offence.

With regard to the age of consent, the DRCC supports keeping the age of consent at 17. Two recent items of research in 2012 by the Crisis Pregnancy Agency and the Royal College of Surgeons point to the fact that men and women aged between 18 and 24 reported a median age of 17 for their first sexual intercourse experience. Most of them said it occurred at about the right time. Those who had sex before 17 were more likely to have wished that they had waited longer and less likely to have used contraception at first intercourse. Many of the young people with whom we work with in schools on the BodyRight programme say that being able to say that the age of consent is 17 is a protection for them.

We have the highest attrition rate in 11 European countries, to which my colleague referred. Rape and other sexual violent crimes are being committed with impunity. We need to stop this happening and by making the necessary changes to our laws that will support the victim remaining in the system and getting the case to court while at the same time ensuring that the accused gets a fair trial augurs well for a safer society for all. I thank the members for their attention.